CHAPTER III.

THE CONFEDERACY OF THE COLONIES.

A STUDY of the civil policy of the Massachusetts colony reveals the fact that sturdy and rigid Puritanism lay at the basis of all legislation. The people themselves placed greater faith in the five points of Calvinism than in the five points of a well-founded government-an hereditary monarchy, an established church, an order of nobility, a standing army, and a military police. Upon all occasions, and under all circumstances, they subordinated the government to the church, and believed that no sort of government was admissible which was not so shaped as to secure the life and welfare of the church. "When a commonwealth," they affirmed, "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." And again: "Better the commonwealth be fashioned to the setting forth of God's house, which is his church, than to accommodate the church frame to the civil estate." It is always well to bear this truth in mind, when one is disposed to censure and explain the actions of our forefathers.

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The colonists possessed many invaluable rights, of which the charter of Charles I. was the cherished palladium. They held their lands as their own possessions, and forbade

Hutchinson, Coll., 27, 437.

strangers planting "at any place within the limits of the patent without leave from the governor and assistants, or the major part of them." We have already seen in what manner they dealt with those persons whose religious views they considered "dangerous." "If we be here a corporation," they maintained, "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 consent." When Vane became governor, he opposed this spirit of limitation; but Winthrop's reply prevailed. "The intent of the law," said he, "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."

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In 1631 it was ordered that "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." A most arbitrary law was this; for in no way can piety be promoted at the jeopardy of freedom and of justice. The purpose of its makers was evidently to build up a Puritan community on as exclusive a foundation as was that of the English Church during the reign of King James. It was as much a political regulation as it was a sectarian scruple. Such a policy was, unquestionably, a great mistake. As a writer has well said, "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, it may be doubted whether a different policy could have been safely adopted without subjecting the

1 Hutchinson, Coll., 67-100.

colonists to what they would have regarded as the greatest of all evils the intrusion of a body of men inimical to their views, whose aim would have been to subvert their church and destroy their government." 1

In 1634 another order was framed, compelling every male resident, twenty years old and upwards, not a freeman, to acknowledge, under oath, his subjection to the colonial government, and to promise obedience to the same. These three enactments thus secured "the allegiance of all not entitled to the immunities of citizenship."

By the terms of the colonial charter, the principal officers were to be chosen directly by the freemen. So soon as a settlement was formed, it was ruled that the governor and deputy should be chosen by the assistants from among themselves, and these assistants by the freemen. In the following year, however, it became lawful for the "commons to propose the names of such persons as they wished should be chosen as assistants; and shortly afterwards it was agreed that all officers should be "chosen anew every year by the whole court." The substitution of delegates to represent the freemen was an early proceeding, and in 1632"every town chose two men to be at the next court, to advise with the governor and assistants about the raising of a public stock, so as what they should agree upon should bind all." 2 In May, 1634, a House of Representatives was established, composed of twenty-four delegates. But even then the relative power of the officers and delegates was undetermined, and a discussion upon the point arose, when the people of Newtown requested permission to remove to Connecticut, which culminated in a political controversy of many years' duration.

1 Barry, i. 270.

Mass. Records, i. 87, seq.

In 1635 four of the magistrates were deputed to frame a body of laws which should bear a "resemblance to a Magna Charta." Nearly six years were spent before the code was finally completed. This "Body of Liberties," so called, comprised one hundred laws, and was adopted in December, 1641. Nathaniel Ward, of Ipswich, was the compiler of the system; and "as the author of the fundamental code," says Bancroft, "he is the most remarkable among all the early legislators of Massachusetts; he had been formerly a student and practiser in the courts of common law in England, but became a non-conforming minister; so that he was competent to combine the humane doctrines of the common law with the principles of natural right and equality, as deduced from the Bible." 1

We may here enumerate some of the more important features of this code. All general officers were to be elected annually, and recompensed from the common fund. The freemen in the several towns were to choose deputies from among themselves, "or elsewhere, as they judged fittest, who were to be paid from the treasury of the respective towns, and to serve at the most but one year.'" Twelve capital offences were recognized. Life, liberty, honor, and property were constantly under the protection of the law. Every man was promised equal justice under all circumstances, and had the liberty to move any question or present any petition at any court, council, or town meeting. All property was to be free from fines, and the disposition of the same by will was carefully secured and guarded. The rights of widows were respected, and the protection of the law was thrown around orphans. A refuge was granted to shipwrecked mariners, and their goods were

Bancroft, i. 416.

defended against spoliation. Slavery was prohibited, except in the case of "lawful captives taken in just war, and such strangers as willingly sell themselves, or are sold to us;" all such, however, were "to have all the liberties and Christian usages which the law of God established in Israel required." The old practice of wife-whipping was absolutely forbidden, although the court reserved the right of "chastisement" under just reasons. "Inhuman, cruel, or barbarous" modes of bodily punishments were not allowable; and "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 profligate." Death was the penalty only for murder, adultery, man-stealing, rape, and bearing false witness wittingly to deprive any man of life. With regard to religious matters, all who were orthodox in judg ment, and not scandalous in daily life, could become members of a church estate, and exercise all the ordinances of God. Such is a brief transcript of the Body of Liberties, which, embracing the freedom of the commonwealth, of municipalities, of persons, and of churches according to the principles of Independency, exhibits the truest picture of the principles, character, and intentions of that people, and the best evidence of its vigor and self-dependence." 1

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Says a quaint old writer, whose prophetic words may here fittingly find a place, "The air of New England, 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. Herein, saith the wise man, consisteth the 1 Bancroft, i. 418.