USA > Massachusetts > Suffolk County > Boston > The memorial history of Boston : including Suffolk County, Massachusetts, 1630-1880. Vol. I > Part 19
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1 [Cf. N. E. Hist. and Geneal. Reg., April, 1848; C. W. Upham, Life of Vane : J. B. Moore, Governors of New Plymouth and Mass. Bay, p. 313. Snow, Hist. of Boston, p. 75, speaks of the house where he lived, as fifty years ago and more still standing on the slope back of the stores on Tremont Street, opposite to " King's Chapel Burying Ground," extending up towards Somerset Street. Snow spoke of it as "the oldest house in the city," and adds : "It was originally small. Mr. Vane gave it to Mr. Cotton, who made an addition to it, and lived and died there. His family occupied it some
time after. The building is of wood; the front part has a modern appearance, but the back exhibits marks of antiquity." It has lately, however, been denied that this was Vane's house, by W. II. Whitmore, who (Sewall Pa- fers, j. 58-62) traces the estate down through Seaborn Cotton and John Hull to Samuel Sewall. The lot touched Tremont Street just south of the entrance to Pemberton Square, and extended south and also back over the hill .- ED.]
2 [Dr. Ellis, in his chapter on " The Puritan Commonwealth." - ED.]
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the best cause, and who best defended it." Vane's reply has often been mentioned as containing a clear and comprehensive exposition of the true principles of civil and religious liberty, and as entitling him to be ranked among the very earliest assertors of toleration and the rights of conscience. His paper, however, as Dr. Palfrey points out in his excellent History of New England, contains repeated suggestions of a power in the King to overrule all colonial proceedings, and exhibits him elearly as a friend to the Royal Prerogative. But, without detracting in the slightest degree from the lofty and enviable claims which have been made for him, it may well be more than doubted whether his views were applicable to the condition of the colony at the time, and whether the little Commonwealth could have been held together in peace and prosperity - if held together at all -by any other policy than that which Winthrop defended.
It was admirably said by the late Josiah Quiney on this subject, in his Centennial Discourse in 1830, that " had our early ancestors adopted the course we at this day are apt to deem so easy and obvious, and placed their government on the basis of liberty for all sorts of consciences, it would have been, in that age, a certain introduction of anarchy. It cannot be questioned that all the fond hopes they had cherished from emigration would have been lost. The agents of Charles and James would have planted here the standard of the transatlantic monarchy and hierarchy. Divided and broken, without practical energy, subject to court influences and court favorites, New England would at this day have been a colony of the parent State, her character yet to be formed, and her independence yet to be vindicated."
"The non-toleration," proceeded Mr. Quincy, " which characterized our early ancestors, from whatever source it may have originated, had undoubt- edly the effect they intended and wished. It excluded from influence in their infant settlement all the friends and adherents of the ancient monarchy and hierarchy; all who, from any motive, ecclesiastical or civil, were dis- posed to disturb their peace or their churches. They considered it a measure of 'self-defence.' And it is unquestionable that it was chiefly instrumental in forming the homogeneous and exclusively republican character for which the people of New England have in all times been distinguished ; and, above all, that it fixed irrevocably in the country that noble security for religious liberty, - the independent system of church government."
Vane returned to England in August of the same year, and Governor Winthrop gave orders for his " honorable dismission " with " divers vollies of shot." There was so much that was noble in Vane's character, and so much that was sad in his fate, that it is pleasant to remember that Winthrop afterwards makes record that "he showed himself in later years a true friend to New England, and a man of a noble and generous mind." A friendly correspondence was kept up between him and Winthrop as late as 1645, and their relations were cordial and affectionate.
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Hugh Peters had made bold to tell Vane to his face " that, before he came, within less than two years since, the churches were in peace." But his departure by no means put an end to contentions. On the contrary, they seemed to wax warmer and fiercer than before. The General Court at last resorted to extreme measures, - banishment, disfranchisement, and, finally, disarming. On the 20th of November, 1637, nearly sixty persons in Boston, and about twenty in the neighboring towns, were disarmed, - many of them persons of the best consideration in the colony, and some of whom were afterwards highly distinguished in the military service of New England. But all this belongs to the history of the controversies of the colony, to form the subject of a separate chapter of this history by a different hand.1
Another political year opens in May, 1638, with the re-election of Win- throp as Governor. During this year the colony was called on to con- front a peremptory demand from the Lords Commissioners in England for the surrender of the Massachusetts Charter, coupled with the threat of sending over a new General Governor from England. But, happily, diplo- matic delays were interposed ; a humble petition was sent back, and the di- rect issue was " avoided and protracted," by the express advice of Governor Winthrop, until the King and his ministers became too much engrossed with their own condition at home to think more about their colonies. The Charter was saved for another half century, to the great relief and delight of those who had brought it over.2
Again, in 1639, the May election resulted in the renewal of Winthrop's commission as Governor. But pecuniary embarrassments, resulting from the fraud of his bailiff, now made him anxious to withdraw from public respon- sibilities, and on the 13th of May, 1640, he gave up the chief magistracy again to Thomas Dudley, and resumed a place at the Board of Assistants. In 1641 Dudley was succeeded by Richard Bellingham, and this year was rendered memorable by the adoption of a code of laws, a hundred in number, and known as " the Body of Liberties."3 It had been prepared by Nathaniel Ward, pastor of the Ipswich Church, who had formerly been a student and practiser of the law in England, and whose Simple Cobler of Agawam has rendered his name familiar. This code had been revised and altered by the General Court, and sent into all the towns for consideration. And now it was revised and amended again by the General Court, and then adopted. For all the previous years of the colony's existence there had been no statutes for the administration of justice, and no express recognition of the Common Law of England. In establishing this code at last, the General Court decreed " that it should be audibly read and deliberately weighed in every General Court that shall be held within three years next ensuing; and such of them as shall not be altered or repealed, they shall
1 [Dr. Ellis, as before. - ED.] 3 [See the note on this subject in Dr. Ellis's 2 [The story of the struggle is told later in chapter, as before. - ED. ]
Mr. Deane's chapter. - ED.]
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stand so ratified that no man shall infringe them without due punishment." The code opened as follows: "No man's life shall be taken away; no man's honor or good name shall be stained; no man's person shall be arrested, restrained, banished, dismembered, nor anyways punished; no man shall be deprived of his wife or children; no man's goods or estate shall be taken away nor anyway endangered under color of law or coun- tenance of authority, - unless it be by virtue or equity of some express law of the country warranting the same, established by the General Court and sufficiently published, or, in case of the defect of the law in any particular case, by the word of God; and in capital cases, or in cases concerning dismembering or banishment, according to that Word to be judged by the General Court."
Governor Winthrop tells us, in 1639, that " the people had long desired a body of laws, and thought their condition very unsafe while so much power rested in the discretion of the magistrates." Now, at length, the wishes of the people had prevailed, and a system of written law was adopted for Mas- sachusetts. But it was written only, - not yet published, or certainly not yet printed ; for it was not until November, 1646, that we find the record that the Court, " being deeply sensible of the earnest expectation of the country in general for their Court's completing a body of laws for the better and more orderly wielding all the affairs of this Commonwealth," appointed a joint commission of magistrates and deputies " to peruse and examine, com- pare, transcribe, and compose in good order all the liberties, laws, and orders extant with us . . . so as we may have ready recourse to any of them, upon all occasions, whereby we may manifest our utter disaffection to arbitrary government, and so all relations be safely and sweetly directed and protected in all their just rights and privileges; desiring thereby to make way for printing our Laws for more public and profitable use of us and our succes- sors." Two years more, however, were to elapse before the laws were " at the press," and still a third year before the colony records inform us that the Court had found, " by experience, the great benefit that doth redound to the country by putting of the law in print." The first printed edition of the laws was in 1649, while " The Body of Liberties," of which the preamble has just been given, as adopted in 1641, did not find its way into type until two full centuries afterwards.
Winthrop was elected Governor again in 1642, with Endicott as Deputy-Governor. The year was rendered notable by a controversy arising out of the Ru: Satans Tall publication - in manuscript copies, not by printing - of a book of Richard Salton- stall's, a son of that good Sir Richard 1 who had come over in the " Arbella " as one of Richard Salonstatt the Assistants, on the transfer of the charter and chief government to New England, and who, while returning home 1 [The autographs are those of father and son. - ED.]
VOL. 1 .- 17.
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THE MEMORIAL HISTORY OF BOSTON.
himself after a brief stay, left a part of his family behind him to perpetuate an honored name in the history of Massachusetts. The Book was prin- cipally aimed at "The Council for Life," to which only three persons had ever been chosen, - Winthrop, Dudley, and Endicott; of which, indeed, nothing but a nominal life-tenure remained, and of which Winthrop took oc- casion to say that " he was no more in love with the honor or power of it than with an old frieze coat in a summer's day." But a more serious controversy soon followed, which lasted for nearly two years, and which happily termi- nated in an organic change for the better in the mode of colonial legislation. " There fell out," says Winthrop, " a great business upon a very small oc- casion. Anno 1636 there was a stray sow in Boston, which was brought to Captain Keayne ; he had it cried divers times, and divers came to sce it, but none made claim to it for near a year. He kept it in his yard with a sow of his own. Afterwards, one Sherman's wife, having lost such a sow, laid claim to it,"-and so the story is pursued for many pages. This stray sow in the streets of Boston (and it was a white sow) is hardly less historical than the white sow which guided Æncas to the future site of Rome.1 It led to the great dispute between the magistrates and the deputies in re- gard to the " Negative Voice," and to the final separation, by solemn order, of the Legislature of Massachusetts into two co-ordinate branches, - Magis- trates and Deputies, or, as we now style them, Senators and Representatives. This order, as contained in the Colonial Records of March 7, 1644, is too notable to be omitted in any account of the gradual progress of the colony towards constitutional government. It is as follows : -
" Forasmuch as, after long experience, we find divers inconveniences in the man- ner of our proceeding in Courts by magistrates and deputies sitting together, and ac- counting it wisdom to follow the laudable practice of other States who have laid groundworks for government and order in the issuing of greatest and highest conse- quence, -
" It is therefore ordered, first, that the magistrates may sit and act business by themselves, by drawing up bills and orders which they shall see good in their wisdom, which having agreed upon, they may present them to the deputies to be considered of, how good and wholesome such orders are for the country, and accordingly to give their assent or dissent ; the deputies in like manner sitting apart by themselves, and consult- ing about such orders and laws as they in their discretion and experience shall find meet for common good, which, agreed upon by them, they may present to the magistrates, who, according to their wisdom, having seriously considered of them, may consent unto them or disallow them ; and when any orders have passed the approbation of both magistrates and deputies, then such orders to be engrossed, and in the last day of the Court to be read deliberately, and full assent to be given ; provided, also, that all matters of judicature which this Court shall take cognizance of shall be issued in like manner." 2
But the record of 1642 must not be closed without recalling the fact that it was the year of the first Commencement of Harvard College. Endowed
1 Virgil, Æneid, bk. iii. lines 390-94. 2 Massachusetts Colonial Records, ii. 58, 59.
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by the infant colony in 1636, the College assumed a practical existence in 1638, taking the name of the Rev. John Harvard, of whom, alas! so little is known except his immortal bequest. And now, at the end of the first four years' term, Governor Winthrop has the satisfaction of making the following entry in his Journal : -
" Nine bachelors commenced at Cambridge ; they were young men of good hope, and performed their acts so as gave good proof of their proficiency in the tongues and arts. (8.) 5. The general court had settled a government or superintendency over the college, viz., all the magistrates and elders over the six nearest churches and the president, or the greatest part of these. Most of them were now present at this first Commencement, and dined at the college with the scholar's ordinary commons, which was done of purpose for the students' encouragement, &c., and it gave good content to all."
Winthrop was again elected Governor for 1643, with Endicott as his Deputy-Governor. The General Court, at its first session of this year, divided " the whole plantation within this jurisdiction" into four shires, or counties, - Suffolk, with Boston at its head, and seven other towns ; Norfolk, with "Salsberry" at its head, and five other towns; Essex, with Salem at its head, and seven other towns; Middlesex, with Charlestown at its head, and eight other towns. There were thus already thirty-four towns in Massachusetts, distributed among four counties, or shires. At the following session, a number of the neighboring Indian Sachems made voluntary submission of themselves to the government of Massachusetts, and the records contain sundry questions which were propounded to them, with their answers of consent or agreement. A single one of the nine or ten will illustrate their character : -
" 3. Not to do any unnecessary worke on ye Sabath day, especially wthin ye gates of Christian townes."
Answer : " It is easy to ym; they have not much to do on any day, and they can well take their ease on y! day."
But the great event of this year, and one of the most memorable events in the early history of our whole country, was the final formation of that New England Confederation or Union, by written articles of agreement, which is the original example and pattern of whatever unions or confedera- tions have since been proposed or established on the American Continent. It was adopted by only four Colonies, - Massachusetts and Plymouth, Connecticut and New Haven, - the four which were afterwards consolidated into two. But it was formed by those who were " desirous of union and studious of peace," and it embodied principles, and recognized rights, and established precedents, which have entered largely into the composition of all subsequent instruments of union. It had been proposed as early as 1637, and Governor Winthrop had labored unceasingly to accomplish it for six years. He was recognized as its principal prompter and promoter
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by the famous Thomas Hooker, of Connecticut, in a remarkable letter, thank- ing him for the " speciall prudence " with which he had labored " to settle a foundation of safety and prosperity in succeeding ages," and for laying, with his faithful assistants, " the first stone of the foundation of this com- bynation of peace."1 The little congress of commissioners was held and organized in Boston on the 7th (17th) of September, 1643, the birthday of the town, and Winthrop was elected its first president. The same day of the same month, nearly a hundred and fifty years later (1787), was to mark the adoption of the Constitution of the United States, in which it is not dif- ficult to discern some provisions which may have owed their origin to the Articles of this old New England Confederation.
The year 1643 did not end without witnessing the rise and progress, but unhappily not the end, of the La Tour and D'Aulnay controversy, which involved not a few of the jealousies and animosities which have more re- cently occupied the public mind in connection with foreigners and Papists, and which involved also some nice points of neutrality and international law. Governor Winthrop gave vigorous expression to his views on the subject in one of the papers to which the controversy gave occasion, and in particular reply to some reproaches which were cast upon his own course. This paper has been preserved by Hutchinson,2 and contains the following passage near its close : -
" All amounts to this summe : The Lord hath brought us hither, through the swelling seas, through the perills of pyrates, tempests, leakes, fires, rocks, sands, dis- eases, starvings ; and hath here preserved us these many yeares from the displeasure of Princes, the envy and rage of Prelates, the malignant plots of Jesuits, the mutinous contentions of discontented persons, the open and secret attempts of barbarous In- dians, the seditious and undermining practices of hereticall false brethren ; and is our confidence and courage all swallowed up in the feare of one D'Aulnay? "
But this much-vexed controversy, with all the others, belongs to a dif- ferent writer and another chapter.3
The political year of 1644 opens with the election of Endicott as Gover- nor, and Winthrop as Deputy-Governor. The year was one of much political agitation. Grave discussions were held at the successive sessions of the General Court as to the principles on which the government should be administered, and particularly as to the respective powers of the two branches of the Legislature. The magistrates and deputies were drawn into frequent and earnest contention with each other, and the ministers and elders were sometimes called upon to give judgment or arbitrate between them. In connection with this controversy, and in justification of his own views, Winthrop prepared an elaborate Treatise on Government, entitled " Arbi- trary Governm! described : and the Government of the Massachusetts vin-
1 Letter of Hooker, 4 Mass. Hist. Coll. vi. PP. 389-390. [ See, further, in Mr. Smith's chap- ter on "Boston and the Neighboring Jurisdic- tions."- ED.]
2 Hutchinson, Collection of Original Papers, P. 121-132.
3 [By C. C. Smith, " Boston and the Neigh- boring Jurisdictions." - ED. I
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dicated from that Aspersion." This work only added fuel to the flame. While it was still the subject of private consultation, and before it was revised and prepared for presentation to the General Court, some of the deputies succeeded in procuring a copy, and made it the subject of cen- sorious criticism. An autograph copy has lately been discovered among Winthrop's papers, and it has very recently been printed for the first time since it was written.1
Thomas Dudley was substituted for Endicott as Governor in 1645, and Winthrop was again made Deputy-Governor. The Governor's Journal for this year contains the following noteworthy record : -
" Divers free schools were erected, as at Roxbury (for maintenance whereof every inhabitant bound some house or land for a yearly allowance forever) and at Boston, where they made an order to allow forever 50 pounds to the master and an house, and 30 pounds to an usher, who should also teach to read and write and cipher, and Indians' children were to be taught freely, and the charge to be by yearly contribution, either by voluntary allowance, or by rate of such as refused, &c. ; and this order was confirmed by the General Court [blank]. Other towns did the like, providing main- tenance by several means."
But the most signal event of this year was what has sometimes been called " the Impeachment of Winthrop." The story is told so well by Dr. Palfrey, in his History of New England,2 that we are unwilling to give it any other words than his: -
" A dispute, local in its origin, and apparently of slight importance for a time, but. finally engaging at once the military, the religious, and the civil authorities of the col- ony, was bequeathed by Endicott to his successor. The train-band of the town of Hingham, having chosen Anthony Eames to be their captain, 'presented him to the Standing Council for their allowance.' While the business was in this stage, the soldiers altered their minds, and in a second election gave the place to Bozoun Allen. The magistrates, thinking that an injustice and affront had been offered to Eames, determined that the former election should be held valid until the Court should take further order. The company would not obey their captain, and mutinied. He was summoned before the church of his town, under a charge of having made misrepresentations to the mag- istrates. He went to Boston and laid his case before them. They 'sent warrant to the constable to attach some of the principal offenders [Peter Hobart, minister of Hingham, being one ] to appear before them at Boston, to find sureties for their ap- pearance at the next Court.' Hobart came and remonstrated so intemperately that 'some of the magistrates told him that, were it not for respect for his ministry, they woukl commit him.' Two of those arraigned with him refused to give bonds, and Winthrop sent them to jail.
"So the affair stood at the time of Dudley's accession. Hobart and some cighty of his friends petitioned for a hearing before the General Court upon the lawfulness of their committal ' by some of the magistrates, for words spoken concerning the power of the General Court, and their liberties, and the liberties of the Church.' The dep-
1 Life and Letters of John Winthrop, ii. 440- throp, in 1876, to the Public Library, where it 459. [The original manuscript, with all the now is .- En.] papers relating to it, was given by Mr. Win-
2 Vol. ii. p. 254.
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uties, on their part, complied with the request, and sent a vote accordingly to the magistrates for their concurrence. The magistrates 'returned answer, that they were willing the cause should be heard, so as the petitioners would name the magistrates whom they intended, and the matters they would lay to their charge, &c. The peti- tioners' agents, who were then deputies of the Court, ... thereupon singled out the Deputy-Governor [Winthrop], and two of the petitioners undertook the prosecution.' The magistrates were loath to sanction so irregular a proceeding ; but Winthrop de- sired to make his vindication, and the petitioners were permitted to have their way.
"; The day appointed being come, the Court assembled in the meeting-house at Boston. Divers of the elders were present, and a great assembly of people. The Deputy-Governor [Winthrop], coming in with the rest of the magistrates, placed him- self beneath within the bar, and so sat uncovered.' At this 'many both of the Court and the assembly were grieved.' But he said that he had taken what was the fit place for an accused person, and that, 'if he were upon the bench, it would be a great dis- advantage to him, for he could not take that liberty to plead the cause which he ought to be allowed at the bar.'
" In the full argument which followed, the Deputy-Governor 'justified all the par- ticulars laid to his charge ; as that, upon credible information of such a mutinous prac- tice and open disturbance of the peace and slighting of authority, the offenders were sent for, the principal by warrant to the constable to bring them, and others by summons, and that some were bound over to the next Court of Assistants, and others, that refused to be bound, were committed ; and all this according to the equity of laws here established, and the custom and laws of England, and our constant practice these fifteen years.' "
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