under the sign manual and signet, within three years, the same thenceforth to cease and become void; otherwise to continue in force according to the terms of their original enactment. The General Court was also invested with authority to grant any lands in the colonies of Massachusetts, New Plymouth, and province of Maine, with certain exceptions. The governor and council were invested with full jurisdiction as to the probate of wills and granting administrations. The governor was also made commander-inchief of the militia with the usual martial powers; but was not to exercise martial law without the advice of the council. In case of his death, removal, or absence, his authority was to devolve on the lieutenant-governor, or, if his office was vacant, then on the council. With a view also to advance the growth of the province by encouraging new settlements, it was expressly provided that there should be "a liberty of conscience allowed in the worship of God to all Christians except Papists"; and that all subjects inhabiting in the province and their children born there, or on the seas going or returning, should have all the liberties and immunities of free and natural subjects, as if they were born within the realm of England. And in all cases an appeal was allowed from the judgments of any courts of the province to the King in the Privy Council in England, where the matter in difference exceeded three hundred pounds sterling. And finally there was a reservation of the whole admiralty jurisdiction to the crown, and of a right to all subjects to fish on the coasts.1 Considering the spirit of the times, it must be acknowledged that, on the whole, this charter contains a liberal grant of authority to the province, and a reasonable reservation of the royal prerogative. It was hailed with sincere satisfaction by the colony, after the dangers which had for so long a time menaced its liberties and its peace.2

§ 72. In reviewing the laws passed by the Legislature of Massachusetts during its colonial state, the first and most important consideration is the early care with which the public rights of the inhabitants were declared and established. No man's life, person, honor, or good name was to be affected; no man was to be deprived of his wife or children or estate, unless by virtue or

1 The charter will be found at large in the Colony and Province Laws of Massachusetts, printed in 1814. Its substance is well summed up in 1 Holmes's Annals, 436. Under the first charter the admiralty jurisdiction was exercised by the Colonial Common Law Courts, even in capital cases. 1 Hutch. 451.

21 Hutch. Hist. 415, 416.

equity of some express law of the General Court, "or, in case of a defect of a law in any particular case, by the Word of God; and in capital cases, or in cases of dismembering or banishment according to that Word, to be judged of by the General Court."1 No persons but church-members were allowed to become freemen; and all persons of twenty-one years of age were allowed to dispose of their estate by will or any proper conveyance. All conveyances were to be by deed acknowledged and recorded in the public records. All lands and hereditaments were declared free Courts of law were established,

The trial by jury in civil and

from all fines and forfeitures. and local processes provided for. criminal cases was secured.5 Wager of law was not allowed but according to law, and according to the precept in Exodus (xxii. 8). Difficult cases of law were finally determinable in the Court of Assistants or in the General Court, by appeal or petition. In criminal cases where the law prescribed no penalty, the judges had power to inflict penalties "According to the rule of God's Word." Treason, murder, poisoning, arson, witchcraft, sodomy, idolatry, blasphemy, man-stealing, adultery, false witness, conspiracy and rebellion, cursing or smiting of parents by children, being a stubborn or rebellious son, burglary, and rape (in particular circumstances) were offences punishable with death. For the severity of some of these punishments the General Court expressly justified themselves by the language of the Scriptures. But theft was not punished with death, because, as they said, 8 we read otherwise in the Scriptures"; and many other crimes of a heinous nature were suffered to pass with a moderate punishment.9 Hutchinson has well observed, that "in punishing offences they professed to be governed by the judicial laws of Moses, but no further than those laws were of a moral nature." 10 Marriages were celebrated exclusively by magistrates during the

66

1 Hutch. Coll. 201.

2 Ant. Col. and Prov. Laws, ch. 4, p. 44; ch. 104, p. 204.

8 Ant. Col. and Prov. Laws, ch. 1, p. 41; ch. 28, p. 85; 1 Hutch. Hist. 455.

4 Hutch. Coll. 203, 205.

51 Hutch. 450; Hutch. Coll. 203, 205.

6 Hutch. Coll. 205.

7 Ant. Col. and Prov. Laws, ch. 18, p. 58, 59, 60; 1 Hutch. Hist. 440, 441, 442; 1 Belk. New Hampshire, ch. 4, p. 66.

8 Hutch. Coll. 205.

91 Hutch. Hist. 442, 443, 444; Ant. Col. and Prov. Laws, ch. 17, p. 56.

10 1 Hutch. Hist. 435, 439.

first charter; though

afterwards there was a concurrent power given to the clergy.1 Divorces a mensa et thoro seem not to have been in use during the period of the first charter; but for the same causes for which such a divorce might be granted by the spiritual courts, a divorce a vinculo was granted. Female adultery was a sufficient cause; but male adultery not.2 In tenderness to the marriage state, a man who struck his wife, or a woman her husband, was liable to a fine.3

§ 73. In the beginning the county courts had jurisdiction of the testamentary matters, and real estate was at first treated as mere bona in the civil law. When a positive rule was made, all the estate was (apparently with some reference to the Mosaic law) made subject to distribution; the widow had such part of the estate as the court held just and equal; and the rest was divided among the children or other heirs, the eldest son having a double portion, and the daughters, where there were no sons, inheriting as coparceners, unless the court otherwise should determine. If the party died insolvent, his estate was distributed among all his creditors, there not being any preference of any debts by judgment or specialty."

The law of inheritance was thus, as we see, altered from that of England from the beginning; and yet, strangely enough, the General Court, in their answer in 1646, considered their canon of descent as parallel to the English law, and expounded it by the same terms, "the eldest son is preferred before the younger in the ancestor's inheritance," when in reality he had only a double portion, and the estate was partible among all the children. Their land being by the charter held, as of the manor of East Greenwich, in free and common socage, they attributed to it the gavelkind quality of not being forfeited for felony or treason; and the convict might, therefore, even after sentence, dispose of it by will. Estates tail were recognized, and in such cases the heir took per formam doni, according to the common law, and not all the children as one heir.9

11 Hutch. Hist. 444.

31 Hutch. Hist. 445.

5 Ant. Col. and Prov. Laws, ch. 104, p. 205.

61 Hutch. Hist. 446.

205.

21 Hutch. Hist. 445.

41 Hutch. Hist. 446.

Hutch. Coll. 207; 1 Hutch. Hist. 447; Ant. Col. and Prov. Laws, ch. 104, p.

81 Hutch. Hist. 447.

91 Hutch. Hist. 447.

§ 74. In respect to ecclesiastical concerns, they made ample provision for their own church, (meaning the Congregational Church,) exclusive of all others. In their parallel in 1646, they quote the provision of Magna Charta, that "the church shall enjoy all her liberties," and, dropping all suggestion of the real differences of their own church establishment from that of England, they quote their own provision, that "all persons orthodox in judgment, and not scandalous in life, may gather into a church state, according to the rules of the gospel," as of similar import.1 They gave to their own churches, when organized, full power and authority to inflict ecclesiastical censures, and even to expel members. But they reserved to the civil authority the further power to punish offences, and "the liberty to see the peace, ordinances, and rules of Christ observed." 2 Every church had liberty to elect its own officers, and "no injunction was to be put upon any church, church officer, or member in point of doctrine, worship, or discipline, whether for substance or circumstance, besides the institution of the Lord." But the General Court, with the assistance of the clergy, were in the habit of judging of all such matters with supreme authority, and of condemning errors with no sparing hand. They had not the slightest scruple of punishing heresies with fines and banishment, and even, in obstinate cases, with death. Ministers were maintained and public worship provided for by taxes assessed upon the inhabitants of each parochial district; and an attendance upon public worship was required of all persons, under penalties, as a solemn duty. So effectual were the colonial laws in respect to conformity, and so powerful the influence of the magistrates and the clergy, that Hutchinson informs us that there was not "any Episcopal Church in any part of the colony until the charter was vacated.'

996

§ 75. But the most striking, as well as the most important part

1 Hutch. Collect. 201; Ant. Colon. and Prov. Laws, ch. 39, p. 100; 1 Haz. Coll.

488.

2 Ant. Col. and Prov. Laws, ch. 39, p. 100, 101.

8 1 Hutch. Hist. 420, 421, 422, 423, 424, 434; 1 Belk. New Hamp. ch. 4, p. 70, 71. 4 Robertson's America, B. 10; 1 Belk. New Hamp. ch. 4, p. 70 to 77; Ant. Col. and Prov. Laws, ch. 57, p. 120, &c.; Hutch. Coll. 215, 216; 1 Hutch. Hist. 431; 2 Hutch. Hist. 42; 1 Haz. Coll. 538; 1 Chalmers's Annals, 163, 164, 165, 167, 169, 189, 190, 191, 194.

51 Hutch. Hist. 427; Ant. Col. and Prov. Laws, ch. 39, p. 103, 104.

61 Hutch. Hist. 431.

of their legislation, is in respect to education. As early as 1647, the General Court, " to the end," as the preamble of the act declares, "that learning may not be buried in the graves of our forefathers in church and commonwealth," provided, under a penalty, that every township of fifty householders "shall appoint a public school for the instruction of children in writing and reading," and that every town of one hundred householders" shall set up a grammar school, the master thereof being able to instruct youth so far as may be fitted for the university." This law has, in substance, continued down to the present times; and it has contributed more than any other circumstance to give that peculiar character to the inhabitants and institutions of Massachusetts for which she, in common with the other New England States, indulges an honest and not unreasonable pride.

§ 76. After the grant of the provincial charter, in 1691, the legislation of the colony took a wider scope, and became more liberal as well as more exact. At the very first session an act passed, declaring the general rights and liberties of the people, and embracing the principal provisions of Magna Charta on this subject. Among other things, it was declared that no tax could be levied but by the General Court; that the trial by jury should be secured to all the inhabitants; and that all lands shall be free from escheats and forfeitures, except in cases of high treason.2 A habeas corpus act was also passed at the same session; but it seems to have been disallowed by the crown.3 Chalmers asserts that there is no circumstance in the history of colonial jurisprudence better established than the fact that the habeas corpus act was not extended to the plantations until the reign of Queen Anne.1

§ 77. It does not seem necessary to go into any minute-examination of the subsequent provincial legislation. In its general character it did not materially vary from that antecedently adopted, except so far as the charter required, or a progressive spirit of improvement invited a change. Lands were made liable to the payment of debts; the right of choosing their ministers was, after some struggles, secured in effect to the concurrent vote of the church and congregation in each parish; and the spirit of

1 Ant. Col and Prov. Laws, ch. 88, p. 186.

22 Hutch. Hist. 64; Ant. Col. and Prov. Laws, ch. 2, p. 214.

3

* 2 Hutch. Hist. 64.

1 Chalm. Annals, 56, 74.