173.] And there can
be no question that his opinion was sound.
Nothing can be imagined more ill-suited to serve as the organic law of a
new commonwealth than this instrument. No provision was made for superior
or probate courts, for a representative assembly, for the incorporation of
counties and towns, for police or taxation. In short, hardly a step could
be taken toward founding a territorial government based upon popular
suffrage without working a forfeiture of the charter by abuse of the
franchise. The colonists, it is true, afterward advanced very different
theories of construction; but that they were well aware of their legal
position is demonstrated by the fact that after some hesitation from
apprehension of consequences, they ventured on the singularly bold and
lawless measure of secretly removing their charter to America and
establishing their corporation in a land which they thought would be
beyond the process of Westminster Hall. [Footnote: 1629, Aug. 29.] The
details of the settlement are related in many books, and require only the
briefest mention here. In 1628 an association of gentlemen bought the
tract of country lying between the Merrimack and Charles from the Council
of Plymouth, and sent Endicott to take charge of their purchase. A royal
patent was, however, thought necessary for the protection of a large
colony, and one having been obtained, the Company of Massachusetts Bay was
at once organized in England, Endicott was appointed governor in America,
and six vessels sailed during the spring of 1629, taking out several
hundred persons and a "plentiful provision of godly ministers.
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