ORIGIN AND SETTLEMENT OF NEW-ENGLAND.
§ 52. We may now advert in a brief manner
to the history of the Northern, or Plymouth Company. That company possessed
fewer resources and less enterprise than the Southern; and thought aided by men
of high distinction, and among others by the public spirit and zeal of Lord
Chief Justice Popham, its first efforts for colonization were feeble and
discouraging. Capt. John Smith, so well known in the History of Virginia by his
successful adventures under their authority, lent a transient luster to their
attempts; and his warm descriptions of the beauty and fertility of the country
procured for it from the excited imagination of the Prince, after King Charles
the First, the flattering name of New-England, a name, which effaced from it
that of Virginia, and which has since become dear beyond expression to the
inhabitants of its harsh but salubrious climate. 1
§ 53. While the company was yet
languishing, an event occurred, which gave a new and unexpected aspect to its
prospects. It is well known, that the religious dissensions consequent upon the
reformation, while they led to a more bold and free spirit of discussion, failed
at the same time of introducing a correspondent charity for differences of
religious opinion. Each successive sect entertained not the slightest doubt of
its own infallibility in doctrine and worship, and was eager to obtain
proselytes, and denounce the errors of its opponents. If it had stopped here, we
might have forgotten, in admiration of the sincere zeal for Christian truth, the
desire of power, and the pride of mind, which lurked within the inner folds of
their devotion. But unfortunately the spirit of intolerance was abroad in all
its stern and unrelenting severity. To tolerate errors was to sacrifice
Christianity to mere temporal interests. Truth, and truth alone, was to be
followed at the hazard of all consequences; and religion allowed no compromises
between conscience and worldly comforts. Heresy was itself a sin of a deadly
nature, and to extirpate it was a primary duty of all, who were believers in
sincerity and truth. Persecution, therefore, even when it seemed most to violate
the feelings of humanity and the rights of private judgment, never wanted
apologists among those of the purest and most devout lives. It was too often
receive with acclamations by the crowd, and found an ample vindication from the
learned and the dogmatists; from the policy of the civil magistrate, and the
blind zeal of the ecclesiastic. Each sect, as it attained power, exhibited the
same unrelenting firmness in putting down its adversaries. 2
The papist and the prelate, the Puritan and the Presbyterian, felt no
compunctions in the destruction of dissentients from their own faith. They
uttered, indeed, loud complaints of the injustice of their enemies, when they
were themselves oppressed, but it was not from any abhorrence of persecution
itself, but of the infamous errors of the persecutors. There are not wanting on
the records of the history of these times abundant proofs, how easily sects,
which had borne every human calamity with unshrinking fortitude for conscience'
sake, could turn upon their inoffensive, but, in their judgment, erring
neighbors, with a like infliction of suffering. 5
Even adversity sometimes fails of producing its usual salutary effects of
moderation and compassion, when a blind but honest zeal has usurped dominion
over the mind. If such a picture of human infirmity may justly add to our
humility, it may also serve to admonish us of the Christian duty of forbearance.
And he, who can look with an eye of exclusive censure on such scenes, must have
forgotten, how many bright examples they have afforded of the liveliest virtue,
the most persuasive fidelity, and the most exalted piety.
§ 54. Among others, who suffered
persecutions from the haughty zeal of Elizabeth, was a small sect, called from
the name of their leader, Brownists, to whom we owe the foundation of the now
wide spread sect of Congregationalists or Independents. After sufferings of an
aggravated nature, they were compelled to take refuge in Holland under the care
of their pastor, Mr. John Robinson, a man distinguished for his piety, his
benevolence, and his intrepid spirit. 6
After remaining there some years, they concluded to emigrate to America in the
hope, that they might thus perpetuate their religious discipline, and preserve
the purity of an apostolical church. 7
In conjunction with other friends in England they embarked on the voyage with a
design of settlement on Hudson's river in New-York. But against their intention
they were compelled to land on the shores of Cape Cod in the depth of winter,
and the place of their landing, was called Plymouth, which has since become so
celebrated as the first permanent settlement in New-England. 8
Not having contemplated any plantation at this place, they had not taken the
precaution to obtain any charter from the Plymouth Company. The original plan of
their colony, however, is still preserved; 9
and it was founded upon the basis of a community of property, at least for a
given space of time, a scheme, as the event showed, utterly incompatible with
the existence of any large and flourishing colony. Before their landing they
drew up and signed a voluntary compact of government, forming, if not the first,
at least the best authenticated case of an original social contract for the
establishment of a nation, which is to be found in the annals of the world.
Philosophers and jurists have perpetually resorted to the theory of such a
compact, by which to measure the rights and duties of governments and subjects;
but for the most part it has been treated as an effort of imagination,
unsustained by the history or practice of nations, and furnishing little of
solid instruction for the actual concerns of life. It was little dreamed of,
that America should furnish an example of it in primitive and almost patriarchal
§ 55. On the 11th of November, 1620, these
humble but fearless adventurers, before their landing, drew up and signed an
original compact, in which, after acknowledging themselves subjects of the crown
of England, they proceed to declare: "Having undertaken for the glory of
God and the advancement of the Christian faith and the honor of our king and
country, a voyage to plant the first colony in the northern parts of Virginia,
we do by these presents solemnly and mutually, in the presence of God and of one
another, covenant and combine ourselves together into a civil body politic, far
our better ordering and preservation and furtherance of the ends aforesaid. And
by virtue hereof do enact, constitute, and frame such just and equal laws,
ordinances, acts, constitutions, and officers from time to time as shall be
thought most meet and convenient for the general good of the colony; unto which
we promise all due submission and obedience." This is the whole of the
compact, and it was signed by forty-one persons. 10
It is in its very essence a pure democracy; and in pursuance of it the colonists
proceeded soon afterwards to organize the colonial government, under the name of
the Colony of New Plymouth, to appoint a governor and other officers, and to
enact laws. The governor was chosen annually by the freemen, and had at first
one assistant to aid him in the discharge of his trust. 11
Four others were soon afterwards added, and finally the number was increased to
seven. 12 The supreme legislative power
resided in, and was exercised by the whole body of the male inhabitants, every
freeman, who was a member of the church, being admitted to vote in all public
affairs. 13 The number of settlements
having increased, and being at a considerable distance from each other, a house
of representatives was established in 1639; 14
the members of which, as well as all other officers, were annually chosen. They
adopted the common law of England as the general basis of their jurisprudence,
varying it however from time to time by municipal regulations better adapted to
their situation, or conforming more exactly to their stern notions of the
absolute authority and universal obligation of the Mosaic Institutions.
§ 56. The Plymouth Colonists acted, at
first, altogether under the voluntary compact and association already mentioned.
But they daily felt embarrassments from the want of some general authority,
derived directly or indirectly from the crown, which should recognize their
settlement and confirm their legislation. After several ineffectual attempts
made for this purpose, they at length succeeded in obtaining, in January, 1629,
a patent from the council established at Plymouth, in England, under the charter
of King James of 1620. 16 This patent,
besides a grant of the territory upon the terms and tenure of the original
patent of 1620, included an authority to the patentee (William Bradford) and his
associates, "to incorporate by some usual or fit name and title him or
themselves, or the people there inhabiting under him or them, and their
successors, from time to time, to frame and make orders, ordinances, and
constitutions, as well for the better government of their affairs here, and the
receiving or admitting any into his or their society, as also for the better
government of his or their people, or his or their people at sea in going
thither or returning from thence; and the same to put or cause to be put in
execution, by such officers and ministers as he or they shall authorize and
depute; provided, that the said laws and orders be not repugnant to the laws of
England or the frame of government by the said president and council [of
Plymouth Company] hereafter to be established." 17
§ 57. This patent or charter seems never to
have been confirmed by the crown; 18 and
the colonists were never, by any act of the crown, created a body politic and
corporate with any legislative powers. They, therefore, remained in legal
contemplation a mere voluntary association, exercising the highest powers and
prerogatives of sovereignty, and yielding obedience to the laws and magistrates
chosen by themselves. 19
§ 58. The charter of 1629 furnished them,
however, with the colour of delegated sovereignty, of which they did not fail to
avail themselves. They assumed under it the exercise of the most plenary
executive, legislative, and judicial powers with but a momentary scruple as to
their right to inflict capital punishments. 20
They were not disturbed in the free exercise of these powers, either through the
ignorance or the connivance of the crown, until after the restoration of Charles
the Second. Their authority under their charter was then questioned; and several
unsuccessful attempts were made to procure a confirmation from the crown. They
continued to cling to it, until, in the general shipwreck of charters in 1684,
theirs was overturned. An arbitrary government was then established over them in
common with the other New-England colonies; and they were finally incorporated
into a province with Massachusetts under the charter granted to the latter by
William and Mary in 1691. 21
§ 59. It may not be without use to notice a
few of the laws, which formed, what may properly be deemed, the fundamentals of
their jurisprudence. After providing for the manner of choosing their governor
and legislature, as above stated, their first attention seems to have been
directed to the establishment of "the free liberties of the free-born
people of England." It was therefore declared, 22
almost in the language of
Magna Charta, that justice should be impartially administered unto all,
not sold, or denied; that no person should suffer "in respect to life,
limb, liberty, good name, or estate, but by virtue or equity of some express law
of the General Court, or the good and equitable laws of our nation suitable for
us, in matters which are of a civil nature, (as by the court here hath been
accustomed,) wherein we have no particular law of our own;" and none should
suffer without being brought to answer by due course and process of law; that in
criminal and civil cases there should be a trial by jury at all events upon a
final trial on appeal; with the right to challenge for just cause; and in
capital cases a peremptory right to challenge twenty jurors as in England; that
no party should be cast or condemned, unless upon the testimony of two
sufficient witnesses, or other sufficient evidence or circumstances, unless
otherwise specially provided by law; that all persons of the age of twenty-one
years, and of sound memory, should have power to make wills and other lawful
alienations of their estate, whether they were condemned, or excommunicated or
other; except that in treason their personal estate should be forfeited; but
their real estate was still to be at their disposal. All processes were directed
to be in the king's name. 23 All trials
in respect to land were to be in the county, where it lay; and all personal
actions, where one of the parties lived; and lands and goods were liable to
attachment to answer the judgment rendered in any action. All lands were to
descend according to the free tenure of lands of East Greenwich, in the county
of Kent; and all entailed lands according to the law of England. All the sons
were to inherit equally, except the eldest, who was to have a double share. If
there were no sons, all the daughters were to inherit alike. Brothers of the
whole blood were to inherit; and if none, then sisters of the whole blood. All
conveyances of land were to be by deed only, acknowledged before some
magistrate, and recorded in the public records. Among capital offenses were
enumerated, without any discrimination, idolatry, blasphemy, treason, murder,
witchcraft, bestiality, sodomy, false witness, man-stealing, cursing or smiting
father or mother, rape, willful burning of houses and ships, and piracy; while
certain other offenses of a nature quite as immoral and injurious to society
received a far more moderate punishment. Undoubtedly a reverential regard for
the Scriptures placed the crimes of idolatry, blasphemy, and false witness, and
cursing and smiting father and mother, among the capital offenses. And, as might
well be presumed from the religious sentiments of the people, ample protection
was given to the church; and the maintenance of a public orthodox ministry and
of public schools were carefully provided for. 24
§ 60. Compared with the legislation of some
of the colonies during an equal period, the laws of the Plymouth colony will be
found few and brief. This resulted in some measure from the narrow limits of the
population and business of the colony; but in a greater measure from their
reliance in their simple proceedings upon the general principles of the common
1. Robertson's America, B. 10;
Marsh. Amer. Col. ch. 3, p. 77, 78; 1 Haz. Coll. 103, 147, 404;
1 Belknap's New-Hampshire, ch 1.
2. Dr. Robertson has justly observed,
that not only the idea of toleration, but even the word itself in the sense now
affixed to it, was then unknown. 3 Sir
James Mackintosh, a name equally glorious in judicial and ethical philosophy,
has remarked, that this giant evil (the suppression of the right of private
judgment in matters of religion) had received a mortal wound from Luther, who in
his warfare with Rome had struck a blow against all human authority, and
unconsciously disclosed to mankind, that they were entitled, or rather bound to
form and utter their own opinions and most of all on the most deeply interesting
3. The whole passage deserves
commendation for its catholic spirit. Robertson's America, B. 10.
4. Mackintosh's dissertation on the Progress
of Ethical Philosophy, (Phila. 1832,) p. 36.
5. Robertson's America, B. 10; 1
Belknap's New-Hampshire, ch. 3; 1 Chalm.
Annals, p. 143, 145, 169, 189, 190, 191; 3 Hutch. Hist. 42.
6. Belknap's New-Hampshire, ch.
3; 1 Doug. Summ. 369.
7. Morton's Mem. 1 to 30.
8. Robertson's America, B. 10;
Marsh. Amer. Col. ch. 3, p. 79, 80; Morton's Mem. 31 to 35.
9. 1 Haz. Coll. 87, 88; Morton's
Mem. App. 373.
10. 1 Haz. Coll. 119; Morton's
Mem. 37; Marsh. Colon. ch. 3, p. 80; Robertson's America,
B. 10; 2 Hutch. Hist. 455.
11. Plymouth Laws, (1685); 1 Haz. Coll.
12. Morton's Mem. 110; Prince's
Annals, 225; 2 Hutch. Hist. 463, 465; 1 Haz. Coll. 404,
408, 411, 412.
13. Robertson's America, B. 10;
2 Hutch. Hist. 467; 1 Haz. Coll. 408, 411, 412, 114.
14. 2 Hutch. Hist. 463.
15. Robertson's America, B. 10;
2 Hutch. Hist. 462, 463, 464; Hubbard's
Hist. ch. 10, p. 62; Chalmers's Annals, p. 88.
16. 2 Hutch. Hist. 464, 479; 1
Haz. Collec. 298, 404, 468; 1 Chalm.
Annals, 97, 98; 1 Holmes' Annals, 201.
17. 1 Haz. Coll. 298, 404.
18. Chalmers says, (1 Chalm. Annals,
97,) that "this patent was not confirmed by the crown, though the contrary
has been affirmed by the colonial historians." See also Marsh. Hist. of
the Colonies, ch. 3. 82, 83.
19. Marsh. Hist. Colon. ch. 3,
p. 82; 1 Chalm. Annals, 87, 88, 97.
20. 2 Hutch. Hist. 464, 465,
467; Chalm. Annals, 88.
21. Hutch. Hist. 479, 480;
Chalm. Annals, 97, 98.
22. In 1636. See 1 Haz. Coll.
404, 408; Id. 178, Plymouth Colony Laws (edit. 1685;) 1 Haz. Coll. 411,
23. 1 Haz. Coll. 473; Plymouth
Col. Laws, (1688,) p. 16.
24. More ample information upon all
these subjects will be furnished by an examination of the Plymouth Colony Laws,
first printed in 1685.
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