USA > Massachusetts > The history of Massachusetts, the colonial period. 1492-1692 v. I > Part 23
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With the Puritans, however, religion was the basis of civil as well as of ecclesiastical government. "The Lord is our Judge, the Lord is our Lawgiver, the Lord is our King," was practically their motto;1 and, planting them- selves upon the position that, " when a commonwealth hath liberty to mould his own frame, the Scripture hath given full direction for the ordering of the same, and that in such sort as may best maintain the euexia of the church," they " fashioned the hangings to the house, and not the house to the hangings," and held that it was " better the common-
1 1 M. H. Coll., 5. 187; Hutch. Coll., 179.
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268
A PURITAN COMMUNITY ESTABLISHED.
CHAP. wealth be fashioned to the setting forth of God's house, X. which is his church, than to accommodate the church frame to the civil estate. 1
True, the faith of our fathers in the five points of Calvin- ism, was much firmer than their faith in the five points of a " strong government: " - an hereditary monarchy, an order of nobility, an established church, a standing army, and a military police; - yet there was an intimate inter- texture of Church and State in their government ; though the church, with them, was not, as in England, subordinate to the government, the dependent creature of the secular power; the government, on the contrary, was rather sub- ordinate to the church, and was moulded to secure the being and the welfare of the church. 2 Hence, in our investigations into the civil policy of the colony, we shall find the principles of the Puritans lying at the basis of all their legislation ; and many things, which have been often regarded as inexplicable, or for which they have been severely and bitterly reproached, were chiefly the result of the circumstances in which they were placed, and the opinions which they had adopted.
By the terms of their charter, the lands they held were deemed exclusively their own ; and they claimed the right to receive or exclude strangers at their own discretion. " If we here be a corporation," said they, " established by free consent; if the place of our cohabitation be our own ; then no man hath right to come in to us without our con- sent." Hence, intending to build up an exclusively Puri- Sept. 7, tan community, one of their earliest acts was, to provide 1630. that no person should plant at any place within the limits of the patent, without leave from the Governor and Assist-
1 Cotton's Way, 27, and Letter, in Sermon, 1673 ; Bacon's Hist. Disc., Hutchinson, 1. 437; Johnson, in 2 M. H. Coll., 4. 27 ; Oakes's Election
18, 25. 2 Higginson's Election Sermon, 1663, p. 19.
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269
LIMITATION OF THE ELECTIVE FRANCHISE.
ants, or the major part of them. 1 And by a still more CHAP. stringent regulation, at a later date an order was passed X. prohibiting the harboring of persons whose religious views were considered " dangerous," or the letting to such a lot or house, without the permission of one of the standing Council, or two of the Assistants.2 This statute was zcal- ously opposed by Sir Henry Vane; but Governor Winthrop, in his reply, says : "The intent of the law is to preserve the welfare of the body ; and for this end to have none received into any fellowship with us who are likely to disturb the same, and this intent, I am sure, is lawful and good."3 Thus was thrown up the first bastion of defense.
The second soon followed. As no terms of admission to the Company were prescribed by the charter, the colonists held in their own hands the key to their asylum ; and it was accordingly ordered, " to the end the body of the com- May 15, mons may be preserved of honest and good men, that, for 1631. the time to come, no man shall be admitted to the freedom of this body politic, but such as are members of some of the churches of the same." This was indeed a singular law, copied by the New Haven Colony, and virtually for a time by that at Rhode Island ; 4 and it continued substan- tially in force until 1692, being repealed in appearance only after the restoration of Charles II.5 It was con- demned by Roger Williams, in his controversy with the magistrates ; 6 and Episcopalians complained that, under its operations, liberty was jeopardized, and justice defeated.7
1 Mass. Rec's., 1. 76; Jolinson, W. W. Prov., in 2 M. H. Coll., 7, ch. 22; Winthrop, in Hutch. Coll., 68 ; Chalmers, Ann., 678. Several of the Towns adopted similar regu- lations. See Frothingham's Chas'n., Felt's Salem, &c., &c.
2 Mass. Rec's., 1. 196, 228; Win- throp, 1. 267.
3 Hutch. Coll., 67-100, 216.
4 2 M. H. Coll., 7. 77.
5 Hutchinson, 1. 31.
6 Bloudy Tenet, 287.
7 Lechford, in 3 M. H. Coll., 3. 81; Winthrop, 2. 348, 357; Hutch, Coll., 191-2.
23*
May 17, 1637.
270
CHURCH MEMBERS ALONE ENTITLED TO VOTE.
CHAP. And if it is regarded solely as a measure for the promotion X. of piety, there can be no doubt that it must be pronounced
1631. an unfortunate mistake; for picty cannot be promoted by making it the basis of civil or political distinctions. But we apprehend the true reason of this law has been generally overlooked. It was more a political regulation than a sectarian scruple. Not to bestow honors or privileges on piety was it passed, but to guard liberty,-to prevent encroachments upon their infant commonwealth. 1 The Puritans of Massachusetts recognized no rights founded upon Asiatic or European notions of indelible hereditary excellence ; no distinctions based exclusively upon talent or wealth ; yet necessarily, for a time, they were compelled to adopt the policy which excluded them from the Anglican Church, and erected a commonwealth of chosen people in covenant with God, in which the humblest freeholder, if sound in faith, possessed a power as great, in the election of magistrates and the enactment of laws, as a peer of the realm, or the proudest lord spiritual in the land of their birth.
It may possibly be true that there were evils connected with this policy. It vested undue power in the clergy and the church. It established a practical oligarchy of select religious votaries. It debarred from the exercise of the elective franchise all, however honest, who were unwilling to conform to the standard of colonial orthodoxy. But at the same time, we doubt whether, in an age of so general exclusiveness, when all large bodies of Christians were more or less intolerant, and each was struggling for the ascendancy, and for temporal dominion, and only isolated, individual minds, were acting on a broader plane; we doubt whether a different policy could have been safely adopted, without subjecting the colonists to what they
* Cotton, in Hutchinson, 1. 437; Davenport, in Bacon's Disc., 33.
271
OATH OF ALLEGIANCE.
would have regarded as the greatest of all evils, - the CHAP. intrusion of a body of men inimical to their views, whose x. aim would have been to subvert their church and destroy their government.
One other law remained to be enacted to complete their circumvallation. " Upon intelligence of some Episcopal and malignant practices against the country," an oath was framed, to be administered to every male resident Apr. 1 twenty years old and upwards, not a freeman, acknowl- 1634. edging subjection to the colonial government, and promising obedience and conformity to the same. The design of this law is obvious. It was to secure the allegiance of all not entitled to the immunities of citizenship.1
Three laws like the foregoing, would probably be now regarded as eminently restrictive, exclusive and oppressive. But it must not be inferred from this that they were never of any service. On the contrary, to our minds, the course of the Puritans was at least as wise as that of the English Church. It was not a retaliatory, but a defensive policy which was adopted here ; and the laws being necessarily temporary, as the colony grew in strength and wisdom, and as its own circumstances, and the circumstances of the English Church changed, they were abrogated in course.2
The frame of the government of the colony was fixed by the charter. By its terms, the principal officers were to be chosen directly by the freemen ; but, as no rule was given how they should be elected, it was ruled that the Oct. 19, freemen should choose the Assistants, and the Assistants 1630. from among themselves the Governor and Deputy.3 This change, however, which established an elective aristocracy, with no limitation of the tenure of office, was too anti-
1 Mass. Rec's., 1. 115, 117, 137 ; Winthrop, 1. 152; Cotton's Tenet Washed, 4, 28-9; Felt's Ipswich, 20, &c.
2 3 M. H. Coll., 3. 399; N. Am. Rev., 44. 521-2.
3 Mass. Rec's., 1. 79.
272
GOVERNMENT OF THE COLONY.
CHAP. republican for the mass of the people; and, fearing they X. had yielded too much, the next spring an order was passed May 18, . 1631. that once a year, at least, it should be lawful for the " com- mons" to propound any persons they desired to have chosen Assistants, and that the like course should be pur- sued when they saw cause to remove one or more of that May 9, body ; and at the next court, to limit the tenure of office, 1632.
it was agreed that the Governor, the Deputy, and the Assistants, should all be chosen anew every year by the Apr. 7, whole court. A few years later, it was provided that a 1636. portion of the magistrates should be chosen for life ; but this arrangement awakened jealousy, and was soon aban- doned.1
The substitution of delegates to represent the freemen, was an early and an important change, completing and con- solidating the power of the commonwealth. A tax had Feb .. 1631-2. been assessed on Watertown, and a warrant being issued for its collection, the pastor and elder of the church declared, that "it was not safe to pay money after that sort, for fear of bringing themselves and their posterity into bondage." Being called to an account for this " of- fense," they urged that the government was "no other but as of mayor and aldermen, who have not power to make laws or raise taxations without the people." To this the magistrates replied, that the government was " rather in the nature of a parliament, and that, as the freemen chose the Assistants, they were their representatives, and were autho- rized to act on their behalf." But the people were not satisfied with this decision, and " every town chose two May 8, men to be at the next court to advise with the governor 1632. and assistants about the raising of a public stock, so as what they should agree upon should bind all."2
1 Mass. Rec's., 1. 87, 95, 264; 2 Winthrop, 1. 84, 91 ; Mass. Winthrop, 1. 219-20, 363-4; Hutch- Rec's., 1. 95; Hubbard, 156-7. inson, 1. 433-6; Hubbard, 244.
273
A HOUSE OF REPRESENTATIVES ESTABLISHED.
Two years later, two persons from each town were deput- CHAP. ed, to meet and consider of such matters as they were to x. take order in at the next General Court ; and having met, they " desired a sight of the patent," and "conceiving thereby that all laws should be made at the general court," they " repaired to the governor to advise with him about it," who "told them that, when the patent was granted, the number of freemen was so small as they might all join in making laws, but now they were so many they must choose others for that purpose ;" yet, as a " select committee would be necessary to intend that work," they were advised at the next court to "order that once a year, a certain number should be appointed to revise all laws, &c., and that no assessment should be laid upon the country, nor any lands disposed of, without their consent."
The freemen, however, were little disposed to accept that as a favor, which they claimed as a right ; and at the meet- ing of the Court, twenty-four delegates appeared and took May 14, their seats. Thus a House of Representatives, the second 1034. in America, - that of Virginia being the first, - was intro- duced and established. Quietly and without tumult was this measure effected ; and though not expressly provided for in the charter, it was held not to be contrary to its letter or its spirit.1 Five years later, the magistrates Mar. 13, attempted to reduce the number of Deputies from each town 1038-9. to two ; but this step was displeasing to the people, and the original number of three was restored.2
The relative power of the Assistants and the Deputies was for some time undetermined, and a discussion upon the point was caused by the request of the people of New- town for liberty to remove to Connecticut. Fifteen of the
1 Mass. Rec's., 1. 117-18 ; Win- Mass. Rec's., 1. 254. In the house throp, 1. 152-4; Hubbard, 155-7; 3 M. H Coll., 8. 202-3.
' Legislative Papers, vol. 1. fols.
8, 11, 26; Winthrop, 1. 361-3;
of deputies, the towns took their places of precedence according to their antiquity. Mass. Rec's., 3. 2.
Sep. 4, 163.1.
+
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274
CONFLICT OF POLITICAL OPINION.
CHAP. Deputies, with the Governor, and two of the Assistants, were X. in favor of granting this request ; and ten Deputies, and the rest of the Assistants were opposed ; " whereupon no record was entered, because there were not six Assistants in the vote as the patent required." The Deputies, alarmed at this decision, stood upon their rights; the Assistants were equally tenacious of theirs. For many years the contro- versy continued ; the authority of the assistants being main- tained, " not by prodigies, or other arts, used by the people of Rome," but sometimes by a wise delay, and sometimes by a "judicious sermon ;" until finally, a compromise divi- ded the court into two branches, and gave to each a nega- tive upon the other.1
This conflict of political opinion is worthy of notice. It is a remarkable feature in the history of our State, that, from the outset of its career, the two necessary elements of a popular government have ever been prominent ; and, from the freedom with which they have been exercised, are we doubtless to attribute the perfection and stability of our present institutions. Conservatism alone tends to arro- gance and despotism. Radicalism alone tends to anarchy and ruin. The happy admixture of the two, is the foun- dation of that system of checks and balances, which, while it prevents the perpetuation of obsolete laws, guards against the enactment of those which are cruder, and which expe- rience may prove to be injurious or utopian.
Previous to 1635, the colony had no body of laws regu- larly framed. But the increase of the population leading to apprehension of danger from the want of positive May 6, statutes, four of the magistrates were deputed, to make a 1635. draught in "resemblance to a Magna Charta," which, being allowed by the ministers and the general court, were
1 Legislative Papers, vol. 1. fol. 7, 134-5; Minot, 1. 27; Bancroft, 3; Winthrop, 1. 168-9 ; Mass. 1. 365.
Rec's., 2. 58-9; Hutchinson, 1. 46-
275
BODY OF LIBERTIES.
to be received for fundamental laws. It was six years, CHAP. however, before this code was completed, when a body of.
in
Dec., 1041.
Y. one hundred laws, principally compiled by the Rev. Na- thaniel Ward, of Ipswich, was established, which was called " The Body of Liberties." These laws were revised at different periods, and were collected and published in 1648, 1660, 1672, and at other times.1
Much ridicule has been cast upon the colonists for the adoption of these laws, and it has been asserted that they are a " literal transcript of the laws of Moses." But even if this is admitted, such predilection for the Mosaic polity was not confined to Massachusetts, nor was it peculiar to the Puritans. The Presbyterians of Scotland, asserted the obligation of the judicial laws of the Pentateuch, at least in criminal cases, and deduced therefrom the duty of execu- ting idolators, adulterers, witches, and Sabbath breakers. Nay, even before their days, passages as strong as any in Puritan writings might be quoted from the writings of the early reformers.2 Hence, if it is admitted that the legisla- tion of the colony was based upon the Mosaic polity, the Puritans were not alone in favoring that polity. Nor is it surprising that the settlers of Massachusetts should have been attracted by the legislation of the Hebrew Common- wealth. The statutes of Moses were given to a nation emigrating from the bondage of Egypt to the Canaan of promise. They were designed for a free people, subject only to God. And their purpose was to preserve, in purity and simplicity, the worship of the Most High. Our fathers, therefore, might naturally be drawn to these laws, by their reverence for God, and the coincidence between their situa- tion and that of the Jews.
It is not, however, true, that the Mosaic polity was the
1 Winthrop, and the Mass. Rec's. bard, 246; and the Charter and Laws Also Hutch. Coll .; Force, vol. 3, published by order of the State. Tract 9; 3 M. II. Coll., 8 .; Hub- 2 HJallam, Const. Hist., 126.
276
CHARACTER OF THE COLONIAL LAWS.
CHAP. only law of New England; nor is it true that Massachusetts X. rejected the wisdom of English legislation. On the con- trary, its Body of Liberties, taken as a whole, may fear- lessly challenge comparison with the cotemporary legislation of England or any other land. Such a comparison was long ago instituted ;2 and, from its perusal, no one can doubt that our fathers were familiar with Magna Charta, and that the " Fundamentals " of Massachusetts were not regarded as conflicting with the same. And well might they say, in 1646, in repelling the charge of arbitrary gov- ernment, illimited oaths, unjust taxes, illegal commitments, and others of a like nature : "Let them produce any col- ony or Commonwealth in the world, where more hath been done in sixteen years. Let them show where hath been more care and strife to prevent all arbitrariness, and to bring all judgments to a certain rule, so far as may be." Indeed, they had no reason to be ashamed of their laws ; nor had they any reason to fear a comparison with the laws even of England. Let a few instances suffice to illustrate this statement.
In the " judicials " of Mr. Cotton, nineteen offenses are capital ; in the " Body of Liberties," twelve ; while in Eng- land, at the same time, one hundred and fifty offenses were punishable with death. Ample protection was thrown around the life, honor, liberty and property of every citizen. Extra judicial oaths were abolished. Impressment for wars without the colonies was prohibited. No monopolies, save patents on new inventions, were to be granted. All lands and heritages, were to be free from fines, and licenses upon alienations, and from heriots, wardships, liveries, pri- mer-scizins, year day, waste, escheat, forfeitures, and the whole train of feudal exactions customary upon the death of parents or ancestors : - yet the disposition of property,
1 Hutch. Coll., 200-08.
277
ABSTRACT OF THE BODY OF LIBERTIES.
by will or otherwise, was carefully secured, and guarded CHAP. against impositions and frauds. Hereditary claims being x. rejected, the laws of primogeniture and entail were so far 1641. modified, that the eldest son was only entitled to a double portion of the paternal estate, and the other sons, if the father died intestate, drew equal portions, after setting off the portion of the eldest. The rights of the widow were respected, and relief was afforded in case of neglect; and daughters inherited as copartners in default of male issue. The shield of the law was thrown around orphans ; and the liberties of servants and foreigners were carefully defined. People of other Christian nations, professing the true Christian religion, and flecing to the colony from the ty- ranny and oppression of their persecutors, or from famine or war, were to be entertained and succored, "according to that power and prudence God shall give us." Spoliation of the property of shipwrecked mariners was prohibited, and a refuge was provided for the sufferers. Bond-slavery, villanage, and captive vassalage, were permitted only in the case of "lawful captives taken in just war, and such strangers as willingly sell themselves, or are sold to us." Yet even such were "to have all the liberties and christian usages which the law of God established in Israel required." The detestable practice of wife whipping was prohibited ; though " chastisement " might be administered by the au- thority of the court, where just cause for correction existed. Torture, too, the peine forte et dure of the English law, was prohibited, except in capital cases, after conviction, for the discovery of confederates ; and even then, it was "not to be barbarous or inhuman." But, though the statutes say : " for bodily punishments, we allow amongst us none that are inhuman, cruel, or barbarous," cropping the cars, slitting the nose, branding the cheek, and whipping at the cart's tail were permitted, though such inflictions, if cotem- porary history is to be credited, were less frequent here 24
4
278
MORALITY OF THE PEOPLE.
CHAP. than in England. In ordinary cases, the severest punish- X. ment to which criminals were subjected, was "to be whipped
1641. with forty stripes ;" but it is gravely added, that "no true gentleman, nor any man equal to a gentleman, was to be punished with whipping, unless his crime was very shameful, and his course of life vicious and profligatc."
Such is a faithful abstract of the "Body of Liberties ; " and, though temporary laws were subsequently enacted conflicting with the above, they were only designed to meet specific exigencies. In no country, we may truly say, was the moral condition of the people higher than in New England. Even Lechford, an Episcopalian, and no friend to the civil or ecclesiastical government of the colony, frankly says : "Profane swearing, drunkenness, and beg- gars are but rare in the compass of this patent."1 The Inspectors, in their Official report to Charles II., in 1673, say : "The worst cottages of New England are lofted ; there are no beggars, and not three persons are put to death annually for theft."2 "The air of New England," says Vincent, in closing his account of the Pequot War, " and the diet, equal if not excelling that of Old England : besides, their honor of marriage, and careful preventing and punishing of furtive congression, giveth them and us no small hope of their future puissance and multitude of subjects. Hercin, saith the wise man, consisteth the strength of a king, and likewise of a nation or kingdom."3 #
It would hardly be fair to contrast with this picture the cotemporary condition of down trodden Ireland, which James I. considered as his "master piece." But, at the risk of being considered a little invidious, we may furnish one extract from the Journal of the faithful Evelyn, rela- ting to England itself. " Aug. 2, 1664. Went to Upping- ham, the shire town of Rutland ; pretty and well built of
3 3 M. H. Coll., 6. 42.
1 In 3 M. II. Coll., 3. 86.
9 1 M. H. Coll., 4, 117; Chal-
mers, Ann. ; Walsh's Appeal, 74.
279
DIFFICULTIES WITH ENGLAND.
stone, which is a rarity in that part of England, where CHAP. most of the rural villages are built of mud, and the people~ living as wretchedly as the most impoverished parts of France, which they much resemble, being idle and sluttish. The country, (especially Leicestershire,) much in common; the gentry free drinkers."1
While the colonists were thus perfecting the civil policy of their infant commonwealth, their singular and unprece- dented career was regarded with amazement by some, and with envy by others. At first, Charles inclined to treat them with benevolent platitude ; and their friends, appre- hensive of extraordinary disturbances from their proceed- ings, looked on with anxiety as the horoscope of their own destiny was being cast at home. But the dragon's teeth were sown, and a harvest of enemies was the speedy result. The stern discipline of Endicott, in expelling the Brownes, awakened, not unnaturally, suspicions that the new commu- nity was not to be the sanctioned home of Episcopacy. Morton of Merry Mount was the avowed enemy of the plantation. The deserters of 1630, accused the settlers of 1630. being " Brownists in religion, and ill affected to the Eng- lish government." Linne, who was whipped in 1631, 1631. added to the list of accusers and defamers.2 And a " thou- sand eyes were watching over them to pick a hole in their coats."3
To their former enemies, two more were soon added : - Philip Ratcliffe, a servant of Mr. Cradock, who was con- victed of uttering "malicious and scandalous speeches against the government, and the church of Salem," was fined £40, and sentenced to be "whipped, lose his ears, and be banished the plantation ;"4 and Sir Christopher
1 Evelyn, Mem., vol 1, in Walsh's Appeal, 74. 2 Winthrop, 1. 73.
4 Mass. Rec's., 1. 88; Winthrop, 1. 67-8 ; Hubbard, 137, 141, 149; R. Clap, in Chron. Mass., 362; T. 3 Lett. of E. Howes, in 3 M. H. Morton, N. Eng. Can., 112-13. Coll., 9. 244.
280
COMPLAINTS OF GORGES AND MASON.
CHAP. Gardiner, a " Knight of the Sepulchre," accused as a papist X. in disguise, and a bigamist and adulterer, who was seized for his offenses, and expelled from the colony.1 From the fact that letters shortly after reached Boston, from Sir Fer- dinando Gorges, addressed to Gardiner and Morton, both are supposed to have been in his employ ; and, however friendly that nobleman may have formerly been to Massa- chusetts, a change seems to have come over the spirit of his dream, and he, with Capt. John Mason, both prominent members of the Council for New England, who had ex- pended many thousand pounds in fruitless attempts at colo- nization, were now jealous of the Colony, and envious of its success; and, with Morton and Ratcliffe to assist in their plans, the vindictive complaints of former accusers were loudly echoed, and a petition was preferred to the 1632. Lords of the Privy Council, urging the " distractions and disorders in the colony," and demanding that its charter should be recalled and annulled. 2
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