Chapter XIII: Act VII: Be it enacted by this present Grand Assembly ... That the (5)

Apetition was preferred by many of Dorchester, etc., for releasing the sentence against Mr. Stoughton the last general court; but it was rejected, and the sentence affirmed by the country to be just....

71. Secret Ballot in a Local Election, because of Democratic and Aristocratic Jealousies

Winthrop's _History of New England_.

The use of the ballot noted in No. 70 was not the first in New
England. An earlier instance in the General Court of the year
before has been noted (No. 67 _a_, note), and the following extract
shows an instance of its use in a town election, along with other
interesting political data. On the matter of the ballot, cf.
_American History and Government_, # 77.

December 11, 1634. This day after the lecture,[56] the inhabitants of Boston met to choose seven men who should divide the town lands among them. They chose _by papers_, and, in their choice, left out Mr. Winthrop, Coddington, and other of the chief men; only they chose one of the elders and a deacon, and the rest of the inferior sort, and Mr. Winthrop had the greater number before one of them by a voice or two. This they did, as fearing that the richer men would give the poorer sort no great proportions of land, but would rather leave a great part at liberty for new comers and for common, which Mr. Winthrop had oft persuaded them unto, as best for the town, etc. Mr. Cotton and divers others were offended at this choice, because they declined the magistrates; and Mr. Winthrop refused to be one upon such an election as was carried by a voice or two, telling them, that though, for his part, he did not apprehend any personal injury, nor did doubt of their good affection towards him, yet he was much grieved that Boston should be the first who should shake off their magistrates, especially Mr. Coddington, who had been always so forward for their enlargement; adding further reason of declining this choice, to blot out so bad a precedent. Whereupon, at the motion of Mr. Cotton, who showed them, that it was the Lord's order among the Israelites to have all such businesses committed to the elders, and that it had been nearer the rule to have chosen some of each sort, etc., they all agreed to go to a new election, which was referred to the next lecture day.[57]

72. Martial Law

_Records of the Governor and Company of Massachusetts Bay._

_Att a Generall Court holden at NeweTowne,
March 11th, 1634_ [_March 21, 1635._]

It is ordered, that the present Governor, Deputy Governor, John Winthrop, John Humfry, John Haynes, John Endicott, William Coddington, William Pinchon, Increase Nowell, Richard Bellingham, Esquire, and Simon Birdstreete, or the major parte of them, whoe are deputed by this Court to dispose of all millitary affaires whatsoever, shall have full power and aucthority to see all former lawes concerneing all military men and municion executed, and also shall have full power to ordeyne or remove all millitary officers, and to make and tender to them an oathe suteable to their places, to dispose of all companyes, to make orders for them, and to make and tender to them a suteable oath, and to see that strickt dissipline and traineings be observed, and to command them forth upon any occacion they thinke meete, to make either offensive or defensive warr, as also to doe whatsoever may be further behoofefull, for the good of this plantacion, in case of any warr that may befall us, and also that the aforesaid commissioners, or the major parte of them, shall have power to imprison or confine any that they shall judge to be enemyes to the commonwealth, and such as will not come under command or restrainte, as they shalbe required, it shalbe lawfull for the said commissioners to putt such persons to death. This order to continue till the end of the next Generall Court.

[At the next Court (May, 1635; the same to which Winthrop refers in
No. 70, above), this committee with its authority was continued for
one year, though this power was wholly unauthorized by the charter.
The reason was a desire to be prepared to resist a "General
Governor" from England. Cf. _American History and Government_, #
61.]

73. Life Council; Proxies; "Approved" Churches

Winthrop's _History of New England_.

April 7, 1636. At a general court it was ordered that a certain number of the magistrates should be chosen for life (the reason was, for that it was showed from the word of God, etc., that the principal magistrates ought to be for life).[58] ... It was likewise ordered ... that, in regard of the scarcity of vituals, the remote towns should send their votes by proxy to the court of elections,[59] and that no church ... should be allowed ... that was gathered without consent of the churches and magistrates.[60]

74. The Wheelwright Controversy (Political Aspects)

Winthrop's _History of New England_.

May 17, 1637. Our court of elections was at Newtown. So soon as the court was set, being about one of the clock, a petition was preferred by those of Boston. The governour would have read it, but the deputy said it was out of order; it was a court for elections, and those must first be despatched, and then their petitions should be heard. Divers others also opposed that course, as an ill precedent, etc.; and the petition, being about pretence of liberty, etc., (though intended chiefly for revoking the sentence given against Mr. Wheelwright,) would have spent all the day in debate, etc.; but yet the governour and those of that party would not proceed to election, except the petition was read. Much time was already spent about this debate, and the people crying out for election, it was moved by the deputy, that the people should divide themselves, and the greater number must carry it. And so it was done, and the greater number by many were for election. But the governour [Vane] and that side kept their place still, and would not proceed. Whereupon the deputy [Winthrop] told him, that, if he would not go to election, he and the rest of that side would proceed. Upon that, he came from his company, and they went to election; and Mr. Winthrop was chosen governour, Mr. Dudley deputy, and Mr. Endecott of the standing council; and Mr. Israel Stoughton and Mr. Richard Saltonstall were called in to be assistants; and Mr. Vane, Mr. Coddington, and Mr. Dummer, (being all of that faction,) were left quite out.

There was great danger of a tumult that day; for those of that side grew into fierce speeches, and some laid hands on others; but seeing themselves too weak, they grew quiet. They expected a great advantage that day, because the remote towns were allowed to come in by proxy; but it fell out, that there were enough beside. But if it had been otherwise, they must have put in their deputies, as other towns had done, for all matters beside elections. Boston, having deferred to choose deputies till the election was passed, went home that night, and the next morning they sent Mr. Vane, the late governour, and Mr. Coddington, and Mr. Hoffe, for their deputies; _but the court, being grieved at it, found a means to send them home again, for that two of the freemen of Boston[61] had not notice of the election._ So they went all home, and the next morning they returned the same gentleman again upon a new choice; and the court _not finding how they might reject them_, they were admitted....

75. Political and Social Conditions in New England before 1660

_a. Correspondence between Cotton and Certain English Lords, 1636_

Thomas Hutchinson's _History of Massachusetts Bay_ (1769), App. II.

In 1636, certain Puritan lords in England sent to John Cotton in
Massachusetts a series of conditions upon which they might come to
live in the colony. Cotton prepared the answers, with "such leading
men as [he] thought meete to consult."

_CERTAIN Proposals made by LORD SAY, LORD BROOKE, and other Persons of quality, as conditions of their removing to NEW-ENGLAND, with the answers thereto._

_Demand 1._ That the Commonwealth should consist of two distinct ranks of men,--whereof the one should be (for them _and their heirs_) gentlemen of the country; the other (for them and their heirs) freeholders.

_Answer._ Two distinct ranks we willingly acknowledge, from the light of nature and scripture; the one of them called Princes or Nobles, or Elders (amongst whom _gentlemen_ have their place); the other, _the people_. Hereditary dignity or honours we willingly allow to the former, unless by the scandalous and base conversation of any of them, they become degenerate. Hereditary liberty, or estate of freemen, we willingly allow to the other, unless they also, by some unworthy and slavish carriage, do disfranchize themselves.

_Dem. 2._ That in these gentlemen and freeholders, assembled together, the chief power of the Commonwealth shall be placed, both for making and repealing laws.

_Ans._ So it is with us.

_Dem. 3. That each of these two ranks should, in all public assemblies, have a negative voice, so as without a mutuall consent nothing should be established._

_Ans._ So it is agreed among us.

_Dem. 4._ That the first rank (consisting of gentlemen) should have power, for them and their heirs, to come to the parliaments or public assemblies, and there to give their free votes _personally_; the second rank (of freeholders) should have the same power for them and their heirs of meeting and voting, _but by their deputies_.

_Ans._ Thus far this demand is practiced among us. The freemen meet and vote by their deputies; the other rank give their votes personally, only with this difference, there be no more of the gentlemen that give their votes personally but such as are chosen to places of office, either governors, deputy governors, councellors, or assistants. All gentlemen in England have not that honour to meet and vote personally in parliament, much less all their heirs. But of this more fully, in an answer to the ninth and tenth demand.

_Dem. 5. That for facilitating and dispatch of business, and other reasons, the gentlemen and freeholders should sit and hold their meetings in two distinct houses._

_Ans. We willingly approve the motion, only as yet it is not so practiced among us, but in time, the variety and discrepancy of sundry occurrences will put them upon a necessity of sitting apart._

* * * * *

_Dem. 8._ [_The governor to be chosen from "gentlemen."_]

_Ans. We never practice otherwise, chusing the governor either out of the assistants, which is our ordinary course, or out of approved known gentlemen, as this year, Mr. Vane._

_Dem. 9._ That for the present, the Right Honorable the Lord Viscount Say and Seale, the Lord Brooke, who have already been at great disbursements for the public works in New-England, and such other gentlemen of approved sincerity and worth, as they, before their personal remove, shall take into their number, should be admitted for them and their heirs, gentlemen of the country. But for the future, none shall be admitted into this rank but by the consent of both houses.

_Ans._ The great disbursements of these noble personages and worthy gentlemen we thankfully acknowledge, because the safety and presence of our brethren at Connecticut is no small blessing and comfort to us. But, though that charge had never been disbursed, the worth of the honorable persons named is so well known to all, and our need of such supports and guides is so sensible to ourselves, that we do not doubt the country would thankfully accept it, as a singular favor from God and from them, if he should bow their hearts to come into this wilderness and help us. As for accepting them and their heirs into the number of gentlemen of the country, the custom of this country is, and readily would be, to receive and acknowledge, not only all such eminent persons as themselves and the gentleman they speake of, but others of meaner estate, so be it is of some eminency, to be for them and their heirs, gentlemen of the country. Only, thus standeth our case. Though we receive them with honor and allow them pre-eminence and accomodations according to their condition, yet we do not, ordinarily, call them forth to the power of election, or administration, of magistracy, until they be received as members into some of our churches, a privelege, which we doubt not religious gentlemen will willingly desire (as David did in Psal. xxvii. 4) and christian churches will as readily impart to such desirable persons. Hereditary honors both nature and scripture doth acknowledge (Eccles. x. 17.) but hereditary authority and power standeth only by the civil laws of some commonwealths, and yet even amongst them, the authority and power of the father is nowhere communicated, together with his honors, unto all his posterity. Where God blesseth any branch of any noble or generous family, with a spirit and gifts fit for government, it would be a taking of God's name in vain to put such a talent under a bushel, and a sin against the honor of magistracy to neglect such in our public elections. But if God should not delight to furnish some of their posterity with gifts fit for magistracy, we would expose them rather to reproach and prejudice, and the commonwealth with them, than exalt them to honor, if we should call them forth, when God doth not, to public authority....

[In Cotton's personal letter to Lord Say and Sele and Lord Brooke
(Hutchinson's _Massachusetts Bay_ (1765), App. III), a fuller
statement as to some features of Massachusetts practice and theory
is given. The English lords evidently objected to the restriction
of citizenship to church members. They wanted less of theocracy and
more of aristocracy. Cotton defends the middle course of the colony
as follows:

... "Your Lordships advertisement touching the civill state of
this colony, as they doe breath forth your singular wisdome, and
faithfulness, and tender care of the peace, so wee have noe reason
to misinterprite, or undervalue your Lordships eyther directions
or intentions therein. I know noe man under heaven (I speake in
Gods feare without flattery) whose counsell I should rather depend
upon, for the wise administration of a civill state according to
God, than upon your Lordship, and such confidence have I (not in
you) but in the Lords presence in Christ with you, that I should
never feare to betrust a greater commonwealth than this (as
much as in us lyeth) under such a _perpetuâ dictaturâ_ as your
Lordship should prescribe. For I nothing doubt, but that eyther
your Lordship would prescibe all things according to the rule, or
be willing to examine againe, and againe, all things according
to it. ... It is very suitable to Gods all-sufficient wisdome,
and to the fulnes and perfection of Holy Scriptures, not only to
prescribe perfect rules for the right ordering of a private mans
soule to everlasting blessednes with himselfe, but also for the
right ordering of a mans family, yea, of the commonwealth too, so
farre as both of them are subordinate to spiritual ends, and yet
avoide both the churches usurpation upon civill jurisdictions ...
and the commonwealths invasion upon ecclesiasticall administrations
... Gods institutions (such as the government of church and of
commonwealth may be) may be close and compact, and coördinate one
with another, and yet not confounded. God hath so framed the state
of church government and ordinances, that they may be compatible
to any common-wealth, though never so much disordered in his
frame. But yet when a commonwealth hath liberty to mould his owne
frame ... I conceyve the scripture hath given full direction for
the right ordering of the same. ... Mr. Hooker doth often quote a
saying out of Mr. Cartwright (though I have not read it in him)
that noe man fashioneth his house to his hangings, but his hangings
to his house. It is better that the commonwealth be fashioned to
the setting forth of Gods house, which is his church: than to
accommodate the church frame to the civill state. Democracy, I do
not conceyve that ever God did ordeyne as a fitt government eyther
for church or commonwealth. If the people be governors, who shall
be governed? As for monarchy, and aristocracy, they are both of
them clearely approoved, and directed in scripture, yet so as
referreth the soveraigntie to himselfe, and setteth up Theocracy
in both, as the best forme of government in the commonwealth as
well as in the church.

"The law, which your Lordship instanceth in [that none shall be
chosen to magistracy among us but a church member] was made and
enacted before I came into the country; but I have hitherto wanted
sufficient light to plead against it. ... Your Lordship's feare
that this will bring in papal excommunication, is just, and pious:
but let your Lordship be pleased againe to consider whether the
consequence be necessary....

"When your Lordship doubteth that this corse will draw all things
under the determination of the church ... (seeing the church is to
determine who shall be members, and none but a member may have to
doe in the government of a commonwealth) be pleased (I pray you)
to conceyve, that magistrates are neyther chosen to office in the
church. ... Nor neede your Lordship feare (which yet I speake with
submission to your Lordships better judgment) that this corse will
lay such a foundation, as nothing but a mere democracy can be built
upon it. Bodine confesseth, that though it be _status popularis_,
where a people choose their owne governors, =yet the government
is not a democracy, if it be administered, not by the people, but
by the governors=, whether one (for then it is a monarchy, though
elective) or by many, for then (as you know) it is aristocracy.
... Mean while two of the principall of [the requirements of the
Lords], the generall cort hath already condescended unto. 1. In
establishing a standing councell, who, during their lives, should
assist the governor in managing the chiefest affayres of this
little state. They have chosen, for the present, onely two (Mr.
Winthrope and Mr. Dudley) nor willing to choose more, till they see
what further better choyse the Lord will send over to them, that
so they may keep an open doore for such desireable gentlemen as
your Lordship mentioneth. 2. They have graunted the governor and
assistants a negative voyce, and reserved to the freemen the like
liberty also." ...]

_b. Social Legislation, October 14, 1651_

_Records of Massachusetts Colony_, IV, Pt. I, pages 60-61.

... "though we acknowledge it to be a matter of much difficultie, in regard of the blindnes of mens mindes and the stubbornes of their willes, to sett downe exact rules to confine all sorts of persons, yett wee cannot but account it our duty ... to declare our utter detestation ... that men or weomen _of meane condition_ should take uppon them the garbe of gentlemen, by wearing gold or silver lace or buttons, or points at their knees, or to walk in great bootes, or weomen of the same rancke to weare silke or tiffany hoodes or scarfes, which though allowable to persons of greater estates or more liberall education, yett we cannot but judge it intollerable in persons of such like condition: it is therefore ordered by this Courte ... that no person ... whose visible estates ... shall not exceed ... two hundred pounds, shall weare any gold or silver lace [etc.] uppon the penaltie of tenn shillings for every such offence, and every such delinquent to be presented by the graund jury," [with long and detailed provisions for enforcement].

76. Some Relations with England, 1638

_a. Attack upon the Massachusetts Charter_

Thomas Hutchinson's _Collection of Original Papers_ (1769), 105-106.

This is the last of several demands for the return of the charter
between the years 1634 and 1638. Winthrop refers to it as "a very
strict order." For the reasons why the colony "thought it safe" to
disregard the order, and for the earlier history, cf. _American
History and Government_, # 61.

_A Coppie of a Letter sent by the appointment of the Lords of the Council to Mr. Winthrop, for the Patent of this Plantation to be sent to them._

At Whitehall April 4th 1638. Present,

Lord Archbishop of Canterbury
Lord Keeper
Lord Treasurer
Lord Privy Seale
Earle Marshall
Earle of Dorset
Earle of Holland
Lord Cottington
Mr. Treasurer
Mr. Controuler
Mr. Secretary Cooke
Mr. Secretary Windebank

This day the Lords Commissioners for foreign Plantations, taking into consideration that the petitions and complaints of his Majestys subjects, planters and traders in New-England, grow more frequent than heretofore for want of a settled and orderly government in those parts, and calling to mind that they had formerly given order about two or three years since to Mr. Cradock a member of that plantation, to cause the grant or letters patent of that plantation (alleadged by him to be there remaining in the hands of Mr. Winthrop) to be sent over hither, and that notwithstanding the same, the said letters patent were not as yet brought over: And their Lordships being now informed by Mr. Attorney General that a Quo Warranto had been by him brought according to former order against the said patent, and the same was proceeded to judgment against so many as had appeared, and that they which had not appeared, were outlawed.

Their lordships well approving of Mr. Attorney's care and proceeding therein did now resolve and order, that Mr. Meawtis, clerk of the council attendant upon the said commissioners for foreign plantations, should in a letter from himselfe to Mr. Winthrop inclose and convey this order unto him. And their Lordships hereby in his Majestys name, and according to his express will and pleasure, strictly require and enjoine the said Winthrop or any other in whose power and custody the said letters patent are, that they fail not to transmit the said patent hither by the returne of the ship in which the order is conveyed to them, it being resolved that in case of any further neglect or contempt by them shewed therein, their lordships will cause a strict course to be taken against them, and will move his Majesty to reassume into his hands the whole plantation.

_b. The Refusal of the Colony_

Hutchinson's _Massachusetts Bay_ (1765), App. V. See introductory
matter to _a_, above.

_An Addresse of the General Court
To the Right Honourable the Lords Commissioners for foreigne
Plantations_ [_September 6/16, 1638_]

The humble Petition of the Inhabitants of the Massachusets in New England, of the Generall Court there assembled, the 6th day of September, in the 14th yeare of the Reigne of our Soveraigne Lord King CHARLES.

* * * * *

Whereas it hath pleased your Lordships, by order of the 4th of April last, to require our patent to be sent unto you, wee do hereby humbly and sincerely professe, that wee are ready to yield all due obedience to our soveraigne Lord, the King's majesty, and to your Lordships under him, and in this minde wee left our native countrie, and according thereunto, hath been our practice ever since, so as wee are much grieved, that your Lordships should call in our patent, there being no cause knowne to us, nor any delinquency or fault of ours expressed in the order sent to us for that purpose, our government being according to his Majestyes grant, and wee not answerable for any defects in other plantations, etc.

This is what his Majesties subjects here doe believe and professe, and thereupon wee are all humble suitors to your Lordships, that you will be pleased to take into further consideration our condition, and to affoord us the liberty of subjects, that we may know what is layd to our charge; and have leaive and time to answer for ourselves before we be condemned as a people unworthy of his Majesties favour or protection; as for the quo warranto mentioned in the said order, wee doe assure your Lordships wee were never called to answer to it, and if wee had, wee doubt not but wee have a sufficient plea to put in.

It is not unknowne to your Lordships, that we came into these remote parts with his Majesties licence and encouragement, under his great seale of England, and in the confidence wee had of that assurance, wee have transported our families and estates, and here have wee built and planted, to the great enlargement and securing of his Majesties dominions in these parts, so as if our patent should now be taken from us, we shall be looked on as runnigadoes and outlawed, and shall be enforced, either to remove to some other place, or to returne into our native country againe; either of which will put us to unsupportable extremities, and these evils (among others) will necessarily follow: (1.) Many thousand souls will be exposed to ruine, being layd open to the injuries of all men. (2.) If wee be forced to desert this place, the rest of the plantations (being too weake to subsist alone) will, for the most part, dissolve and goe with us, and then will this whole country fall into the hands of the French or Dutch, who would speedily imbrace such an opportunity. (3.) If we should loose all our labour and costs, and be deprived of those liberties which his Majesty hath granted us, and nothing layd to our charge, nor any fayling to be found in us in point of allegiance (which all our countrymen doe take notice of and will justify our faithfulness in this behalfe) it will discourage all men heereafter from the like undertakings upon confidence of his Majestyes royal grant. _Lastly, if our patent be taken from us (whereby wee suppose wee may clayme interest in his Majestyes favour and protection) the common people here will conseive that his Majesty hath cast them off, and that, heereby, they are freed from their allegiance and subjection, and, thereupon, will be ready to confederate themselves under a new government, for their necessary safety and subsistance, which will be of dangerous example to other plantations, and perillous to ourselves of incurring his Majestyes displeasure, which, wee would by all means avoyd._[62]

Upon these considerations wee are bold to renew our humble supplications to your Lordships, that wee may be suffered to live here in this wilderness, and that this poore plantation, which hath found more favour from God than many others, may not finde lesse favour from your Lordships [so] that our liberties should be restreyned, when others are enlarged, that the doore should be kept shutt unto us, while it stands open to all other plantations, that men of ability should be debarred from us, while they give incouragement to other colonies.

77. Democratic Discontent, 1639

(Winthrop's Denial of the Right of Petition; Abolition of the Life
Council; Delay in the Written Code)

Winthrop's _History of New England_.

May 22, 1639. The court of elections was: at which time there was a small eclipse of the sun. Mr. Winthrop was chosen governour again, though some laboring had been, by some of the elders and others, to have changed, not out of any dislike of him (for they all loved and esteemed him), but out of their fear lest it might make way for having a governour for life, which some had propounded as most agreeable to God's institution and the practice of all well-ordered states. But neither the governour nor any other attempted the thing; though some jealousies arose, which were increased by two occasions. The first was, there being want of assistants, the governour and other magistrates thought fit (in the warrant for the court) to propound three, amongst which Mr. Downing, the governour's brother-in-law, was one, which they conceived to be done to strengthen his party, and therefore, though he were known to be a very able man, etc., and one who had done many good offices for the country for these ten years, yet the people would not choose him. Another occasion of their jealousy was, the court, finding the number of deputies to be much increased by the addition of new plantations, thought fit, for the ease both of the country and the court, to reduce all towns to two deputies. This occasioned some to fear, that the magistrates intended to make themselves stronger, and the deputies weaker, and so, in time, to bring all power into the hands of the magistrates; so as the people in some towns were much displeased with their deputies for yielding to such an order. Whereupon, at the next session, it was propounded to have the number of deputies, restored; and allegations were made, that it was an infringement of their liberty; so as, after much debate, and such reasons given for diminishing the number of deputies, and clearly proved that their liberty consisted not in the number, but in the thing, divers of the deputies, who came with intent to reverse the last order, were, by force of reason, brought to uphold it; so that, when it was put to the vote, the last order for two deputies only was confirmed. Yet, the next day, a petition was brought to the court from the freemen of Roxbury, to have the third deputy restored. Whereupon the reasons of the court's proceedings were set down in writing, and all objections answered, and sent to such towns as were unsatisfied with this advice, that, if any could take away those reasons, or bring us better for what they did desire, we should be ready, at the next court, to repeal the said order.

The hands of some of the elders (learned and godly men) were to this petition, though suddenly drawn in, and without due consideration. For the lawfulness of it may well be questioned: for when the people have chosen men to be their rulers, and to make their laws, and bound themselves by oath to submit thereto, now to combine together (a lesser part of them) in a public petition to have any order repealed, which is not repugnant to the law of God, savors of resisting an ordinance of God; for the people, having deputed others, have no power to make or alter laws, but are to be subject; and if any such order seem unlawful or inconvenient, they were better prefer some reasons, etc., to the court, with manifestation of their desire to move them to a review, than peremptorily to petition to have it repealed, which amounts to a plain reproof of those whom God hath set over them, and putting dishonor upon them, against the tenor of the fifth commandment.

There fell out at this court another occasion of increasing the people's jealousy of their magistrates, viz.: One of the elders, being present with those of his church, when they were to prepare their votes for the election, declared his judgment, that a governour ought to be for his life, alleging for his authority the practice of all the best commonwealths in Europe, and especially that of Israel by God's own ordinance. But this was opposed by some other of the elders with much zeal, and so notice was taken of it by the people, not as a matter of dispute, but as if there had been some plot to put it in practice.

June 9, 1639 ... The people had long desired a body of laws, and thought their condition very unsafe, while so much power rested in the discretion of magistrates. Divers attempts had been made at former courts, and the matter referred to some of the magistrates and some of the elders; but still it came to no effect; for, being committed to the care of many, whatsoever was done by some, was still disliked or neglected by others. ... 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 of 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, consuetudines). 2. For that it would professedly transgress the limits of our charter, which provide, we shall make no laws repugnant to the laws of England, and that we were assured we must do. But to raise up laws by practice and custom had been no transgression; as in our church discipline, and in matters of marriage, to make a law, that marriages should 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. At length (to satisfy the people) it proceeded ...[63]

November, 1639. Some of the freemen, without the consent of the magistrates or governour, had chosen Mr. Nathaniel Ward to preach at this court, pretending that it was a part of their liberty. The governour (whose right indeed it is, for till the court be assembled the freemen are but private persons) would not strive about it, for though it did not belong to them, yet if they would have it, there was reason to yield it to them. ... In his sermon he delivered many useful things, but in a moral and political discourse, grounding his propositions much upon the old Roman and Grecian governments, which sure is an error, for if religion and the word of God makes men wiser than their neighbors, and these times have the advantage of all that have gone before us in experience and observation, it is probable that by all these helps, we may better frame rules of government for ourselves than to receive others upon the bare authority of the wisdom, justice, etc. of those heathen commonwealths. Among other things, he advised the people to keep all their magistrates in an equal rank, and not give more honor or power to one than to another, which is easier to advise than to prove, seeing it is against the practice of Israel (where some were rulers of thousands, and some but of tens) and of all nations known or recorded. Another advice he gave, that magistrates should not give private advice, and take knowledge of any man's cause before it came to public hearing. This was debated after in the general court, where some of the deputies moved to have it ordered. [Successfully resisted by the magistrates.]

[Wood's sermon shows that he regarded himself as put forward
to champion democratic doctrine: cf. Cotton's sermons for the
magistrates, noted in former entries. An entry of Winthrop's, dated
May 10, 1643, shows a continuance of this democratic purpose.

"Our court of elections was held, when Mr. Ezekiel Rogers, pastor
of the church in Rowley, preached. He was called to it by a company
of freemen, whereof the most were deputies chosen for the court.
... Mr. Rogers, hearing that exception was taken to this call,
as unwarrantable, wrote to the governour for advice, etc., who
returned him answer: That he did account his calling not to be
sufficient, yet the magistrates were not minded to strive with
the deputies about it, but seeing it was noised in the country,
and the people would expect him, and that he had advised with the
magistrates about it, he wished him to go on. In his sermon he
described how the man ought to be qualified whom they should choose
for their governour, yet dissuaded them earnestly from choosing the
same man twice together, and expressed his dislike of that with
such vehemency as gave offence. But when it came to trial, the
former governour, Mr. Winthrop, was chosen again."]

78. The Body of Liberties, 1641

Whitmore's _Bibliographical Sketch of the Laws of the Massachusetts
Colony_ gives the text in facsimile.

For the history and significance, see _American History and
Government_, # 81. Cf. also No. 77, above. The starred numbers each
contain some important advance upon English custom or law of the
day, and italic type is used to call attention to provisions that
especially justify the name, =Body of Liberties=.

_A Coppie of the Liberties of the Massachusets Collonie in New England_

The free fruition of such liberties, Immunities, and priveledges, as humanitie, Civilitie, and Christianitie call for as due to every man in his place and proportion, without impeachment and Infringement, hath ever bene and _ever will be the tranquillitie and Stabilitie of Churches and Commonwealths. And the deniall or deprivall thereof, the disturbance if not the ruine of both_....

Wee doe therefore this day religiously and unanimously decree and confirme these following Rites, liberties, and priveledges concerneing our Churches and Civill State, to be respectively impartiallie and inviolably enjoyed and observed throughout our Jurisdiction for ever.

1. No mans life shall be taken away, no mans honour or good name shall be stayned, no mans person shall be arested, restrayned, banished, dismembred, nor any wayes punished, no man shall be deprived of his wife or children, no mans goods or estaite shall be taken away from him, nor any way indammaged under Coulor of law, or Countenance of Authoritie, _unlesse it be by vertue or equitie of some expresse law of the Country warranting the same, established by a generall Court and sufficiently published_, or, _in case of the defect of a law_ in any partecular case, by the word of god. _And in Capitall cases_, or in cases concerning dismembring or banishment, _according to that word to be judged by the Generall Court_.

*2. Every person within this Jurisdiction, whether Inhabitant or forreiner shall enjoy the same justice and law, that is generall for the plantation, which we constitute and execute one towards another, without partialitie or delay.

* * * * *

5. No man shall be compelled to any publique worke or service unlesse the presse be grounded upon some act of the generall Court, and [he] have reasonable allowance therefore.

* * * * *

8. No mans Cattell or good of what kinde soever shall be pressed or taken for any publique use or service, unlesse it be by warrant grounded upon some act of the generall Court, nor without such reasonable prices and hire as the ordinarie rates of the Countrie do afford....

*9. No monopolies shall be granted or allowed amongst us, but of such new Inventions that are profitable to the Countrie, and that for a short time.

*10. All our lands and heritages shall be free from all fines and licences upon Alienations, and from all hariotts, wardships, Liveries, Primerseisens, yeare day and wast, Escheates, and forfeitures, upon the deaths of parents, or Ancestors, be they naturall, casuall, or Juditiall.

*11. All persons which are of the age of 21 yeares, and of right understanding and meamories, _whether_ [even if] _excommunicate or condemned_ shall have full power and libertie to make there wills and testaments, and other lawfull alienations of theire lands and estates.

12. _Every man whether Inhabitant or fforreiner, free or not free shall have libertie to come to any publique Court, Councell or Towne meeting, and either by speech or writeing to move any lawfull, seasonable, and materiall question, or to present any necessary motion, complaint, petition, Bill or information, whereof that meeting hath proper cognizance, so it be done in convenient time, due order, and respective manner._

* * * * *

16. Every Inhabitant that is an howse holder shall have free fishing and fowling in any great ponds and Bayes, Coves and Rivers, so farre as the sea ebbes and flowes within the presincts of the towne where they dwell, unless the free men of the same Towne or the Generall Court have otherwise appropriated them, provided that this shall not be extended to give leave to any man to come upon others proprietie without there leave.

*17. Every man of or within this Jurisdiction shall have free libertie, not with standing any Civill power, to remove both himselfe and his familie at their pleasure out of the same, provided there be no legall impediment to the contrarie.

_Rites Rules and Liberties concerning Juditiall proceedings_

18. _No mans person shall be restrained or imprisoned by any Authority what so ever_, _before the law hath sentenced him thereto_, if he can put in sufficient securitie, bayle, or mainprise, for his appearance, and good behaviour in the meane time, unlesse it be in Crimes Capitall, and Contempts in open Court, and in such cases where some expresse act of Court doth allow it.

19. If in a generall Court any miscariage shall be amongst the Assistants when they are by themselves that may deserve an Admonition or fine under 20 sh, it shall be examined and sentenced amongst themselves, If amongst the Deputies when they are by themselves, It shall be examined and sentenced amongst themselves, If it be when the whole Court is togeather, it shall be judged by the whole Court, and not severallie as before.[64]

* * * * *

*25. No Summons pleading Judgement, or any kinde of proceeding in
Court or course of Justice shall be abated, arested, or reversed,
upon any kinde of cercumstantiall errors or mistakes, if the person
and cause be rightly understood and intended by the Court.

* * * * *

29. In all Actions at law it shall be the libertie of the plantife and defendant by mutual consent to choose whether they will be tryed by the Bench or by a Jurie, unlesse it be where the law upon just reason hath otherwise determined. The like libertie shall be granted to all persons in Criminall cases.

30. It shall be in the libertie both of plantife and defendant, and likewise every delinquent (to be judged by a Jurie) to challenge any of the Jurors. And if his challenge be found just and reasonable by the Bench,[65] or the rest of the Jurie, as the challenger shall choose, it shall be allowed him....

34. If any man shall be proved and Judged a commen Barrator vexing others with unjust frequent and endlesse suites, It shall be in the power of Courts both to denie him the benefit of the law, and to punish him for his Barratry.

* * * * *

36. It shall be in the libertie of every man ... sentenced in any
cause in any Inferior Court, to make their Appeale to the Court of
Assistants, provided they tender their appeale and put in securitie
to prosecute it before the Court be ended wherein they were
condemned, and within six dayes next ensuing put in good securitie
before some Assistant to satisfie what his Adversarie shall recover
against him; And if the cause be of a Criminall nature, for his
good behaviour and appearance. And everie man shall have libertie
to complaine to the Generall Court of any Injustice done him in any
Court of Assistants or other.

* * * * *

40. No Conveyance, Deede, or promise what so ever shall be of validitie, If it be gotten by Illegal violence, imprisonment, threatenings, or any kinde of forcible compulsion called Dures.

41. Everie man that is to Answere for any Criminall cause, whether he be in prison or under bayle, his cause shall be heard and determined at the next Court that hath proper Cognizance thereof, And [i.e., if it] may be done without prejudice of Justice.

42. No man shall be twise sentenced by Civill Justice for one and the same Crime, offence, or Trespasse.

43. No man shall be beaten with above 40 stripes, nor shall any true gentleman, nor any man equall to a gentleman be punished with whipping,[66] unles his crime be very shamefull, and his course of life vitious and profligate.

*44. No man condemned to dye shall be put to death within fower dayes next after his condemnation, unles the Court see spetiall cause to the contrary, or in case of martiall law; nor shall the body of any man so put to death be unburied 12 howers, unlesse it be in case of Anatomie.

45. No man shall be forced by Torture to confesse any Crime against himselfe nor any other unlesse it be in some Capitall case where he is first fullie convicted by cleare and suffitient evidence to be guilty, After which, if the cause be of that nature That it is very apparent there be other conspiratours, or confederates with him, Then he may be tortured, yet not with such Tortures as be Barbarous and inhumane.

46. For bodilie punishments we allow amongst us none that are inhumane, Barbarous, or cruell.[67]

47. No man shall be put to death without the testimony of two or three witnesses, or that which is equivalent there unto.

49. No free man shall be compelled to serve upon Juries above two Courts in a yeare, except grand Jurie men, who shall hould two Courts together at the least.

*50. All Jurors shall be chosen continuallie by the freemen of the Towne where they dwell.

* * * * *

54. When so ever anything is to be put to vote, any sentence to be pronounced, or any other matter to be proposed, or read in any Court or Assembly, If the president or moderator thereof shall refuse to performe it, the Major parte of the members of that Court or Assembly shall have power to appoint any other meete man of them to do it, And, if there _be just cause, to punish_ him that should and would not.[68]

* * * * *

57. When so ever any person shall come to any very suddaine untimely and unnaturall death, Some Assistant, or the Constables of that Towne shall forthwith summon a Jury of twelve free men to inquire of the cause and manner of their death, and shall present a true verdict thereof to some neere Assistant, or the next Court to be helde for that Towne upon their oath.[69]

_Liberties more peculiarlie concerning the free men_

58. Civill Authorie hath power and libertie to see the peace, ordinances and Rules of Christ observed in every church according to his word, so it be done in a Civill and not in an Ecclesiastical way.

* * * * *

60. No church censure shall degrade or depose any man from any Civill dignitie, office, or Authoritie he shall have in the Commonwealth.

* * * * *

62. Any Shire or Towne shall have libertie to choose their Deputies whom and where they please for the General Court, So be it they be free men, and have taken there oath of fealtie, and [be] Inhabiting in this Jurisdiction.

* * * * *

66. The Freeman of everie Township shall have power to make such by laws and constitutions as may concerne the wellfare of their Towne, provided they be not of a Criminall, but onely of a prudentiall nature, And that their penalties exceede not 20 sh. for one offence. And that they be not repugnant to the publique laws and orders of the Countrie. And if any Inhabitant shall neglect or refuse to observe them, they shall have power to levy the appointed penalties by distresse.[70]

* * * * *

68. It is the libertie of the freemen to choose such deputies for the Generall Court out of themselves, either in their owne Townes or elsewhere as they judge fitest. And because we cannot forsee what varietie and weight of occasions may fall into future consideration, and what counsells we may stand in neede of, we decree: =_That the Deputies_= (to attende the Generall Court in the behalfe of the Countrie) =_shall not any time be stated or inacted, but from Court to Court, or at the most but for one yeare_=,--that the Countrie may have an Annuall libertie to do in that case what is most behoofefull for the best welfaire thereof.

69. =_No Generall Court shall be desolved or adjourned without the consent of the Major parte thereof._=[71]

70. All Freemen called to give any advise, vote, verdict, or sentence in any Court, Counsell, or Civill Assembly, shall have full freedome to doe it according to their true Judgements and Consciences, So it be done orderly and inofensively for the manner.

* * * * *

74. The freemen of every Towne or Towneship, shall have full power to choose yearly or for lesse time out of themselves a convenient number of fitt men to order the planting or prudentiall occasions of that Towne, according to Instructions given them in writeing, Provided nothing be done by them contrary to the publique laws and orders of the Countrie, provided also the number of such select persons be not above nine.[72]

_Liberties of Woemen_

*79. If any man at his death shall not leave his wife a competent portion of his estaite, upon just complaint made to the Generall Court, she shall be relieved.

*80. Everie marryed woeman shall be free from bodilie correction or stripes by her husband, unlesse it be in his owne defence upon her assalt. If there be any just cause of correction complaint shall be made to Authoritie assembled in some Court, from which onely she shall receive it.

_Liberties of Children_

81. When parents dye intestate, the Elder sonne shall have a doble portion of his whole estate reall and personall, unlesse the Generall Court upon just cause alleadged shall Judge otherwise.

83. When parents dye intestate, having noe heires males of their bodies, their Daughters shall inherit as Copartners, unles the Generall Court upon just reason shall judge otherwise.

83. If any parents shall wilfullie and unreasonably deny any childe timely or convenient mariage, or shall exercise any unnaturall severitie towards them, Such children shall have free libertie to complain to Authoritie for redresse.

84. No Orphan dureing their minoritie which was not committed to tuition or service by the parents in their life time, shall afterwards be absolutely disposed of by any kindred, friend, Executor, Towneship, or Church, nor by themselves, without the consent of some Court, wherein two Assistants at least shall be present.

_Liberties of Servants_

* * * * *

87. If any man smite out the eye or tooth of his man servant, or maid servant, or otherwise mayme or much disfigure him, unlesse it be by meere casualtie, he shall let them goe free from his service.[73] And shall have such further recompense as the Court shall allow him.

88. Servants that have served deligentlie and faithfully to the benefitt of their maisters seaven yeares, shall not be sent away emptie. And if any have bene unfaithfull, negligent or unprofitable in their service, notwithstanding the good usage of their maisters, they shall not be dismissed till they have made satisfaction according to the Judgement of Authoritie.

_Liberties of Forreiners and Strangers_

* * * * *

91. There shall never be any bond slaverie villinage or Captivitie amongst us,[74] unles it be lawfull Captives taken in just warres, and such strangers as willingly selle themselves or are sold to us. And these shall have all the liberties and Christian usages which the law of god established in Israell concerning such persons doeth morally require. This exempts none from servitude who shall be Judged thereto by Authoritie.

_Off [of] the Bruite Creature_

92. No man shall exercise any Tirranny or Crueltie towards any bruite Creature which are usuallie kept for mans use.

*93. If any man shall have occasion to leade or drive Cattel from place to place that is far of, So that they be weary, or hungry, or fall sick, or lambe, It shall be lawful to rest or refresh them, for a competent time, in any open place that is not Corne, meadow, or inclosed for some peculiar use.

94. _Capitall Laws_

1

[Sidenote: Dut. 13. 6. 10 Dut. 17. 2. 6 Ex. 22. 20]

If any man after legall conviction shall have or worship any other god, but the lord god, he shall be put to death.

2

[Sidenote: Ex. 22. 18. Lev. 20. 27. Dut. 18. 10.]

If any man or woeman be a witch, (that is hath or consulteth with a familiar spirit,) They shall be put to death.

3

[Sidenote: Lev. 24. 15. 16]

If any person shall Blaspheme the name of god, the father, Sonne or Holie ghost, with direct, expresse, presumptuous or high handed blashemie, or shall curse god in the like manner, he shall be put to death.

4

[Sidenote: Ex. 21. 12. Numb. 35. 13. 14. 30. 31.]

If any person comitt any wilfull murther, which is manslaughter, comitted upon premeditated mallice, hatred, or Crueltie, not in a mans necessarie and just defence, nor by meere casualtie against his will, he shall be put to death.

5

[Sidenote: Numb. 25. 20. 21. Lev. 24. 17.]

If any person slayeth an other suddainely, in his anger or Crueltie of passion, he shall be put to death.

6

[Sidenote: Ex. 21. 14.]

If any person shall slay an other through guile, either by poysoning or other such divelish practice, he shall be put to death.

* * * * *

10

[Sidenote: Ex. 21. 16.]