Chapter XVI: Act VII: Be it enacted by this present Grand Assembly ... That the (8)

2. It is Ordered, sentensed and decreed, that the Election of the aforesaid Magestrats shall be on this manner: every person present and quallified for choyse shall bring in (to the persons deputed to receave them) one single paper with the name of him written in yt whom he desires to have Governour, and he that hath the greatest number of papers shall be Governor for that yeare. And the rest of the Magestrats or publike Officers to be chosen in this manner: The Secretary for the tyme being shall first read the names of all that are to be put to choise and then shall severally nominate them distinctly, and every one that would have the person nominated to be chosen shall bring in one single paper written uppon, and he that would not have him chosen shall bring in a blanke: and every one that hath more written papers then blanks shall be a Magistrat for that yeare; which papers shall be receaved and told by one or more that shall be then chosen by the court and sworne to be faythfull therein; but in case there should not be sixe chosen as aforesaid, besids the Governor, out of those which are nominated, then he or they which have the most written papers shall be a Magestrate or Magestrats for the ensueing yeare, to make up the foresaid number.

3. It is Ordered, sentenced and decreed, that the Secretary shall not nominate any person, nor shall any person be chosen newly into the Magestracy which was not propownded in some Generall Courte before, to be nominated the next Election; and to that end yt shall be lawfull for ech of the Townes aforesaid by their deputyes to nominate any two whom they conceave fitte to be put to Election; and the Courte may ad so many more as they judge requisitt.

4. It is Ordered, sentenced and decreed that noe person be chosen Governor above once in two yeares, and that the Governor be alwayes a member of some approved congregation, and formerly of the Magestracy within this Jurisdiction; and all the Magestrats Freemen of this Commonwelth: and that no Magestrate or other publike officer shall execute any parte of his or their Office before they are severally sworne, which shall be done in the face of the Courte if they be present, and in case of absence by some deputed for that purpose.

5. It is Ordered, sentenced and decreed, that to the aforesaid Courte of Election the severall Townes shall send their deputyes, and when the Elections are ended they may proceed in any publike searvice as at other Courts. Also the Generall Courte in September shall be for makeing of lawes, and any other publike occation, which conserns the good of the Commonwelth.

6. It is Ordered, sentenced and decreed, that the Governor shall, ether by himselfe or by the secretary, send out summons to the Constables of every Towne for the cauleing of these two standing Courts, on [_one_] month at lest before their severall tymes: And also if the Governor and the gretest parte of the Magestrats see cause uppon any spetiall occation to call a generall Courte, they may give order to the secretary soe to doe within fowerteene dayes warneing; and if urgent necessity so require, uppon a shorter notice, giveing sufficient grownds for yt to the deputyes when they meete, or els be questioned for the same; And if the Governor and [_major_] parte of Magestrats shall ether neglect or refuse to call the two Generall standing Courts or ether of them, as also at other tymes when the occations of the Commonwelth require, the Freemen thereof, or the Major parte of them, shall petition to them soe to doe: if then yt be ether denyed or neglected the said Freemen or the Major parte of them shall have power to give order to the Constables of the severall Townes to doe the same, and so may meete togather, and chuse to themselves a Moderator, and may proceed to do any Acte of power, which any other Generall Courte may.

7. It is Ordered, sentenced and decreed that after there are warrants given out for any of the said Generall Courts, the Constable or Constables of ech Towne shall forthwith give notice distinctly to the inhabitants of the same, in some Publike Assembly or by goeing or sending from howse to howse, that at a place and tyme by him or them lymited and sett, they meet and assemble them selves togather to elect and chuse certen deputyes to be at the General Courte then following to agitate the afayres of the commonwelth; which said Deputyes shall be chosen by all that are admitted Inhabitants in the severall Townes and have taken the oath of fidellity; provided that non be chosen a Deputy for any Generall Courte which is not a Freeman of this Commonwelth.

The foresaid deputyes shall be chosen in manner following: every person that is present and quallified as before expressed, shall bring the names of such, written in severall papers as they desire to have chosen for that Imployment, and these 3 or 4, more or lesse, being the number agreed on to be chosen for that tyme, that have greatest number of papers written for them shall be deputyes for that Courte; whose names shall be endorsed on the backe side of the warrant and returned into the Courte, with the Constable or Constables hand unto the same.

8. It is Ordered, sentenced and decreed, that Wyndsor, Hartford and Wethersfield shall have power, ech Towne, to send fower of their freemen as their deputyes to every Generall Courte; and whatsoever other Townes shall be hereafter added to this Jurisdiction, they shall send so many deputyes as the Courte shall judge meete, a resonable proportion to the number of Freemen that are in the said Townes being to be attended therein; which deputyes shall have the power of the whole Towne to give their voats and alowance to all such lawes and orders as may be for the publike good, and unto which the said Townes are to be bownd.

9. It is ordered and decreed, that the deputyes thus chosen shall have power and liberty to appoynt a tyme and a place of meeting togather before any Generall Courte to advise and consult of all such things as may concerne the good of the publike, as also to examine their owne Elections, whether according to the order, and if they or the gretest parte of them find any election to be illegall they may seclud such for [the] present from their meeting, and returne the same and their resons to the Courte; and if yt prove true, the Courte may fyne the party or partyes so intruding and the Towne, if they see cause, and give out a warrant to goe to a newe election in a legall way, either in parte or in whole. Also the said deputyes shall have power to fyne any that shall be disorderly at their meetings, or for not comming in due tyme or place according to appoyntment; and they may returne the said fynes into the Courte if yt be refused to be paid, and the Tresurer to take notice of yt, and to estreete or levy the same as he doth other fynes.

10. It is Ordered, sentenced and decreed, that every Generall Courte, except such as through neglecte of the Governor and the greatest parte of Magestrats the Freemen themselves doe call, shall consist of the Governor, or some one chosen to moderate the Court, and 4 other Magestrats at lest, with the major parte of the deputyes of the severall Townes legally chosen; and in case the Freemen or major parte of them, through neglect or refusall of the Governor and major parte of the magestrats, shall call a Courte, it shall consist of the major parte of Freemen that are present or their deputyes, with a Moderator chosen by them: In which said Generall Courts shall consist the supreme power of the Commonwelth, and they only shall have power to make lawes or repeale them, to graunt levyes, to admitt of Freemen, dispose of lands undisposed of, to severall Townes or persons, and also shall have power to call ether Courte or Magestrate or any other person whatsoever into question for any misdemeanour, and may for just causes displace or deale otherwise according to the nature of the offence; and also may deale in any other matter that concerns the good of this commonwelth, excepte election of Magestrats, which shall be done by the whole boddy of Freemen.

In which Courte the Governour or Moderator shall have power to order the Courte, to give liberty of spech, and silence unceasonable and disorderly speakeings, to put all things to voate, and in case the vote be equall to have the casting voice. But non of these Courts shall be adjorned or dissolved without the consent of the major parte of the Court.

11. It is ordered, sentenced and decreed, that when any Generall Courte uppon the occations of the Commonwelth have agreed uppon any summe or sommes of mony to be levyed uppon the severall Townes within this Jurisdiction, that a Committee be chosen to sett out and appoynt what shall be the proportion of every Towne to pay of the said levy, provided the Committees be made up of an equall number out of each Towne.

[=Hints for Study.=--=1.=--This was a great democratic constitution,--the first that ever "created a state." =_As a whole, it is an innovation; but very few passages in it, taken by themselves, are new._= The great bulk of the Orders came from Massachusetts' practice of the preceding five years (1634-1638), and most of it came, indeed, from express statutes of the older colony. Its peculiar democracy consisted in (1) _selecting_ all the democratic features of the Massachusetts government (leaving out all the more aristocratic features), and (2) in _adding_ a very few other democratic features, some of which these men had striven for in vain in Massachusetts.

_a._ For instances of selection:

(Article 1.) Massachusetts, during most of her history, had had "two General Courts," the Spring Court being a "Courte of Election," in which all magistrates were chosen for one year only.

(Articles 1, 2, 7, 9.) All the details of the elections of governor, magistrates, and town deputies, come from Massachusetts' _practice_ in the years 1635-1638, as did also the provision for preliminary caucusing by the deputies with control over their separate meetings.

Articles 5 and 10 may be compared with the democratic legislation of Massachusetts in 1634 (No. 67 _b_ (2), above).

Many minor resemblances will occur to the advanced student familiar with Massachusetts history.

_b._ Provisions which the democrats had wanted, but failed to secure, in Massachusetts: ineligibility of the governor for immediate reëlection (Article 4), and the method of nomination (Article 3; adopted also in Massachusetts two years later).

_c._ Democratic innovations: (1) making the sessions of the legislature independent of the will of the executive (Articles 6 and 10). Massachusetts had made the General Court master of its own adjournment but not of its meetings. Both the provisions were adopted by the Long Parliament in England two years later. (2) Leaving the franchise to be determined practically by the towns.

2.--Connecticut =did not reject theocracy=. Cf. the preamble and the eligibility provision for the governorship. In practice, too, the colony maintained a close union of Church and State. The restriction of the franchise to church members was rejected, not because it was theocratic, but because it was undemocratic.]

XVII. THE NEW ENGLAND CONFEDERATION

94. The Constitution

The text is printed in the _New Haven Colonial Records_ and in the
_Plymouth Colony Records_ (IX). For the history of the formation of
the Confederation, see _American History and Government_, ## 90, 91.

ARTICLES

_OF_

CONFEDERATION BETWIXT THE PLANTATIONS UNDER THE GOVERNMENT OF THE _MASSACHUSETTS_, THE PLANTATIONS UNDER THE GOVERNMENT OF _PLIMOUTH_, THE PLANTATIONS UNDER THE GOVERNMENT OF _CONNECTECUT_, AND THE GOVERNMENT OF _NEW HAVEN_, WITH THE PLANTATIONS IN COMBINATION THEREWITH.

Whereas we all came into these parts of _America_, with one and the same end and ayme, namely, to advance the Kingdome of our Lord Jesus Christ, and to enjoy the liberties of the Gospel, in purity with peace; and whereas in our settling (by a wise providence of God) we are further dispersed upon the Sea-Coast, and Rivers, then was at first intended, so that we cannot (according to our desire) with convenience communicate in one Government, and Jurisdiction; and whereas we live encompassed with people of severall Nations, and strange languages, which hereafter may prove injurious to us, and our posterity: And forasmuch as the Natives have formerly committed sundry insolencies and outrages upon severall Plantations of the English, and have of late combined against us. And seeing by reason of the sad distractions in _England_, which they have heard of, and by which they know we are hindred both from that humble way of seeking advice, and reaping those comfortable fruits of protection which, at other times, we might well expect; we therefore doe conceive it our bounden duty, without delay, to enter into a present Consotiation amongst our selves, for mutuall help and strength in all our future concernments, that, as in Nation, and Religion, so, in other respects, we be, and continue, One, according to the tenour and true meaning of the ensuing Articles.

I. Wherefore it is fully Agreed and Concluded by and between the parties, or Jurisdictions above named, and they doe joyntly and severally by these presents agree and conclude, That they all be, and henceforth be called by the name of, _The United Colonies of New-England_.

II. The said United Colonies for themselves, and their posterties doe joyntly and severally hereby enter into a firm and perpetuall league of friendship and amity, for offence and defence, mutuall advice and succour, upon all just occasions, both for preserving and propagating the truth, and liberties of the Gospel, and for their own mutuall safety, and wellfare.

III. It is further agreed, That the Plantations which at present are, or hereafter shall be settled within the limits of the _Massachusets_, shall be forever under the Government of the _Massachusets_. And shall have peculiar Jurisdiction amongst themselves, as an intire body; and that _Plimouth_, _Connecticut_, and _New-Haven_, shall each of them, in all respects, have the like peculiar Jurisdiction, and Government within their limits....

IV. It is also by these Confederates agreed, That the charge of all just Wars, whether offensive, or defensive, upon what part or Member of this Confederation soever they fall, shall both in men, provisions, and all other disbursements, be born by all the parts of this Confederation, in different proportions, according to their different abilities, in manner following, namely, That the Commissioners for each Jurisdiction, from time to time, as there shall be occasion, bring a true account and number of all the Males in each Plantation, or any way belonging to, or under their severall Jurisdictions, of what quality, or condition soever they be, from sixteen years old, to threescore, being inhabitants there. And that according to the different numbers, which from time to time shall be found in each Jurisdiction, upon a true, and just account, the service of men, and all charges of the war, be born by the poll: Each Jurisdiction, or Plantation, being left to their own just course, and custome, of rating themselves, and people, according to their different estates, with due respect to their qualities and exemptions among themselves, though the Confederation take no notice of any such priviledge. And that, according to the different charge of each Jurisdiction, and Plantation, the whole advantage of the War (if it please God so to blesse their endeavours) whether it be in Lands, Goods, or persons, shall be proportionably divided among the said Confederates.

V. It is further agreed, That if any of these Jurisdictions, or any Plantation under, or in Combination with them, be invaded by any enemy whomsoever, upon notice, and request of any three Magistrates of that Jurisdiction so invaded, The rest of the Confederates, without any further meeting or expostulation, shall forthwith send ayde to the Confederate in danger, but in different proportion, namely the _Massachusets_ one hundred men sufficiently armed, and provided for such a service, and journey. And each of the rest five and forty men, so armed and provided, or any lesse number, if lesse be required, according to this proportion. ... But none of the Jurisdictions to exceed these numbers, till by a meeting of the Commissioners ... a greater ayde appear necessary....

VI. It is also agreed, That for the managing and concluding of all affaires proper to, and concerning the whole Confederation, two Commissioners shall be chosen by, and out of the foure Jurisdictions, namely two for the _Massachusets_, two for _Plimouth_, two for _Connecticut_, and two for _New-haven_, being all in Church-fellowship with us, which shall bring full power from their severall generall Courts respectively, to hear, examine, weigh, and determine all affaires of war, or peace, leagues, aydes, charges, and numbers of men for war, division of spoyles, or whatsoever is gotten by conquest, receiving of more confederates, or Plantations into Combination with any of these Confederates, and all things of like nature, which are the proper concomitants, or consequences of such a Confederation, for amity, offence, and defence, not intermedling with the Government or any of the Jurisdictions, which by the third Article, is preserved entirely to themselves. But if these eight Commissioners when they meet, shall not all agree, yet it is concluded, =That any six of the eight agreeing, shall have power to settle and determine the businesse in question=. =But if six doe not agree, that then such Propositions=, with their Reasons, so far as they have been debated, =be sent, and referred to the foure Generall Courts=, _viz._ The Massachusetts, Plymouth, Connectecut, and New-haven. ... It is further agreed, That these eight Commissioners shall meet once every year, besides extraordinary meetings, according to the fifth Article to consider, treat, and conclude of all affaires belonging to this Confederation, which meeting shall ever be the first _Thursday_ in _September_. [Provision for meeting at the several capital cities in rotation.]

VII. It is further agreed, That at each meeting of these eight Commissioners, whether ordinary or extraordinary; they all, or any six of them agreeing as before, may choose their President out of themselves ... [to secure] a comely carrying on of all proceedings in the present meeting. But he shall be invested with no such power or respect, as by which, he shall hinder the propounding or progresse of any businesse, or any way cast the scales, otherwise then in the precedent Article is agreed.

VIII. It is also agreed, That the Commissioners for this Confederation hereafter at their meetings, whether ordinary or extraordinary, as they may have Commission or opportunity, doe endeavour to frame and establish Agreements and Orders in generall cases of a civil nature, wherein all the Plantations are interested, for preserving peace amongst themselves, and preventing (as much as may be) all occasions of war, or differences with others, as about the free and speedy passage of Justice in each Jurisdiction, to all the Confederates equally, as to their own, receiving those that remove from one Plantation to another, without due Certificates, how all the Jurisdictions may carry it towards the _Indians_, that they neither grow insolent, nor be injured without due satisfaction, least War break in upon the Confederates, through such miscarriages. It is also agreed, That if any Servant run away from his Master, into any other of these Confederated Jurisdictions, That in such case, upon the Certificate of one Magistrate in the Jurisdiction, out of which the said Servant fled, or upon other due proof, the said Servant shall be delivered either to his Master, or any other that pursues, and brings such Certificate, or proof. And that upon the escape of any Prisoner whatsoever, or fugitive, for any Criminall Cause, whether breaking Prison, or getting from the Officer, or otherwise escaping, upon the Certificate of two Magistrates of the Jurisdiction out of which the escape is made, that he was a prisoner or such an offendor, at the time of the escape, the Magistrates of that Jurisdiction where for the present the said prisoner or fugitive abideth, shall forthwith grant such a Warrant as the case will bear, for the apprehending of any such person, and the delivery of him into the hand of the person who pursueth him....

[IX. No one of the confederates to engage in any (offensive) war, without the vote of the commissioners, "as in the sixth Article is provided."]

XI. It is further agreed, That if any of the Confederates shall hereafter break any of these presents Articles, or be any other way injurious to any one of the other Jurisdictions, such breach of Agreement, or injury, shalbe duly considered and ordered by the Commissioners for the other Jurisdictions, that both peace, and this present Confederation, may be intirely preserved without violation.

Lastly, this perpetuall Confederation, and the severall Articles and Agreements thereof, being read and seriously considered, [statement of subscription by authority of the respective confederate governments.]

95. Massachusetts Demands More Weight

_Plymouth Colony Records_, I, 16-17, 118-120, 126-128.

(1) _At a meetinge of the Commissioners for the united Colonies
in New England at Hartford the fift of September 1644_

... The Commissioners for the Massachusetts mooved that a due order might be attended in the subscriptions of the Acts and determinacions of this and any future meetings of the Commissioners for the united Colonies, and expressed not onely their owne apprehensions but the judgment of their generall Court, That by the Articles of Confederacion the first place did of Right belong to the Massachusetts, as being first named and so the other Colonies in like order. Which being taken into consideracion, and the Articles of Confederacion read, It appeared evidently to the Comissioners that no such priviledge had beene ever ... graunted ... by the Comissioners for the Jurisdicions in either of their former meetings, and yet the first subscription was made in the presence of the generall Court of the Massachusetts. And to prevent future inconvenience upon this occation, they thought fitt to declare that this Commission is free and may not receive any thing (not expresly agreed in the Articles) as imposed by any generall Court; yet out of their respects to the Government of the Massachusetts they did _willingly_ graunt that their Comissioners [those of Massachusetts] should first subscribe after the President in this and all future meetings, and the Comissioners for the other Colonies in such order as they are named in the Articles; viz., Plymouth, Conectacutt, and New Haven.

* * * * *

(2) _At a Meting of the Commissioners of the United colonyes of New England: held at New Plymouth the 7th, 7th, 1648_

... the Comissioners for the Matathusetts presented to the Comissioners of the other Colonyes a writeing from a Comitee of theire Generall Courte desiering that a dew Consideracion may bee had thereof, in answer to the Severall pticulers. The wrighting is as Followeth....

"Wheareas in Cace sixe of the Comissioners shall not agree the
Cause is to be refered to the fouer Generall Courtes, and by theire
Joynte agrements to be determined, etc.,--to be considered if it
were not more expedient to bee determined upon the agrement of any
three of them....

"Wheareas by the .6. Article each of the Colonyes is to have two
Comissioners, and the Colony of the Matathusetts beares almost
five for one in the proportion of Charge with any one of the
rest, they desier to have one Comissioner more; or otherwise they
shall be content that any other of the Colonyes shall have the
same priviledg to have three Comissioners to the other twoe, if
such Colonyes will beare the Licke proporcion of Chardg with the
Matathusetts. ..."

The Comissioners having perused and with dew Respect Considered the former proposicions....

In caces proper to the Comissioners wheareas by the sixth article, if sixe Agree not, the proposicions with the Reasons are to be Refered to the Fower Generall Courts: the Comissioners aproveing the Mocion made by the Comity of the Masachusets doe recomend it to the Fower Generall Courts that, if any ... three of the saide Courts agree ... of any such proposicion, it shall passe and bee accoumpted as the Conclusion of the united Colonyes, as it should have passed as ane act of the Comissioners if sixe of them had consented: For the 5th, sixth and seventh proposicions presented from the Comissioners of the Masachusetts, Importeing a reall Chang in the tearmes and Covenants of Confideration,--as noe alteracion Can bee made without the Consent of all and each of the Generall Courts, soe the Comissioners Feare that any of the Alteracions mencioned would prove dangerous and Inconvenient to all or som of the Colonyes. The tacken [taking] of the Number of malles they hope need not bee frequent; Nor, as it hath been Caryed by the Comissioners, inconvenient. In point of the seventh proposicion they Conscaive there is a mistack: the Lardge trade of the Masachusets, besides theire Numbers, afford many advantages in Reference to estates which the other Colonyes wante; but (it is from the Free grace of god that all and each have what they have) they diser [them] to bee thainkefull.

96. Nullification by Massachusetts

_Plymouth Colony Records_, X, 74-76. Cf. _American History and
Government_, # 93. The following extracts from a declaration of
the Massachusetts General Court put an end to the attempt of the
other three colonies in the New England Confederation to force
Massachusetts to join in a war against New Netherlands.

_The question propounded by the General Court of the Massachusetts_ [_June 2/12, 1653_].

... Whether the Comissioners of the united Collonies have power by articles of agreement to determine the Justice of an offencive or vindictive warr and to engage the Collonies therin;

The Answare of the Committies to the question,--first more particularly from the Articles:

The whole power of Government and Jurisdiction is in the 3d and sixt Articles refered to every Collonie whoe sawe not meet to divest themselves of theire authoritie to Invest the Comissioners with any part therof being altogether unsafe and unnessesary to attaine the end of the Confeaderation;

The 9. and 10th Articles constituteth the Comissioners Judges of the Justice of a defencive warr

The 4th and 5th settle Rules for Leagues, Aides, and number in a defencive warr, and devisions of spoiles; but noe where provide for the determination of the Justice of an offencive warr, which therfore is refered wholy to the Determination of the Supreame Power of the severall Confeaderate Jurisdictions, whoe would have otherwise provided in the case.

The sixt Article, which att first view seemes to Inable the Comissioners, will evidently evince the Contrary. For, the Confederation being betwixt the Collonies, the 4th, and fift, 9, and 10th Articles provid Rules in severall Cases according to which the Confeaderates have bound themselves to Acte; And the sixt Article onely orders and appoints whoe and in what mannor the said Rules and agreements should bee executed viz. by Comissioners Improved to acte in cases specif[y]ed and regulated,--for theire number, mannor of proceeding, times and places of meeting, in the sixt and seaventh Articles; And that by nessesitie; because the supreame power of the severall Jurisdictions Could not assemble, they were enforced to Substitute deligates to order such things as were of present and urgent Nessesitie, or meerly prudenciall or polliticall or of Inferior nature, and that according to _themselves_ [the Rules] prescribed by the Confeaderates. But such things [as] require the Choise Actes of Authoritie; or [are] in theire nature of Morrall Consideration and may admite of more time of Deliberation (as an offencive warr), The Wisdome of the Countrivers of the Confederacy did not Judg meete to Refere to Comissioners, and therfore [they] have not provided any Rules in such cases in these Consernments as they did in all cases of an Inferior nature;

_More Generally_:[88] The Comissioners of the united Collonies are not, soe fare as wee can deserne, Invested with power to Conclude an offencive warr to engage the Collonies to which they belonge to put the same in execution further then they are enabled by Comission or Instructions under the seale of theire Collonie; much lesse can it stand with the Jurisdiction and Right of Government reserved to ever[y] Collonie for six Comissioners of the other Collonies to put forth any Acte of power in a vindictive warr wherby they shall comaund the Collonie decenting to assist them in the same; neither can it bee the meaning of the severall Collonies whoe are soe tender of theire power in Governing theire owne that they should put theire power out of theire owne hands in the most waighty points (A bondage hardly to bee borne by the most Subjective people), And cannot bee conceived soe free a people as the united Collonies should submite unto;

It can bee noe lesse then _a contradiction_ to affeirme the Supreame power (which wee take to bee the Generall Courts of every Jurisdiction) can bee comaunded by others: _an absurditie in pollicye_, that an Intire Government and Jurisdiction should prostitute itselfe to the Comaund of Strangers; _a Scandall in Religion_, that a generall court of Christians should bee oblidged to acte and engage upon the faith of six Delligates against theire Consience;--all which must bee admited in case wee acknowlidg ourselves bound to undertake an offencive warr upon the bare determination of the Comissioners, whoe can not nor ever did challenge Authoritie over us, or expecte Subjection from us....

[Observe that the Massachusetts government did flatly nullify a
decree of the federal congress of the United Colonies. However,
it tried to justify itself, not by an avowal of its power, but by
a constitutional argument. Massachusetts claimed first that the
sixth article (which made the vote of six commissioners binding
upon the whole confederation) could apply only to such matters as
have been plainly referred to the Commissioners by other parts
of the Constitution; and second, that the authority claimed by
the federal Congress was inconsistent with the fundamental idea
of a confederation, even as it had been understood by the other
confederates.

John Fiske says that this argument begins "the development of
constitutional law, in the American sense,"--as an attempt to
interpret a written constitution. The whole debate makes an
interesting prelude to the later arguments of the nullifiers and
secessionists in the nineteenth century.]

FOOTNOTES:

[88] This paragraph begins the second half of the argument,--based not on the particular Articles of Confederation, but upon the nature of such federal government in general.

C. COLONIAL AMERICA, 1660-1760

=The documents selected for this period are much more isolated than
those given above for the earlier colonial period. It is usually
impossible in a class to do more than use a few illustrative
sources for this long and difficult period; and some documents
which might be expected are omitted because of the extracts given
from them in the _American History and Government_.=

XVIII. LIBERAL CHARTERS, 1662, 1663[89]

97. The Connecticut Charter

April 23/May 3, 1662

_Connecticut Colonial Records_, II, 3-11.

The complete document would fill some ten pages of this volume.
Parts of it are plainly copied from the Massachusetts Bay charter
of 1629. Indeed the whole document has the _form_ of a charter
to a _proprietary_ "_Company_." This company, however, was a
"_Corporation upon the place_," not a corporation in England
managing a distant property. It was the first such corporation to
receive a grant from the crown.

The parts of the charter here given are selected to show (1) the
powers of self-government and (2) the inclusion of New Haven.
The charter was adopted as the State Constitution in 1776, and
continued in force, with very slight change, until 1818.

#Charles the Second#, [&c.] =Whereas= ... Severall Lands, ... and Plantations have byn ... setled in that parte of ... America called New England, and thereby the Trade ... there hath byn of late yeares much increased, =And whereas=, We have byn informed by the humble Petition of our Trusty and welbeloved John Winthrop [and eighteen others], being Persons Principally interested in our Colony ... of Conecticutt in New England, that the same Colony ... was purchased and obteyned for greate and valuable considerations, and thereby become a considerable enlargment and addition of our Dominions and interest there,--=Now Know yee=, that in Consideration thereof, and in regard the said Colony is remote from other the English Plantations in the Places aforesaid, And to the end the Affaires and Busines which shall from tyme to tyme happen or arise concerning the same may bee duely Ordered and managed, Wee ... Doe Ordeine, Constitute and Declare That they, the said John Winthrop [and others] =_and all such others as now are or hereafter shall bee Admitted and made free of the Company and Society of our Collony of Conecticut in America_=, shall ... bee one Body Corporate and Pollitique in fact and name, by the Name of _Governour and Company of the English Collony of Conecticut in New England in America_; ... =And= further, wee ... =Doe= Declare and appoint, that for the better ordering and manageing of the affairs and businesse of the said Company and their Successors, there shall be one Governour, one Deputy Governour, and Twelve Assistants, to bee from tyme to tyme Constituted, Elected and Chosen out of the Freemen of the said Company for the tyme being, in such manner and forme as hereafter in these presents is expressed. And ... =Wee doe= ... Constitute and appoint the aforesaid John Winthrop to bee the first and present Governour of the said Company; [appointment of Deputy Governor and Assistants]; to continue in the said severall Offices respectively untill the second Thursday which shall bee in the Moneth of October now next comeing. =And= further, wee ... =Doe= Ordaine and Graunt that the Governour ... for the tyme being, or, in his absence ... the Deputy Governour ... shall and may ... upon all occasions give Order for the assembling of the said Company ... to Consult and advice of the businesse and Affaires of the said Company, And that for ever hereafter, Twice in every yeare, (That is to say,) on every second Thursday in October and on every second Thursday in May, or oftener, in Case it shall be requisite, The Assistants and freemen of the said Company, or such of them (not exceeding twoe Persons from each place, Towne or Citty) whoe shall bee from tyme to tyme thereunto Elected or Deputed by the major parte of the freemen of the respective Townes ... shall have a generall meeting or Assembly, then and their to Consult and advise in and about the Affaires and businesse of the said Company; And that the Governour, or ... Deputy Governour ..., and such of the Assistants and freemen of the said Company as shall be soe Elected or Deputed and bee present att such meeting or Assembly, or the greatest number of them (whereof the Governour or Deputy Governour and Six of the Assistants, at least, to bee Seaven) shall be called the =_Generall Assembly, and shall have full power and authority to alter and change their dayes and tymes of meeting or General Assemblies for Electing the Governour Deputy Governour and Assistants or other Officers, or any other Courts, Assemblies or meetings, and to Choose, Nominate and appoint such and soe many other Persons as they shall thinke fitt and shall bee willing to accept the same, to bee free of the said Company and Body Politique, and them into the same to Admitt and to Elect, and Constitute such Officers as they shall thinke fitt and requisite for the Ordering, mannageing, and disposeing of the Affaires of the said Governour and Company and their Successors_. And wee doe hereby ... _Establish and Ordeine, that once in the yeare ..., namely, the said Second Thursday in May, the Governour, Deputy Governour and Assistants of the said Company and other Officers of the said Company, or such of them as the said Generall Assembly shall thinke fitt, shall bee, in the said Generall Court and Assembly to bee held from that day or tyme, newly Chosen for the yeare ensuing, by such greater part of the said Company for the tyme being then and there present_. ... And wee doe further= ... Graunt that it ... shall ... bee lawfull [for any General Assembly,] to Erect and make ... Judicatories for the heareing and Determining of all Actions ... =_And alsoe from tyme to tyme to Make, Ordaine, and Establish All mannner of wholesome and reasonable Lawes, Satutes, Ordinances ... and Instructions, not contrary to the lawes of this Realme of England ... which they shall find needfull for the Government ... of the said Colony_=. ... =And Knowe yee further=, That Wee ... Doe give, Graunt and Confirme unto the said Governor and Company and their Successors, All that parte of our Dominions in New England in America bounded on the East by Norrogancett River, comonly called Norrogancett Bay, where the said River falleth into the Sea, and on the North by the lyne of the Massachusetts Plantation, and on the South by the Sea, and in longitude as the lyne of the Massachusetts Colony, runinge from East to West, (that is to say,) from the said Norrogancett Bay on the East to the South Sea on the West....

98. The Rhode Island Charter

July 8/18, 1663

_Rhode Island Colonial Records_, II, 3-20.

John Clarke, an agent for the colony, presented a petition for a
charter to Charles II in January, 1661.

... =Whereas= we have been informed ... on behalf of Benjamine Arnold, William Brenton [here follow twelve names] and the rest of the purchasers and ffree inhabitants of our island, called #Rhode-Island#, and the rest of the colonie of Providence Plantations, in the Narragansett Bay, in New-England, in America, that they, pursueing, with peaceable and loyall mindes, their sober, serious and religious intentions, of godlie edifieing themselves, and one another, in the holie Christian ffaith and worshipp _as they were perswaded_: togother with the gaineing over and conversione of the poore ignorant Indian natives, in those partes of America, to the sincere professione and obedienc of the same ffaith and worship, did, not onlie by the consent and good encouragement of our royall progenitors, transport themselves out of this kingdome of England into America, but alsoe, since their arrivall there, after their first settlement amongst other our subjects in those parts, ffor the avoideing of discorde, and those manie evills which were likely to ensue upon some of those oure subjects not beinge able to beare, in these remote partes, theire different apprehensiones in religious concernments, and in pursueance of the afforesayd ends, did once againe leave theire desireable stationes and habitationes, and with excessive labor and travell, hazard and charge, did transplant themselves into the middest of the Indian natives, who, as wee are infformed, are the most potent princes and people of all that country; where, by the good Providence of God, from whome the Plantationes have taken their name, upon theire labour and industrie, they have not onlie byn preserved to admiration, but have increased and prospered, and are seized and possessed, by purchase and consent of the said natives, to their ffull content, of such lands, islands, rivers, harbours and roades, as are verie convenient, both for plantationes and alsoe for buildinge of shipps, suplye of pype-staves, and other merchandize; and which lyes verie commodious, in manie respects, for commerce, and to accomodate oure southern plantationes, and may much advance the trade of this oure realme, and greatlie enlarge the territories thereof; they haveinge, by neare neighbourhoode to and friendlie societie with the greate bodie of the Narragansett Indians, given them encouragement, of theire owne accorde, to subject themselves, theire people and landes, unto us; whereby, as is hoped, there may, in due tyme, by the blessing of God upon theire endeavours, bee layd a sure ffoundation of happinesse to all America: =#And whereas#, _in theire humble addresse, they have ffreely declared, that it is much on their hearts (if they may be permitted), to hold forth a livelie experiment, that a most flourishing civill state may stand and best bee maintained, and that among our English subjects, with a full libertie in religious concernements; and that true pietye rightly grounded upon gospell principles, will give the best and greatest security to sovereignetye, and will lay in the hearts of men the strongest obligations to true loyaltie:_ #Now know yee#, _that wee beinge willinge to encourage the hopefull undertakeinge of oure sayd loyall and loveinge subjects, and to secure them in the free exercise and enjoyment of all theire civill and religious rights, appertaining to them, as our loveing subjects; and to preserve unto them that libertye, in the true Christian ffaith and worshipp of God, which they have sought with soe much travaill, and with peaceable myndes, and loyall subjectione to our royall progenitors and ourselves, to enjoye; and because some of the people and inhabitants of the same colonie cannot, in theire private opinions, conforme to the publique exercise of religion, according to the litturgy, formes and ceremonyes of the Church of England, or take or subscribe the oaths and articles made and established in that behalfe; and for that the same, by reason of the remote distances of those places, will_= (=_as wee hope_=) =_bee noe breach of the unitie and unifformitie established in this nation: ... doe hereby ... declare, That our royall will and pleasure is, that noe person within the sayd colonye, at any tyme hereafter, shall bee any wise molested, punished, disquieted, or called in question, for any differences in opinione in matters of religion, and_ [_i.e., if he_] _doe not actually disturb the civill peace of our sayd colony; but that all and everye person and persons may, from tyme to tyme, and at all tymes hereafter, freelye and fullye have and enjoye his and theire owne judgments and consciences, in matters of religious concernments, throughout the tract of lande hereafter mentioned; they behaving themselves peaceablie and quietlie, and not useing this libertie to lycentiousnesse and profanenesse, nor to the civill injurye or outward disturbeance of others; any lawe, statute, or clause, therein contayned, or to bee contayned, usage or custome of this realme, to the contrary hereof, in any wise, notwithstanding._= And that they may bee in the better capacity to defend themselves, in theire just rights and libertyes ... #wee# ... doe ordeyne, ... That they, the sayd William Brenton ... [and others] and all such others as now are, or hereafter shall bee admitted and made ffree of the company and societie of our collonie of Providence Plantations, in the Narragansett Bay, in New-England, shall bee, from tyme to tyme, and forever hereafter, a bodie corporate and politique, ... by the name of #The Governour and Company of the English Collonie of Rhode-Island and Providence Plantations, in New-England, in America.# ... #And further#, wee ... doe declare ... that ... there shall bee one Governour, one Deputie-Governour and ten Assistants, to bee from tyme to tyme, constituted, elected and chosen, out of the freemen of the sayd Company, for the tyme beinge, in such manner and fforme as is hereafter in these presents expressed. ... [First set of magistrates named, to continue until the next Court.] #And further#, wee ... doe ordeyne ... that the Governor of the sayd Company, for the tyme being, or, in his absence, by occassion of sicknesse, or otherwise, by his leave and permission, the Deputy-Governor, ffor the tyme being, shall and may, ffrom tyme to tyme, upon all occassions, give order ffor the assemblinge of the sayd Company, and callinge them together, to consult and advise of the businesse and affaires of the sayd Company. #And that# forever hereafter, twice in every year, that is to say, on every first Wednesday in the moneth of May, and on every last Wednesday in October, or oftener, in case it shall bee requisite, the Assistants, and such of the ffreemen of the Company, not exceedinge six persons ffor Newport, ffoure persons ffor each of the respective townes of Providence, Portsmouth and Warwicke, and two persons for each other place, towne or city, whoe shall bee, from tyme to tyme, thereunto elected or deputed by the majour parte of the ffremen of the respective townes or places ... shall have a generall meetinge, or Assembly then and there to ... determine ... the affaires and businesse of the said Company and Plantations. #And further#, wee doe ... give and graunt unto the sayd Governour and Company of the English collony of #Rhode-Island and Providence Plantations#, in New-England, in America, and theire successours, that the Governour, or, in his absence, or, by his permission, the Deputy-Governour of the sayd Company, for the tyme beinge, the Assistants, and such of the ffreemen of the sayd Company as shall bee soe as aforesayd elected or deputed, or soe many of them as shall bee present att such meetinge or assemblye, as afforesayde, shall bee called the Generall Assemblye; and that they, or the greatest parte of them present (whereof the Governour or Deputy-Governour, and sixe of the Assistants, at least to bee seven) shall have ... ffull power [and] authority, ffrom tyme to tyme, and at all tymes hereafter, to apoynt, alter and change, such dayes, tymes and places of meetinge and Generall Assemblye, as theye shall thinke ffitt; #And further# [other powers of the Assembly, as in the Connecticut Charter] ... wee doe ... establish and ordeyne, that yearelie, once in the yeare, forever hereafter, namely, the aforesayd Wednesday in May, and at the towne of Newport, or elsewhere, if urgent occasion doe require, the Governour, Deputy-Governour and Assistants of the sayd Company, and other officers of the sayd Company, or such of them as the Generall Assemblye shall thinke ffitt, shall bee, in the sayd Generall Court or Assembly to bee held from that daye or tyme, newly chosen for the year ensueing, by such greater part of the sayd Company, for the tyme beinge, as shall bee then and there present....

[Provisions for temporary government; for prevention of Indian troubles in relation to other colonies; for boundaries, etc.] #And further#, our will and pleasure is, that in all matters of publique controversy which may fall out betweene our Collony of Providence Plantations, and the rest of our Collonies in New-England, itt shall and may bee lawful to and for the Governour and Company of the sayd Collony of Providence Plantations to make their appeals therein to us, our heirs and successours, for redresse in such cases, within this our realme of England:[90] and that itt shall be lawfull to and for the inhabitants of the sayd Collony of Providence Plantations, without let or molestation, to passe and repasse with freedome, into and through the rest of the English Collonies, upon their lawfull and civill occasions, and to converse, and hold commerce and trade, with such of the inhabitants of our other English Collonies as shall bee willing to admitt them thereunto, they behaveing themselves peaceably among them; any act, clause or sentence, in any of the sayd Collonies provided, or that shall bee provided, to the contrary in anywise notwithstanding....

FOOTNOTES:

[89] For the conditions under which a despotic king granted these amazingly liberal charters, cf. _American History and Government_.

[90] Observe, this is _not_ an appeal from the colonial court by _an individual_. The clause has reference to the troubles, then recent, between Rhode Island and Massachusetts--the latter having threatened to exclude Rhode Island commerce.

XIX. AN ENGLISH COLONIAL SYSTEM

99. Instructions for the Councill oppointed for Forraigne Plantations (1660) by Charles II

O'Callaghan's _Documents relative to the Colonial History of New
York_ (1853), III, 34-36.

For the significance of this first permanent "Colonial Department,"
cf. _American History and Government_, # 95.

1. You shall informe yourselves by the best wayes and meanes you can of the state and condicion of all Forraigne Plantac[i]ons, and by what co[m]missions or authorities they are and have bene governed and disposed of; and are to procure either from such persons as have any graunts thereof from the Croun, or from the records themselves, the copies of all such commissions or graunts, to be transcribed and registered in a booke provided for that purpose, that you may be the better able to understand judge and administer such affaires, as by your commission and instruccions are intrusted to your care and management.

2. You shall forthwith write letters to evrie of our Governors for the time being of all our English Plantacions and to evrie such person or persons who by any Letters Pattents from us or any of our predcesors doe claime or exercise a right of governement in any of the said plantacions in which letteres you are to informe them of our gratious care and provision in their behalfe both in erecting a General Councill of Trade wherein their concernments are mingled and provided for with the rest of our dominions and especially of this particular Councell which is applyed only to the inspeccion care and conduct of Forraigne Plantacions.

3. You are in the said letters to require the said Governors and persons above mesioned, to send unto you in writeing with the advise of the Councell of evrie of the said plantacions respectively, perticuler and exact accompt of the state of their affaires; of the nature and constitucoin of their lawes and governement and in what modell and frame they move and are disposed; what numbers of men; what fortifications and other strengths and defences are upon the place, and how furnished and provided for.

4. You are to order and settle such a continuall correspondencie that you may be able, as often as you are required thereunto, to give up to us an accompt of the Government of each Colonie; of their complaints, their wants, their abundance; of their severall growths and commodities; of every shipp trading there and its ladeing and whither consigned; and what the proceeds of that place have beene in the late yeares; that thereby the intrinsick value and the true condicion of each part and of the whole may be thoroughly understood; whereby a more steady judgement and ballance may be made for the better ordering and disposing of trade and of the proceede and improvements of the Plantacions; that soe each place within it selfe, and all of them being collected into one viewe and management here, may be regulated and ordered upon common and equall ground and principles.

5. You are to applie your selves to all prudentiall meanes for the rendering those dominions usefull to England and England helpfull to them, and for the bringing the severall Colonies and Plantacions, within themselves, into a more certaine civill and uniforme goverenment and for the better ordering and distributeing of publique justice among them.

6. You are to enquire diligently into the severall governments and Councells of Colonies Plantacions and distant Dominions, belonging to other Princes or States, and to examine by what conduct and pollicies they governe or benefit them; and you are to consult and provide that if such councells be good wholsome and practiceable, they may be applied to the use of our Plantacions; or if they tend or were designed to the prejudice or disadvantage thereof or of any of our subjects or of trade or commerce, how they may be ballanced or turned back upon them.

* * * * *

11. You are lastly required and impowered to advise order settle and dispose of all matters relating to the good governmt improvement and management of our Forraine Plantacôns or any of them, with your utmost skill direccon and prudence. And in all cases wherein you shall judge that further powers and assistants shall be necessary, you are to addresse your selves to us [or] our Privy Councill for our further pleasure resolucôn and direccôns therein.

100. The Commercial Policy

_a. "First"[91] Navigation Act, 1660_

_Statutes of the Realm_, V, 246-250. The act is known as 12 Car.
II, c. 18. The text would fill some ten pages of this volume. For
history and references upon this and subsequent navigation acts,
cf. _American History and Government_, ## 96, 116.

AN ACT for the Encourageing and increasing of Shipping and
Navigation.