The mysteries of the Holy Catholic Church had been venerated for ages when Europe burst from her mediæval torpor into the splendor of the Renaissance. Political schemes and papal abuses may have precipitated the inevitable outbreak, but in the dawn of modern thought the darkness faded amidst which mankind had so long cowered in the abject terrors of superstition. Already in the beginning of the fifteenth century many of the ancient dogmas had begun to awaken incredulity, and sceptics learned to mock at that claim to infallibility upon which the priesthood based their right to command the blind obedience of the Christian world. Between such adversaries compromise was impossible; and those who afterward revolted against the authority of the traditions of Rome sought refuge under the shelter of the Bible, which they grew to reverence with a passionate devotion, believing it to have been not only directly and verbally inspired by God, but the only channel through which he had made known his will to men.

Thus the movement was not toward new doctrines; on the contrary, it was the rejection of what could no longer be believed. Calvin was no less orthodox than St. Augustine in what he accepted; his heresy lay in the denial of enigmas from which his understanding recoiled. The mighty convulsion of the Reformation, therefore, was but the supreme effort of the race to tear itself from the toils of a hierarchy whose life hung upon its success in forcing the children to worship the myths of their ancestral religion.

Three hundred years after Luther nailed his theses to the church door the logical deduction had been drawn from his great act, and Christendom had been driven to admit that any concession of the right to reason upon matters of faith involved the recognition of the freedom of individual thought. But though this noble principle has been at length established, long years of bloodshed passed before the victory was won; and from the outset the attitude of the clergy formed the chief obstacle to the triumph of a more liberal civilization; for howsoever bitterly Catholic and Protestant divines have hated and persecuted each other, they have united like true brethren in their hatred and their persecution of heretics; for such was their inexorable destiny.

Men who firmly believe that salvation lies within their creed alone, and that doubters suffer endless torments, never can be tolerant. They feel that duty commands them to defend their homes against a deadly peril, and even pity for the sinner urges them to wring from him a recantation before it is too late; and then, moreover, dissent must lessen the power and influence of a hierarchy and may endanger its very existence; therefore the priests of every church have been stimulated to crush out schism by the two strongest passions that can inflame the mind—by bigotry and by ambition.

In England the Reformation was controlled by statesmen, whose object was to invest the crown with ecclesiastical power, and who made no changes except such as they thought necessary for their purpose. They repudiated the papal supremacy, and adopted articles of religion sufficiently evangelical in form, but they retained episcopacy, the liturgy, and the surplice; the cross was still used in baptism, the people bowed at the name of Jesus, and knelt at the communion. Such a compromise with what they deemed idolatry was offensive to the stricter Protestants, and so early as 1550 John Hooper refused the see of Gloucester because he would not wear the robes of office; thus almost from its foundation the church was divided into factions, and those who demanded a more radical reform were nicknamed Puritans. As time elapsed large numbers who could no longer bring themselves to conform withdrew from the orthodox communion, and began to worship by themselves; persecution followed, and many fled to Holland, where they formed congregations in the larger towns, the most celebrated of them being that of John Robinson at Leyden, which afterward founded Plymouth. But the intellectual ferment was universal, and the same upheaval that was rending the church was shaking the foundations of the state: power was passing into the hands of the people, but a century was to elapse before the relations of the sovereign to the House of Commons were fully adjusted. During this interval the Stuarts reigned and three of the four kings suffered exile or death in the fierce contest for mastery.

The fixed determination of Charles I. was to establish a despotism and enforce conformity with ritualism; and the result was the Great Rebellion.

Among the statesmen who advised him, none has met with such scant mercy from posterity as Laud, who has been gibbeted as the impersonification of narrowness, of bigotry, and of cruelty. The judgment is unscientific, for whatever may be thought of the humanity or wisdom of his policy, he only did what all have done who have attempted to impose a creed on men.

The real grievance has never been that an observance has been required, or an indulgence refused, but that the right to think has been denied. Provided a boundary be fixed within which the reason must be chained, the line drawn by Laud is as reasonable as that of Calvin; Geneva is no more infallible than Canterbury or Rome. Comprehension is the dream of visionaries, for some will always differ from any confession of faith, however broad; and where there are dogmas there will be heretics till all have perished. But in their fear and hatred of individual free thought regarding the mysteries of religion, Laud, Calvin, and the Pope agreed.

With the progress of the war, the Puritans, who had at first been united in their opposition to the crown, themselves divided; one party, to which most of the peers and of the non-conforming clergy belonged, being anxious to reestablish the monarchy, and set up a rigid Presbyterianism; the other, of whose spirit Cromwell was the incarnation, resolving each day more firmly to crush the king and proclaim freedom of conscience; and it was this doctrine of toleration which was the snare and the abomination in the eyes of evangelical divines.

Robert Baillie, the Scotch commissioner, while in London, anxiously watching the rise of the power of the Independents in Parliament, with each victory of their armies in the field wrote, “Liberty of conscience, and toleration of all and any religion, is so prodigious an impiety that this religious parliament cannot but abhor the very meaning of it.” Nor did his reverend brethren of the Westminster Assembly fall any whit behind him when they rose to expound the word. In a letter of 17th May, 1644, he thus described their doctrine: “This day was the best that I have seen since I came to England.... After D. Twisse had begun with a brief prayer, Mr. Marshall prayed large two hours, most divinely, confessing the sins of the members of the assembly, in a wonderful, pathetick, and prudent way. After, Mr. Arrowsmith preached an hour, then a psalm; thereafter, Mr. Vines prayed near two hours, and Mr. Palmer preached an hour, and Mr. Seaman prayed near two hours, then a psalm; after, Mr. Henderson brought them to a sweet conference of the heat confessed in the assembly, and other seen faults to be remedied, and the conveniency to preach against all sects, especially Anabaptists and Antinomians. Dr. Twisse closed with a short prayer and blessing.” [Footnote: Baillie’s Letters and Journals, ii. 18.]

But Cromwell, gifted with noble instincts and transcendent political genius, a layman, a statesman, and a soldier, was a liberal from birth till death.

“Those that were sound in the faith, how proper was it for them to labor for liberty, … that men might not be trampled upon for their consciences! Had not they labored but lately under the weight of persecution? And was it fit for them to sit heavy upon others? Is it ingenuous to ask liberty and not to give it? What greater hypocrisy than for those who were oppressed by the bishops to become the greatest oppressors themselves, so soon as their yoke was removed? I could wish that they who call for liberty now also had not too much of that spirit, if the power were in their hands.” [Footnote: Speech at dissolution of first Parliment, Jan. 22, 1655. Carlyle’s Cromwell, iv. 107.]

“If a man of one form will be trampling upon the heels of another form, if an Independent, for example, will despise him under Baptism, and will revile him and reproach him and provoke him,—I will not suffer it in him. If, on the other side, those of the Anabaptist shall be censuring the godly ministers of the nation who profess under that of Independency; or if those that profess under Presbytery shall be reproaching or speaking evil of them, traducing and censuring of them, as I would not be willing to see the day when England shall be in the power of the Presbytery to impose upon the consciences of others that profess faith in Christ,—so I will not endure any reproach to them.” [Footnote: Speech made September, 1656. Carlyle’s Cromwell, iv. 234.]

The number of clergymen among the emigrants to Massachusetts was very large, and the character of the class who formed the colony was influenced by them to an extraordinary degree. Many able pastors had been deprived in England for non-conformity, and they had to choose between silence or exile. To men of their temperament silence would have been intolerable; and most must have depended upon their profession for support. America, therefore, offered a convenient refuge. The motives are less obvious which induced the leading laymen, some of whom were of fortune and consequence at home, to face the hardships of the wilderness. Persecution cannot be the explanation, for a government under which Hampden and Cromwell could live and be returned to Parliament was not intolerable; nor does it appear that any of them had been severely dealt with. The wish of the Puritan party to have a place of retreat, should the worst befall, may have had its weight with individuals, but probably the influence which swayed the larger number was the personal ascendancy of their pastors, for that ascendancy was complete. In a community so selected, men of the type of Baillie must have vastly outnumbered those of the stamp of Cromwell, and in point of fact their minds were generally cast in the ecclesiastical mould and imbued with the ecclesiastical feeling. Governor Dudley represented them well, and at his death some lines were found in his pocket in which their spirit yet glows in all the fierceness of its bigotry.

“Let men of God in Courts and Churches watch
O’re such as do a Toleration hatch,
Lest that Ill Egg bring forth a Cockatrice,
To poison all with heresie and vice.”

[Footnote: Magnalia, bk. 2, ch. v. section 1.]

In former ages churches had been comprehensive to this extent: infants had been baptized, and, when the child had become a man, he had been admitted to the communion as a matter of course, unless his life had given scandal; but to this system the Congregationalist was utterly opposed. He believed that, human nature being totally depraved, some became regenerate through grace; that the signs of grace were as palpable as any other traits of character, and could be discerned by all the world; therefore, none should be admitted to the sacrament who had not the marks of the elect; and as in a well-ordered community the godly ought to rule, it followed that none should be enfranchised but members of the church.

To suppose such a government could be maintained in England was beyond the dreams even of an enthusiast, and there can be little doubt that the controlling incentive with many of those who sailed was the hope, with the aid of their divines, of founding a religious commonwealth in the wilderness which should harmonize with their interpretation of the Scriptures.

The execution of such a project was, however, far from easy. It would have been most unsafe for the emigrants to have divulged their true designs, since these were not only unlawful, but would have been highly offensive to the king, and yet they were too feeble to exist without the protection of Great Britain, therefore it was necessary to secure for themselves the rights of English subjects, and to throw some semblance at least of the sanction of law over the organization of their new state. Accordingly, a patent [Footnote: March 4, 1629.] was obtained from the crown, by which twenty-five persons were incorporated under the name of the Governor and Company of Massachusetts Bay in New England; and as the extent of the powers therein granted has given rise to a controversy which is not yet closed, it is necessary to understand the nature of that instrument in order to comprehend the bearings of the bitter strife which darkens the history of the first fifty years of the colony.

The germ of the written charter is so ancient as to be lost in obscurity. During the Middle Ages, oppression was, speaking generally, the accepted condition of society, no man not noble having the right in theory, or the power in practice, to control his own actions without interference from his feudal superior. Under such circumstances the only hope for the weak was to combine, and most of the early triumphs of freedom were won by combinations of commons against some noble, or of nobles against a king. Organization is difficult for a peasantry, but easy for burghers, and from the outset these seem to have united for their common defense against the neighboring barons; and thus was born the mediæval guild.

The ancient townsmen were not usually strong enough to fight for their liberties, so they generally resorted to purchase; they agreed with their lord upon a price to be paid for a privilege, and were given for their money a grant, which, because it was written, was called a charter.

The following charter of the Merchants’ Guild of Leicester is very early and very simple. It presupposes that there could be no doubt about the local customs, which are therefore not enumerated, and it shows that the guild of Leicester existed as a corporation at the Conquest, and must already have held property in succession and been liable to suit through two reigns:—

“Robert, Earl of Mellent, to Ralph, and all his barons, French and English, of all his land in England, greeting: Know ye, that I have granted to my merchants of Leicester their Guild Merchant, with all customs which they held in the time of King William, of King William his son, and now hold in the time of Henry the king.

“Witness: R., the son of Alcitil.”

The object of these ancient writings was only to record the fact of corporate existence; the popular custom by which the guilds were regulated was taken for granted; but obviously they must have had succession, been liable to suit, able to contract, and, in a word, to do all those acts which were afterward set forth. And such has uniformly been the process by which English jurisprudence has been shaped; a usage grows up that courts recognize, and, by their decisions, establish as the common law; but judicial decisions are inflexible, and, as they become antiquated, they are themselves modified by legislation. Lawyers observed these customary companies for some centuries before they learned what functions were universal; but, with the lapse of time, the patents became more elaborate, until at length a voluminous grant of each particular power was held necessary to create a new corporation.

A merchants’ guild, like the one of Leicester, was an association of the townsmen for their common welfare. Every trader was then called a merchant, and as almost every burgher lived by trade, and was also a landowner, to the extent at least of his dwelling, it followed that the guild practically included all free male inhabitants; the guild hall was used as the town hall, the guild ordinances were the town ordinances, and the corporation became the government of the borough, and as such chose persons to represent it in Parliament, when summoned by the king’s writ to send burgesses to Westminster.

London is a corporation by prescription and not by virtue of any particular charter, and to this day its city hall is called by the ancient name, Guild Hall. But with the growth of wealth and population the original fraternity divided into craft organizations (so long ago, indeed, that no record of its existence remains), and each trade organized a guild, with a hall of its own; and thus it came to pass that the twelve livery companies—the Mercers, the Grocers, the Goldsmiths, the Drapers, the Fishmongers, and the rest—became the government of the capital of England.

All mediæval institutions tended to aristocracy and monopoly, and, accordingly, after the merchant guilds had split into these corporate trade unions, boroughs waxed exclusive, and membership, instead of being an incident of citizenship, grew to confer citizenship itself; thus the franchise, being confined to freemen, and freedom or membership having come to depend on birth, marriage, election, or purchase, the constituencies which returned a majority of the House of Commons grew so petty and corrupt as to threaten the existence of parliamentary government itself, and the abuse at last culminated in the agitation which produced the Reform Bill.

When legal forms had taken shape, the land upon which a town stood was not unusually granted to the mayor and commonalty by metes and bounds, [Footnote: See Charter of Plymouth, granted 1439. History of Plymouth, p. 50. The incorporation was by statute.] to them and their successors forever, upon payment of a rent; and the mayor and common council were empowered to make laws and ordinances for the local government, and to fine, imprison, and sometimes whip and otherwise punish offenders, so as their statutes, fines, pains, and penalties were reasonable and not repugnant to law. [Footnote: History of Tiverton, App. 5.] The foreign trading company was an offshoot of the guild, and was intended to protect commerce. Obviously some such organization must have been necessary, for, if property was insecure within the realm, it was far more exposed without; and, indeed, in the fourteenth century, English merchants domiciled on the Continent could hardly have been safer than Europeans are now who garrison the so-called factories upon the coast of Africa.

At the Conquest, the Hanse merchants had a house in London, which was afterward famous as the Steel Yard. They lived a strange life,—a combination of that of the trader, the soldier, and the monk. Their fortified warehouse, exposed to the attacks of the ferocious mob, was occasionally taken and sacked; and the garrison shut up within was subject to an iron discipline. They were forbidden to marry, no woman passed the gates, nor did they ever sleep a night without the walls; but, always on the watch, they lay in their cells ready to repulse a storm. For many years these Germans seem to have monopolized the carrying trade, for it was not till the thirteenth century that Englishmen appear to have made an effort at competition. However, about 1296 certain London mercers are said to have obtained a grant of privileges from John, Duke of Brabant, and to have established a wool market at Antwerp. [Footnote: Andersen’s History of Commerce.] The recognition of the Flemish government was of course necessary; but they could hardly have maintained themselves without some support at home; for, although their warehouse was abroad, they were English merchants, and they must have relied upon English protection. No very early documents remain; but an elaborate charter, granted by Edward IV. in 1463, proves that the corporation had then had a long legal existence. [Footnote: Hakluyt’s Voyages, i. 230.] The crown thereby confirmed one Obrey, the governor, in his office during pleasure, with the wages theretofore enjoyed; existing laws were approved; the governor and merchants were empowered to elect twelve Justicers, who were to hold courts for all merchants and mariners in those parts; and the company was authorized to regulate the trade and control the traders, provided no laws were passed contrary to the intent of that charter.

Here, as in the Merchant Guild, the inevitable aristocratic revolution took place, and the old democratic brotherhood became a strict monopoly. The oppression was so flagrant that a petition was presented to Parliament in 1497 against the exactions of the Merchant Adventurers, as the association was then called, by which it appeared that interlopers, trading to Holland and Flanders, were fined £40, whereas any subject might have become a freeman in earlier times for an old noble, or about 6s. 8d.; [Footnote: 12 Henry VII. ch. vi.] and the scandal was so great that the fine was fixed at 10 marks, or £6 l3s. 4d., by statute. During the stagnation of the Middle Ages few traces of such commercial enterprises are to be found, but with the sixteenth century Europe awoke to a new life and thrilled with a new energy. Trade shared in the impulse. In 1554 Philip and Mary incorporated the Russia Company in regular modern form; in 1581 the Turkey Company was organized; in 1600 the East India Company received its charter; and, to come directly to what is material, in 1629 Charles I. signed the patent of the Governor and Company of Massachusetts Bay in New England.

Stripped of its verbiage, the provisions are simple. The stockholders, or “freemen,” as they were then called, were to meet once a quarter in a “General Court.” This General Court, or stockholders’ meeting, chose the officers, of which there were twenty, the governor, deputy governor, and eighteen assistants or directors, on the last Wednesday in each Easter Term. The assistants were intrusted with the business management, and were to meet once a month or oftener; while the General Court was empowered to admit freemen, and “to make laws and ordinances for the good and welfare of the said company, and for the government and ordering of the said lands and plantation, and the people inhabiting and to inhabit the same, as to them from time to time shall be thought meet,—so as such laws and ordinances be not contrary or repugnant to the laws and statutes of this our realm of England.” The criminal jurisdiction was limited to the “imposition of lawful fines, mulcts, imprisonment, or other lawful correction, according to the course of other corporations in this our realm of England.”

The “course of corporations” referred to was well established. The Master and Wardens of the Guild of Drapers in London, for example, could make “such … pains, punishments, and penalties, by corporal punishment, or fines and amercements,” … “as shall seem … necessary,” provided their statutes were reasonable and not contrary to the laws of the kingdom. [Footnote: Herbert’s Livery Companies, i. 489.] In like manner, boroughs such as Tiverton might “impose and assess punishments by imprisonments, etc., and reasonable fines upon offenders.” [Footnote: See History of Tiverton, App. 5.]

But all lawyers knew that such grants did not convey full civil or criminal jurisdiction, which, when thought needful, was specially conferred, as was done in the case of the East India Company upon their petition in 1624, [Footnote: Bruce, Annals, i. 252.] and in that of Massachusetts by the charter of William and Mary.

Such was the undoubted theory, and evidently there must always have been some practical means of checking the abuse of power by these strong organizations. In semi-barbarous ages the sovereign took matters into his own hands by seizing the franchise, and even the Plantagenets repeatedly suspended or revoked the liberties of London,—often, no doubt, for cause, but sometimes also to make money by a resale; and a succession of these arbitrary forfeitures demonstrated that charters to be of value must be beyond the grantor’s control. Resort was had to the courts, as a matter of course, and finally it was settled that relief should be given by a writ of quo warranto, upon which the question of the violation of privileges could be tried; and curious records still remain of ancient litigations of this nature.

In 1321 complaint was made against the London Weavers for injuring the public by passing regulations tending to raise the price of cloth. [Footnote: Liber Customarum, i. 416-424.] It was alleged that the guild, with this intent, had limited the working hours in the day, the working days in the year, and the number of apprentices the freemen might employ; and the prayer was that for these abuses the charter should be annulled.

The cause was tried before a jury, who found the truth of some of the charges; but the judgment is lost, as the roll is imperfect.

There was danger, moreover, to the citizen from the oppression of these powerful bodies, as well as to the public from their usurpations; and were authority wholly wanting, argument would be almost unnecessary to prove that some appellate tribunal must always have had jurisdiction to pass upon the validity of corporate legislation; for otherwise any summary punishment might have been inflicted upon an individual, though notoriously unlawful, and the only redress possible would have been subsequent proceedings to vacate the charter.

Through appeals, corporations could be controlled; and by none was this control so stubbornly disputed, or its necessity so clearly demonstrated, as by the Governor and Company of Massachusetts Bay in New England. A good illustration is the trial of the Quaker, Wenlock Christison, for his life in 1661.

“William Leddra being thus dispatch’d, it was resolved to make an end also of Wenlock Christison. He therefore was brought from the prison to the court at Boston, where the governor John Indicot, and the deputy governor Richard Billingham, being both present, it was told him, ‘Unless you will renounce your religion, you shall surely die.’ But instead of shrinking, he said with an undaunted courage, ‘Nay, I shall not change my religion, nor seek to save my life; neither do I intend to deny my Master; but if I lose my life for Christ’s sake, and the preaching of the gospel, I shall save my life.’ … John Indicot asked him ‘what he had to say for himself, why he should not die?’ … Then Wenlock asked, ‘By what law will you put me to death?’ The answer was, ‘We have a law, and by our law you are to die.’ ‘So said the Jews of Christ,’ (reply’d Wenlock) ‘we have a law, and by our law he ought to die. Who empowered you to make that law?’ To which one of the board answered, ‘We have a patent, and are the patentees; judge whether we have not power to make laws.’ Hereupon Wenlock asked again, ‘How, have you power to make laws repugnant to the laws of England?’ ‘No,’ said the governor. ‘Then,’ (reply’d Wenlock,) ‘you are gone beyond your bounds, and have forfeited your patent; and that is more than you can answer.’ ‘Are you,’ ask’d he, ‘subjects to the king, yea or nay?’ … To which one said, ‘Yea, we are so.’ ‘Well,’ said Wenlock, ‘so am I.’ … ‘Therefore seeing that you and I are subjects to the king, I demand to be tried by the laws of my own nation.’ It was answered, ‘You shall be tried by a bench and a jury.’ For it seems they began to be afraid to go on in the former course, of trial without a jury … But Wenlock said, ‘That is not the law, but the manner of it; for I never heard nor read of any law that was in England to hang Quakers.’ To this the governor reply’d ‘that there was a law to hang Jesuits.’ To which Wenlock return’d, ‘If you put me to death, it is not because I go under the name of a Jesuit, but of a Quaker. Therefore, I appeal to the laws of my own nation.’ But instead of taking notice of this, one said ‘that he was in their hands, and had broken their law, and they would try him.’” [Footnote: Sewel, pp. 278, 279.]

Yet, though the ecclesiastical party in Massachusetts obstinately refused to admit appeals to the British judiciary up to the last moment of their power, for the obvious reason that the existence of the theocracy depended upon the enforcement of such legislation as that under which the Quakers suffered, there was no principle in the whole range of English jurisprudence more firmly established. By a statute of Henry VI. passed in 1436, corporate enactments were to be submitted to the judges for approval; and the Court of King’s Bench always set aside such as were bad, whenever the question of their validity was presented for adjudication. [Footnote: Stat. 15 H. VI. ch. 6. Stat 19 H. VII. ch. 7. Clark’s Case, 5 Coke, 633, decided A. D. 1596. See Kyd on Corporations, ii. 107-110, where authorities are collected. Child v. Hudson Bay Co., 2 P. W. 207.]

But discussion is futile; the proposition is self-evident, that an association endowed with the capacity of acting like a single man, for certain defined objects, which shall attempt other objects, or shall seek to compass its ends by unlawful means, violates the condition upon which its life has been granted, transcends the limits of its existence, and forfeits its privileges; and that under such circumstances its ordinances are void, and none are bound to yield them their obedience.

Approached thus from the standpoint of legal history, no doubt can exist concerning the scope of the franchise secured by the Puritans for the Massachusetts colony. The instrument obtained from Charles I. embodied certain of their number in an English corporation, whose only lawful business was the American trade, as the business of the East India Company was trade in Hindostan. To enable them to act effectively, a tract of land in New England, between the Merrimack and the Charles, was conveyed to them, as the soil upon which a town stood was conveyed to the mayor and commonalty. Within this territory they were authorized to established their plantations and forts, which they were empowered to defend against attack, as the Hanse merchants defended the Steel Yard in London. They were also permitted to govern the country within their grant by reasonable regulations calculated to preserve the peace, and of much the same character as the municipal ordinances of towns, subject, of course, to judicial supervision. The corporation itself was created subject to the municipal laws of England, and could have no existence without the realm; and though perhaps even then the American wilderness might have been held to belong to the British empire, it formed no part of the kingdom, [Footnote: Blackstone’s Commentaries, i. 109.] and was altogether beyond the limits of that jurisdiction from whose customs and statutes the life of this imaginary being sprang. Therefore, the governing body could legally exercise its functions only when domiciled in some English town. [Footnote: On this subject see the able paper of Mr. Deane, in Massachusetts Historical Society Proceedings, December, 1869, p. 166.]