USA > Massachusetts > Commonwealth history of Massachusetts, colony, province and state, volume 1 > Part 12
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The act of 1644, finally recognizing and ratifying the pos- session of a negative voice by the Assistants, may be regarded as a compromise putting an end to the long strife between the freemen and the magistrates in a manner eminently favorable to the latter. It confirmed the control of the colony's policy by the group of earnest and zealous leaders who had watched over it from the beginning, and who in spite of much petty squabbling among themselves, were remarkably able to co- operate on all the larger lines of their policy. This control they sought in every way to retain in their own hands.
One of the most interesting of their devices toward this end was to keep down the number of the Assistants. The charter fixed this at eighteen; but during the first generation of the colony's history, the complete membership was never filled. In
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a full board the leaders would perhaps have been in danger of being voted down by outsiders; by keeping the board small they retained their monopoly of its membership. Perhaps the same motive was at the bottom of a curious law of 1647 which restricted to seven the number of candidates for Assistant for whom the freemen might vote in casting their ballots in the towns.
POWER OF THE CLERGY (1630-1660)
This concentration of authority in the hands of the "elder statesmen" had a very important result in that they always acted in close concert with the leaders of the clergy; and the confirmation of their power and influence accordingly meant the fastening upon the colony of the influence of the clergy in a way that would hardly have been possible had political power been more decentralized. The magistrates turned con- tinually to the little group of clerical leaders, to Hooker, Cot- ton, Wilson, Shepherd, and their like, for semi-official advice and assistance, continually referring to them for ultimate de- cision matters of doubt and difficulty; and they also relied upon them to act as their spokesmen in presenting and de- fending their policies before the people.
Thus, in the words of Professor Osgood, "the ministers of New England, like the ecclesiastics of the middle age, were statesmen and political leaders. No affair of government was indifferent to them. They helped to uphold the church and commonwealth against threats of attack by the home govern- ment, the efforts of Gorges and Mason, the complaints and agitations of schismatics. They co-operated in forming the New England Confederacy. With the magistrates, they constituted for half a century the governing class of Mas- sachusetts-the oligarchy which shaped its policy and growth." And the experience of fifty years showed that the clergy were more aristocratic in policy, more severe and cruel in judgment, and more ruthless in their authority than the Assistants.
THE COLONIAL JUDICIARY (1630-1664)
The power of the magistrates, or Assistants, rested to a large extent on their control of judicial functions in the colony.
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THE COLONIAL JUDICIARY
At the first meeting of the "Court of Assistants" after they had landed in the colony, they conferred on their members the "power that justices of the peace hath in England." During the years between 1630 and 1634 general judicial power in cases of every description had been exercised indiscriminately by the few General Courts that met during that period; there is some evidence that in 1634 the freemen in asserting the powers of the General Court declared its supremacy in "mat- ters of judicature"; finally in 1636 an act was passed which organized a regular judicial system, by establishing four county courts and providing that the Assistants should meet in four annual "Quarter Courts" for judicial business. The county courts were to be held at Ipswich, Salem, Cambridge and Boston by such of the Assistants as were specially desig- nated for each county by the General Court, and by "such other persons as shall be appointed by the General Court, so as no court shall be kept without one magistrate at the least, that none of the magistrates be excluded who can and will at- tend the same." They had jurisdiction over all civil cases where the damages claimed were less than £10, and over all criminal cases "not concerning life, member or banishment;" and an appeal from their decision lay to the magistrates meet- ing in the Quarter Courts.
Apparently at a later date the county courts were given original jurisdiction over all civil actions, and the meetings of the Court of Assistants were reduced to two annually. At first there was much confusion between the appellate jurisdic- tion of the General Court and that of the Court of Assistants, which for a time were practically concurrent; this was later corrected by prescribing that appeals to the General Court should lie only from the Court of Assistants and only in cer- tain classes of cases.
It will be noted that the Assistants, or magistrates, sat as judges in every one of the courts of the colony. Sitting as a body with the Governor and deputies they constituted the Gen- eral Court. Sitting in a body they constituted the Quarter Courts. Sitting in small groups, or individually in company with commissioners, they constituted the county courts. Indi- vidually they had jurisdiction over small causes. And this judicial power carried with it a large amount of administrative
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power. Thus from 1641 to 1664 the county courts were the agency to which the General Court delegated the very im- portant function of admitting or refusing to admit new free- men,-in other words, they had control over the right of suffrage. They also had the appointment of a large number of petty officials, including a veto on the election of militia officers; and in certain cases they were entitled to levy rates and taxes. It is hardly too much to say that the entire ad- ministrative as well as judicial machinery of the colony was gathered by the Assistants into their own hands.
BODY OF LIBERTIES (1632-1641)
Under these circumstances it is not unnatural that a ques- tion should have been raised as to whether their discretion was restrained within sufficient limits. This movement early took the form of a demand for a fixed and definite code of laws. The movement began the year after the General Court had asserted its power. In the words of Winthrop, "the depu- ties having conceived great danger to our state in regard that our magistrates, for want of positive laws, in many cases might proceed according to their discretions, it was agreed that some men should be appointed to frame a body or grounds of laws in resemblance to a magna charta, which be- ing allowed by some of the ministers and the general court, should be received for fundamental laws."
The committee which was appointed, consisting of Win- throp, Dudley, and two others, do not appear, however, to have taken any notice of the task thus thrust upon them, for we find the next General Court returning to the same sub- ject. The committee was enlarged by the addition of three clerical members, Cotton, Peter, and Shepherd, and "entreated to make a draft of laws agreeable to the word of God, which may be the Fundamentals of this Commonwealth, and to present the same to the next general court, and it is ordered that in the meantime the magistrates and their associates shall proceed in the courts to hear and determine all causes accord- ing to the laws now established, and where there is no law, then as near the law of God as they can." In pursuance of this commission Cotton compiled a code "in exact method" to
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which he gave the title of "Moses his Judicialls," and which he presented to the General Court for their adoption; but it appar- ently did not satisfy their requirements and was left to be published by its author in the form of a treatise.
Once more the Court recited that "the want of written laws hath put the court into many doubts and much trouble in particular cases," and appointed a committee, this time with a slightly different membership; and in the following year the same procedure was repeated. Thus in four successive years the General Court had demanded laws and appointed committees without result. The reason for this delay is given by Winthrop. "The people," he writes, "had long desired a body of laws, and thought their condition very unsafe while so much power rested in the discretion of the magistrates. Divers attempts had been made at former courts and the mat- ter referred to some of the magistrates and some of the eld- ers ; but it still came to no effect. Two great reasons there were which caused most of the magistrates and some of the elders not to be very forward in this matter. One was want of sufficient experience in the nature and disposition of the people, considered with the condition of the country and other circumstances, which made them conceive that such laws would be fittest for us which should arise pro re nata upon occasions, etc., and so the laws of England and other states grew, and therefore the fundamental laws of England are called customs. 2. For that it would professedly transgress the limits of our charter, which provide we shall make no laws re- pugnant to the law of England, and that we were assured we must do. But to raise up laws by practice and custom had been no transgression; as to make a law that marriages shall not be solemnized by ministers is repugnant to the laws of England; but to bring it to a custom by practice for the magistrates to perform it is no law made repugnant, etc."
By 1641 the persistence of the freemen had overcome oppo- sition. A compilation prepared by the Reverend Nathaniel Ward of Ipswich after being sent about among the towns for criticism and suggestions was adopted by the General Court in the form of one hundred laws, known as the "Body of Liberties." The provisions which make up this instrument re- semble in character those of a modern state constitution rather
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than a statutory code. They are arranged in no exact order and cover such subjects as the qualification of members of the General Court, relations between church and state, the prin- ciples of town government, the requirements of just procedure in judicial proceedings, and the maximum rate of interest.
The first Liberty declares that the rights of persons and property are inviolable except by law; the second guarantees equal and speedy justice to all. The rule is laid down that no man shall be tried twice for the same offence, torture is forbidden, and there is a prohibition of cruel and barbarous punishments. No legal process or pleading was to be invali- dated by immaterial technicalities. General Courts were not to be dissolved without the consent of a majority of the mem- bers. Slavery was prohibited except in the case of "lawful captives taken in just wars, and such strangers as willingly sell themselves or are sold to us." The relief of persons ship- wrecked upon the coast was enjoined; and cruelty to dumb animals was prohibited. Taken as a whole, the code forms, as its name indicates, a sort of Bill of Rights or Declaration of Privileges, like those numerous subsequent Bills of Rights which are so prominent a feature of our American Constitu- tion.
GENERAL LAWS OF 1649
The fact that the Massachusetts freemen imagined that they were getting anything of value by an instrument of this kind, which was subject to repeal at any time, and which could after all only be violated by officials over whom they already had full elective control, illustrates the tenacity of tradition which applies old ideas to situations radically dif- ferent; and is also an early instance of a typically American confidence in the magic of committing generalities to paper.
Really the freemen desired something more than generali- ties; they desired specific rules to bind the discretion of their magistrates; and this is shown by the fact that the adoption of the Body of Liberties did not satisfy them or abate their insistence upon having a written code of laws. In 1645 and 1646 committees were once more appointed for this task "so as we may have ready recourse to [written laws] upon all oc- casions, whereby we may manifest our utter disaffection to
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The Capitall Lawes of New - England, as they ftand now in force in the Common - Wealth.
BY THE COVRT,
In the Years 1641. 1642.
bbq. F.6 99
Capitall Lawes, Eftablified within the Turifdiction of Mafachufets.
I Fany man after legall conviction, fhall have or worfhip any other God, but the Lord God, he fhall be put to death. Dent. 13. 6, &c. and 17. 2. &c. Exodus 22. 20.
2. T Fany man or woman be a Witch, that is, hath or confulteth with a familiar fpi- rit, they fhall be put to death. Exed. 22. 18. Lev. 20.27. Det. 18. 10, 11.
3. T Fany perfon fhall blafpheme the Name of God the Father, Sonne, or Holy Ghoff, with direct, expreffe, prefumptuous, or high-handed blafphemy, or fhall curfe. God in the like manner, he Shall be put to death. Lev. 24. 15, 16.
4. T Fany perfon fhall commit any wilfull murtber, which is manflaughter, commit, L ted upon premeditate malice, hatred, or cruelty, not in a mans neceffary and juft defence, nor by meer cafualtie, againft his will ; he fhall be put to death. Exed. fr. 11,13, 14. Num. 15. 30, 31.
5. ]Fany perfon flyeth another fuddenly in his anger, or cruelty of paffion, he fhall 4 be put to death. Num. 35. 20, 21. Lev. 24. 17.
6. y Fany perfon fhall flay another through guile, either by poyfonings, or other A fuch divilith practice ; he fhall be put to death. Exod. 21. 14.
7. IFa man or woman fhall lye with any beaft, or bruit creature, by carnall copula tion, they fhall furely be put to death ; and the beaft fhall be flaine, and buried. Lou. 20. 15, 16.
8. T Faman lyeth with mankinde, as he lyeth with a woman, both of them have L committed abomination, they both fhall furely be put to death., Lev. 20. 13.
9. F.any perfon committeth adultery with a married, or efpoufed wife, the Adulte- rer., and the Adultereffe, fhall furely be put to death. Lev. 20. 10. and 18. 20. Dent. 22.23, 24.
zo. IF any man fhall unlawfully have carnall copulation with any woman-childe under ten yeares old, either with, or without her confent, be thall be put to death.
Ir. ]Fany man fhall forcibly, and withour confent, ravith any maid or weman that is & lawfully married or contracted, he fhall be put to death. Dest. 23. 25.&c.
12. TE any man fhalf ravifh any maid or Engle woman ( committing carnall copy- lation with her by force, againft her will ) that is above the age of ten yeares , hefhall be either punifhed with death, or with fome other grievous puaifhment, 30- cording to circumftances, at the difcretion of the judges : and this Law to continue till the Court take further order.
13. TF any man ftealeth a man, or man-kinde, he thall furely be pur to death. A. Exod. 21. 16.
14. ] F any man rife up by falle witneffe wittingly, and of purpofe to take away any mans life, he thall be put to death. Deut. 19.16.18,19.
15. IF any man fhall confpire, or attempt any invafion, infurreCion, or publick re- bellion. againt our Common-wealth, or fhall indeavour to furprize any Townc or Townes, Fort or Forts therein . or thall treacheroully, or perfidioufly attempt the alteration and fubverfion of our frame of pollity, or government fundamentally, he fhall be put to death. Num, 16: 1 5am, 3. & :8. & 20.
Per exemplar Incre, Newel, Secret.
Printed firft in New - England, and re-printed in London for Ben. Allen in Popes - head Allen. 1 6 4 35
From a copy of the English edition in the British Museum
BROADSIDE OF THE "CAPITALL LAWES" OF 1642
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arbitrary government and so all relations be safely and sweetly directed and protected in all their just rights and privileges."
The committees worked slowly and after yearly proddings by other General Courts the fruit of their labors was the code of 1649. No copy survives of it, but we are in a position to reconstruct its outlines. It was a document of a very different character from the Body of Liberties. It was no mere collec- tion of general guarantees but a systematically arranged com- pendium of the whole statute laws of the colony. It was what the freemen had wanted from the beginning, and with additions and amendments, it remained the basis of the law of Massachusetts throughout the remainder of its colonial his- tory.
MAGISTERIAL POWER (1644)
During the long struggle for laws, the insistence of the free- men had been stiffened by several clashes with the magistrates over the extent of their discretion. The question came to the front in 1644 after the freemen had been compelled to yield in the matter of the negative voice. The specific complaint of the freemen was that during recesses of the General Court the Assistants continued to exercise their administrative and judicial powers, and, in doing so, frequently took action in matters where there was no law or order of the General Court prescribing a rule for them to follow. Accordingly the deputies proposed that the General Court should appoint a standing committee to sit during its recesses and exercise its power "to order all the affairs of the commonwealth." This proposal was naturally rejected by the magistrates on the ground that it would "put out the magistrates from that power and trust which the freemen had committed to them" under the charter by electing them to office.
This dispute was submitted to the clergy as a sort of su- preme court on constitutional questions; and their opinion delivered by Cotton, sustained the magistrates on the main point that the General Court could not confer on the pro- posed commission the powers of "constant judicature and counsel which are the principal work" of the magistrates under the patent. On the other hand, the elders limited the dis-
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cretion of the magistrates by holding that they had no power "to dispense justice in the vacancy of the General Court with- out some law or order of the same to declare the rule"; and that "no magistrate hath power to vary from the penalty of any law without consulting the General Court." This latter ruling in the main sustained the contention of the freemen that the discretion of the magistrates should be limited by law and overruled the argument which Winthrop made in favor of free judicial discretion on the ground that magistrates should be left free to adjust correction to the offence in ac- cordance with the Word of God. "Whatsoever sentence the magistrate gives," wrote Winthrop, "the judgment is the Lord's though he do it not by any rule prescribed by civil au- thority."
LOCAL GOVERNMENT (1630-1689)
The essential feature of Massachusetts government during the first generation of its history can be summed up in one word, centralization - a concentration of influence, power, offices, functions of every kind, in a small and compact group of leaders. Yet under the surface of this centralization a development was going on which was ultimately to undermine it. This was the growth of towns and town-governments. Massachusetts was settled at the outset by groups rather than individuals,-not by isolated pioneers, but by parishes and congregations which transplanted themselves from England and sought to reconstruct their communal life in the new en- vironment. As the colony expanded, the settlement of new areas was likewise effected by budding groups and communi- ties.
The leaders at first looked with dislike on this process of dispersion and sought to keep a firm hand upon it. They passed an order that no new plantations were to be set up without leave of the Governor and Assistants and they as- sumed the right to appoint local officers, constables and the like, for those which had already been established. But the process of town-formation outran the control of the magis- trates,- new communities came into existence as squatter settlements, and named officers and levied rates without au- thority from the government of the Company. The leaders
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soon bowed to the inevitable; they recognized the existence of the towns in 1632 when they invited two deputies from each "plantation" to confer with them about "taxation"; and by the Township Act of 1636 they laid the basis of a system of town government and local autonomy. Each town was given the right to manage its own affairs, to make ordinances and enforce them by penalties, and to choose its own local offi- cers ; and an even more important function was conferred on the towns in connection with the distribution of land.
By the charter, original title to all the land covered in the Massachusetts grant was vested in the Massachusetts Bay Company ; but by the Township Act the General Court dele- gated to the towns the right of distributing the land within their boundaries. For this reason as town after town was set off, the greater part of the land in the colony came ultimately into their possession for subsequent distribution to individuals. The grants by the General Court were made in large tracts, six miles square or more, from which the town community then proceeded to make allotments to its existing members, reserving the surplus as "common land" for later distribution or for new inhabitants. Each town thus became a close eco- nomic community with a direct interest in admitting or ex- cluding new members.
The feeling of local solidarity which resulted is illustrated by an order made by Watertown in 1638 to the effect that no townsman should sell or alienate his lot on the so-called "towne-plot," or central village,-"it being," the order con- tinues, "our real intent to sit down there close together." This solidarity made itself felt on the one hand in the care which the town bestowed on helping its own indigent members, even to the point of supplying a "common shroud"; and on the other hand in excluding for any or no reason strangers and candidates for admission to the community.
TOWN SUFFRAGE (1630-1647)
At first an effort was made to keep the control of the towns exclusively in the hands of the class who were alone entitled to govern the colony,-i.e. the church members. By an act of 1636 "it was ordered that none but freemen shall have any
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vote in any town in any action of authority as re- ceiving inhabitants and laying out of lots." This law remained in force for more than ten years. The towns were still com- paratively small and with the exception of those in Essex County were clustered in the neighborhood of Boston. The town leaders, lay and clerical, were the very men who consti- tuted the ruling oligarchy of the colony. It is significant that the earliest stubborn resistance to their rule originated in the Essex county towns which were farthest removed geographic- ally from the seat of government.
It was inevitable that as the area covered by the colony in- creased, it would become more and more difficult for the elder statesmen to retain control of local government. Meanwhile in the towns the class of non-freemen were becoming more and more important; and in 1647 they received an enlarge- ment of their political rights in town affairs. By an act of that year they were permitted to serve as jurymen and to vote for selectmen, as well as to vote in the town-meeting on ques- tions of roads, schools, and the distribution of lands; and they were even allowed to hold the office of selectman pro- vided that a majority of the board were freemen. The town- meeting thus became a democratic assembly, where member- ship was not restricted to a class or creed, as yet the only organ of democracy in the colony, but the seed of much that was to be most characteristic of its later history.
RULE BY CHURCH MEMBERS (1630-1648)
In 1647, however, democracy was a thing still far in the future. It is interesting to note that Winthrop's narrative connects the concessions then accorded to non-freemen in town affairs with the historic protest of the "Remonstrants" against the limitation of political rights in the colony to church mem- bers. This protest took the form of a petition to the General Court signed by Samuel Maverick, one of the earliest settlers and wealthiest men in the colony ; by David Yale, a close rela- tive of some of the leaders of Connecticut; by Dr. Robert Child, a physician and scientist (who was, however, a new- comer ) ; and by other men of prominence. It demanded that the circle of church membership should be enlarged, and that
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"civil liberty and freedom be forthwith granted to all truly English." In the words of Professor Osgood, "the petition was a protest of the unenfranchised against the policy which without express warrant in the charter or in English law, ex- cluded them from equal privileges in church and common- wealth." Winthrop and his associates undertook to answer the petition by pointing out the verbal similarities between the Body of Liberties and Magna Charta; but they evaded the question of the limitation of political rights to church mem- bers. All that Child and his fellow-signers achieved by their effort was a fine and a term of imprisonment. In the follow- ing year the clergy put forward the Cambridge platform, which narrowed the standard of orthodoxy, called on the civil government to use its coercive power against heresy, schism, and "pernicious opinion" and ushered in the darkest period of religious bigotry and persecution in the history of the colony.
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