44 HISTORY OF THE COLONIES. [BOOK I.
§ 61. About the period when the Plymouth colonists completed their
voyage, James the First, with a view to promote more effectually the
interests of the second or northern company, granted1 to the Duke of Lenox
and others of the company a new charter, by which its territories were
extended in breadth from the 40th to the 48th degree of north latitude; and
in length by all the breadth aforesaid throughout the main land from sea to
sea, excluding however all possession of any other Christian prince, and
all lands within the bounds of the southern colony.2 To the territory thus
bounded he affixed the name of New-England, and to the corporation itself
so created, the name of "The Council established at Plymouth in the county
of Devon, for the planting, ruling, ordering, and governing of New-England
in America"3 The charter contains the names of the persons, who were to
constitute the first council, with power to fill vacancies, and keep up a
perpetual succession of counselors to the number of forty. The power to
purchase, hold, and sell lands, and other usual powers of corporations are
then conferred on them, and special authority to make laws and ordinances,
to regulate the admission and trade of all persons with the plantation; to
dispose of their lands; to appoint and remove governors and other officers
of the plantation; to establish all manner of orders, laws
CH. IV.] MASSACHUSETTS. 45
1 Nov. 3, 1620; I Doug. Summ. 406, &c.
2 1 Haz. Coll. 103, 105, &c.
3 1 Haz. Coll. 99, 103, 106, 110, 111.
and directions, instructions, forms and ceremonies of government and
magistracy, so that the same be not contrary to the laws and statutes of
England; to correct, punish, pardon, govern, and rule all inhabitants of
the colony by such laws and ordinances, and in defect thereof, in cases of
necessity, according to the good discretions of their governors and
officers respectively, as well in cases capital and criminal as civil, both
marine and others, so always that the same ordinances and proceedings be,
as near as conveniently may be, agreeable to the laws, statutes,
government, and policy of England; and finally to regulate trade and
traffic to and from the colony, prohibiting the same to all persons not
licensed by the corporation.1 The charter further contains some
extraordinary powers in cases of rebellion, mutiny, misconduct, illicit
trade, and hostile invasions, which it is not necessary to particularize.
The charter also declares, that all the territory shall beholden of the
crown, as of the royal manor of East Greenwich, in Kent county, in free and
common soccage, and not in capite, nor by knight service;2 and that all
subjects, inhabitants of the plantation, and their children and posterity
born within the limits thereof, shall have and enjoy all liberties and
franchises and immunities of free denizens and natural subjects within any
other of the dominions of the crown, to all intents and purposes, as if
they had been abiding and born within the kingdom of England, or any other
dominions of the crown.3
§ 62. Some of the powers granted by this charter were alarming to many
persons, and especially those,
46 HISTORY OF THE COLONIES. [BOOK I.
1 1 Haz. Coll. 109, 110,112,113,114.
2 1 Haz. Coll. 111.
3 1 Haz. Coll. 117.
which granted a monopoly of trade.1 The efforts to settle a colony within
the territory were again renewed and again were unsuccessful.2 The spirit
of religion, however, soon effected, what the spirit of commerce had failed
to accomplish. The Puritans, persecuted at home, and groaning under the
weight of spiritual bondage, cast a longing eye towards America, as an
ultimate retreat for themselves and their children. They were encouraged
by the information, that the colonists at Plymouth were allowed to worship
their Creator according to the dictates of their consciences, without
molestation. They opened a negotiation, through the instrumentality of a
Ml White, a distinguished nonconforming minister, with the council
established at Plymouth; and in March, 1627, procured from them a grant to
Sir Henry Rosewell and others of all that part of New-England lying three
miles south of Charles river and three miles north of Merrimack river, and
extending from the Atlantic to the South Sea.3
§ 63. Other persons were soon induced to unite with them, if a charter
could be procured from the crown, which should secure to the adventurers
usual powers of government. Application was made for this purpose to King
Charles, who, accordingly, in March 1628, granted to the grantees and their
associates the most ample powers of government. The charter confirmed to
them the territory already granted by the council established at Plymouth,
to beholden of the crown,
CH. IV.] MASSACHUSETTS. 47
1 Marsh. Colon. ch. 3, p. 83; Chalm. Annals, p. 81, 83.
2 Robertson's America, B. 10; Chalm. Annals, 90.
3 These are not the descriptive words of the grant, but a statement of the
substance of it. The grant is recited in the charter in Hutchinson's
collection, p. 1, &c. and in the Colonial and Province laws of
Massachusetts, printed in 1814.
as of the royal manor of East Greenwich, "in free and common soccage, and
not in capite, nor by knight's service," yielding to the crown one fifth
part of all ore of gold and silver, &c. with the exception, however, of
any part of the territory actually possessed or inhabited by any other
Christian prince or state, or of any part of it within the bounds of the
southern colony [of Virginia] granted by King James. It also created the
associates a body politic by the name of " The Governor and Company of the
Massachusetts Bay in New-England," with the usual powers of corporations.
It provided, that the government should he administered by a governor, a
deputy governor, and eighteen assistants, from time to time elected out of
the freemen of the company, which officers should have the care of the
general business and affairs of the lands and plantations, and the
government of the people there; and it appointed the first governor, deputy
governor, and assistants by name. It further provided, that a court or
quorum for the transaction of business should consist of the governor, or
the deputy governor, and seven or more assistants, which should assemble as
often as once a month for that purpose, and also, that four great general
assemblies of the company should be held in every year. In these great and
general assemblies (which were composed of the governor, deputy,
assistants, and freemen present,) freemen were to be admitted free of the
company, officers were to be elected, and laws and ordinances for the good
and welfare of the colony made; "so as such laws and ordinances be not
contrary or repugnant to the laws and statutes of this our realm of
England." At one of these great and general assemblies held in Easter Term,
the governor, deputy, and assistants, and other officers were to be
annually chosen by the company present.
48 HISTORY OF THE COLONIES. [BOOK I.
The company were further authorized to transport any subjects or strangers
willing to become subjects of the crown to the colony, and to carry on
trade to and from it, without custom or subsidy for seven years, and were
to be free of all taxation of imports or exports to and from the English
dominion for the space of twenty one years, with the exception of a five
per cent duty. The charter further provided, that all subjects of the
crown, who should become inhabitants, and their children born there, or on
the seas going or returning, should enjoy all liberties and immunities of
free and natural subjects, as if they and every of them were born within
the realm of England. Full legislative authority was also given, subject
to the restriction of not being contrary to the laws of England, as also
for the imposition of fines and mulcts "according to the course of other
corporations in England."1 Many other provisions were added, similar in
substance to those found in the antecedent colonial charters of the crown.
§ 64. Such were the original limits of the colony of Massachusetts Bay,
and such were the powers and privileges conferred on it. It is observable,
that the whole structure of the charter presupposes the residence of the
company in England, and. the transaction of all its business there. The
experience of the past had not sufficiently instructed the adventurers,
that settlements in America could not be well governed by corporations
resident abroad;2 or if any of them had arrived at such a conclusion, there
were many reasons for presuming, that the crown would be jealous of
granting powers of so large a nature, which were to he exercised at such
CH. IV.] MASSACHUSETTS. 49
1 Hutch. Collection, page 1 to 23; 1 Haz. Coll. 239; I Chalmers's
Annals, p. 137.
2 Chalmers's Annals, 81; Robertson's Hist. Amer. B.10.
a distance, as would render any control or responsibility over them wholly
visionary. They were content therefore to get what they could, hoping,
that the future might furnish more ample opportunities for success; that
their usurpations of authority would not be closely watched; or that there
might be a silent indulgence, until the policy of the crown might feel it a
duty to yield, what it was now useless to contend for, as a dictate of
wisdom and justice.1 The charter did not include any clause providing for
the free exercise of religion or the rights of conscience, (as has been
often erroneously supposed;) and the monarch insisted upon an
administration of the oath of supremacy to every person, who should inhabit
in the colony; thus exhibiting a fixed determination to adhere to the
severe maxims of conformity so characteristic of his reign.2 The first
emigrants, however, paid no attention to this circumstance; and the very
first church planted by them was independent in all its forms, and
repudiated every connection with Episcopacy, or a liturgy.3
§ 65. But a bolder step was soon afterwards taken by the company itself.
It was ascertained, that little success would attend the plantation, so
long as its affairs were under the control of a distant government, knowing
little of its wants and insensible to its difficulties.4 Many persons,
indeed, possessed of fortune and character, warmed with religious zeal, or
suffering under religious intolerance, were ready to embark in the
enterprise, if the corporation should be removed, so that the powers of
government might be exercised by the
50 HISTORY OF THE COLONIES. [BOOK I.
1 Robertson's America, B.10; 1 Chalmers's Annals, 141.
2 Robertson's America, B.10, and note.
3 Robertson's America, B.10; 3 Hutch. Coll. 201.
4 l Chalmers's Annals, 94, 95.
actual settlers.1 The company had already become alarmed at the extent of
their own expenditures, and there were but faint hopes of any speedy
reimbursement. They entertained some doubts of the legality of the course
of transferring the charter. But at length it was determined in August,
1629, "by the general consent of the company, that the government and
patent should be settled in New-England."2 This resolution infused new life
into the association; and the next election of officers was made from among
those proprietors, who had signified an intention to remove to America.
The government and charter were accordingly removed; and henceforth the
whole management of all the affairs of the colony was confided to persons
and magistrates resident within its own bosom. The fate of the colony was
thus decided; and it grew with a rapidity and strength, that soon gave it a
great ascendancy among the New-England settlements, and awakened the
jealousy, distrust, and vigilance of the parent country.
§ 66. It has been justly remarked, that this transaction stands alone in
the history of English colonization.3 The power of the corporation to make
the transfer has been seriously doubted, and even denied.4 But the boldness
of the step is not more striking, than the silent acquiescence of the king
in permitting it to take place. The proceedings of the royal authority a
few years after sufficiently prove, that the royal acquiescence was not
intended as any admission of light. The subsequent
struggles between the crown and the colony, down to
CH. IV.] MASSACHUSETTS. 51
1 1 Hutch. Hist. 12,13; 1 Chalm. Ann. 150,151.
2 1 Hutch. Host. 13; 3 Hutch. Coll. 25, 26; Robertson's America, B.10;
Marsh. Colonies, ch. 3, p. 89; Holmes's Annals, 197; I Chalm. Annals,
3 Robertson's America,B.10.
4 See I Hutch. Hist. 410, 415; I Chalmers's Annals, 139, 141, 142, 148,
the overthrow of the charter, under the famous quo war-ranto proceedings in
1684, manifest a disposition on the part of the colonists to yield nothing,
which could be retained; and on the part of the crown to force them into
§ 67. The government of the colony immediately after the removal of the
charter was changed in many important features; but its fundamental grants
of territory, powers, and privileges were eagerly maintained in their
original validity.1 It is true, as Dr. Robertson has observed,2 that as
soon as the Massachusetts emigrants had landed on these shores, they
considered themselves for many purposes as a voluntary association,
possessing the natural rights of men to adopt that mode of government,
which was most agreeable to themselves, and to enact such laws, as were
conducive to their own welfare. They did not, indeed, surrender up their
charter, or cease to recognize its obligatory force.3 But they extended
their acts far beyond its expression of powers; and while they boldly
claimed protection from it against the royal demands and prerogatives, they
nevertheless did not feel, that it furnished any limit upon the freest
exercise of legislative, executive, or judicial functions. They did not
view it, as creating an English corporation under the narrow construction
of the common law; but as affording the means of founding a broad political
government, subject to the crown of England, but yet enjoying many
52 HISTORY OF THE COLONIES. [BOOK I.
1 1 Hutch. Hist. 25; 3 Hutch. Coll, 199, 200, 203, 205, 207.
2 Robertson's America, B. 10.,
3 3 Hutch. Coll. 199, 203.
4 1 Hutch. Hist 35, 36, 37, 410, 507, 529; 3 Hutch. Coll. 106, 199,
200, 203, 205, 207, 329, 330, 417, 418, 420, 477; I Hutch. Hist. 410,
415; 1 Chalmers's Annals, 151, 153, 157, 161; Robertson's America, B. 10;
Marsh. Hist. Colon. ch. 5. 139.
§ 68. The General Court in their address to Parliament in 1646, in answer
to the remonstrance of certain mal-contents, used the following language:1
"For our government itself, it is framed according to our charter, and the
fundamental and common laws of England, and carried on according to the
same (taking the words of eternal truth and righteousness along with them,
as that rule, by which all kingdoms and jurisdictions must render account
of every act and administration in the last day) with as bare allowance for
the disproportion between such an ancient, populous, wealthy kingdom, and
so poor an infant, thin colony, as common reason can afford." And they then
proceeded to show the truth of their statement, by drawing a parallel,
setting down in one column the fundamental and common laws and customs of
England, beginning with Magna Charta, and in a corresponding column their
own fundamental laws and customs. Among other parallels, after stating,
that the supreme authority in England is in the high court of Parliament,
they stated: "The highest authority here is in the general court both by
our charter and by our own positive laws."
§ 69. For three or four years after the removal of the charter, the
governor and assistants were chosen and all the business of the government
was transacted by the freemen assembled at large in a general court. But
the members having increased, so as to make a general assembly
inconvenient, an alteration took place, and in 1634, the towns sent
representatives to the general court. They drew up a general declaration,
that the general court alone had power to make and establish laws, and to
elect officers, to raise monies and taxes, and to
CH. IV.] MASSACHUSETTS. 53
1 1 Hutch, Hist. 145, 146; 3 Hutch. Coll. 199, &c.
sell lands; and that therefore every town might choose persons as
representatives, not exceeding two, who should have the full power and
voices of all the freemen, except in the choice of officers and
magistrates, where in every freeman was to give his own vote.1 The system,
thus proposed, was immediately established by common consent,2 although it
is nowhere provided for in the charter. and thus was formed the second
house of representatives (the first being in Virginia) in any of the
colonies.3 At first, the whole of the magistrates (or assistants) and the
representatives sat together, and acted as one body, in enacting all laws
and orders. But at legth in 1644 they separated into two distinct and
independent bodies, each of which possessed a negative upon the acts of the
other.4 This course of proceeding continued until the final dissolution of
§ 70. It may be well to state in this connection, that the council
established at Plymouth in a very short period after the grant of the
Massachusetts charter (in 1635) finally surrendered their own patent back
to the crown. They had made other grants of territory, which we shall
hereafter have occasion to notice, which had greatly diminished the value,
as well as importance of their charter. But the immediate cause of the
surrender was the odious extent of the monopolies granted to them, which
roused the attention of Parliament, and
54 HISTORY OF THE COLONIES. [BOOK I.
1 Robertson's America, B. 10; 1 Hutch. Hist. 35, 36, 203; 1 Haz. Coll.
2 Col. and Province Laws, (1814,) ch. 35, p. 97; 3 Hutch. Coll. 203,
&c.; 1 Hutch. 449.
3 1 Hutch. Hist. 35, 36, 37, 94, note, 449; 1 Holmes's Annals, 222; 1
Haz. Coll. 321, 321; 1 Chalmers's Annals, 157.
4 I Hutch. Hist. 449; 1 Chalmers's Annals, 166; Col. and Province Laws,
(1814,) ch. 31, p. 88; 3 Hutch. Coll. 205; 1 Doug. Summ. 431.
of the nation at large, and compelled them to resign, what they could
scarcely maintain against the strong current of public opinion. The
surrender, so far from working any evil, rather infused new life into the
colonies, which sprung from it, by freeing them from all restraint and
supervision by a superior power, to which they might perhaps have been held
accountable.1 Immediately after this surrender legal proceedings were
instituted against the proprietors of the Massachusetts charter. Those who
appeared were deprived of their franchises. But fortunately the measure
was not carried into complete execution against the absent proprietors
acting under the charter in America.2
§ 71. After the fall of the first colonial charter in 1684,3
Massachusetts remained for some years in a very disturbed state under the
arbitrary power of the crown. At length a new charter was in 1691 granted
to the colony by William and Mary; and it henceforth became known as a
province, and continued to act under this last charter until after the
Revolution. The charter comprehended within its territorial limits all the
old colony of the Massachusetts Bay, the colony of New Plymouth, the
Province of Maine, the territory called Acadia, or Nova Scotia, and all the
lands lying between Nova Scotia and Maine; and incorporated the whole into
one Province by the name of the Province of the Massachusetts Bay in
New-England, to be holden as of the royal manor of East Greenwich, in the
county of Kent. It confirmed all prior grants made of lands to all
CH. IV.] MASSACHUSETTS. 55
1 1 Holmes's Annals, 227; 1 Haz. Coll. 390, 393; I Chalmers's Annals,
94, 95, 99.
2 1 Holmes's Annals, 227; 3 Hutch Coll. 101, 104; 1 Haz. Coll. 423,
425; I Chalmers's Annals, 161.
3 1 Holmes's Annals, 412.
corporations, colleges, towns, villages, and schools. It reserved to the
crown the appointment of the Governor, and Lieut. Governor, and Secretary
of the province, and all the officers of the Court of Admiralty. It
provided for the appointment annually of twenty-eight Counselors, who were
to be chosen by the General Court, and nominated the first board. The
Governor and Counsellors were to hold a council for the ordering and
directing of the affairs of the Province. The Governor was invested with
the right of nominating and with the advice of the council of appointing
all military officers, and all sheriffs, provosts, marshals, and justices of
the peace, and other officers of courts of justice. He had also the power
of calling the General Court, and of adjourning, proroguing, and dissolving
it. He had also a negative upon all laws passed by the General Court. The
General Court was to assemble annually on the last Wednesday of May, and
was to consist of the Governor and Council for the time being, and of such
representatives being freeholders as should be annually elected by the
freeholders in each town, who possessed a freehold of forty shillings
annual value, or other estate to the value of forty pounds. Each town was
entitled to two representatives; but the General Court was from time to
time to decide on the number, which each town should send. The General
Court was invested with full authority to erect courts, to levy taxes, and
make all wholesome laws and ordinances, "so as the same be not repugnant or
contrary to the laws of England;" and to settle annually all civil
officers, whose appointment was not otherwise provided for all laws,
however, were to be sent to England for approbation or disallowance; and if
disallowed, and so signified under the sign manual and signet, within three
56 HISTORY OF THE COLONIES. [BOOK I.
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 in chief 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
Lieut. 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
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.
CH. IV.] MASSACHUSETTS. 57
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.1
§ 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 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."2 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.3 All conveyances were to be by deed acknowledged and
recorded in the public records.4 All lands and hereditaments were declared
free from all fines and forfeitures. Courts of law were established, and
local processes provided for.5 The trial by jury in civil and criminal
cases as secured.6 Wager at law was not allowed but ac-
58 HISTORY OF THE COLONIES. [BOOK I.
1 1 Hutch. Hist. 415,416.
2 3 Hutch. Coll. 201
3 Ant. Col. and Prov. Laws, ch. 4, p. 44: ch. 104. p. 204.
4 Ant. Col. and Prov. Laws, ch. 1, p. 41; ch. 28, p. 85; 1 Hutch.
5 3 Hutch. Coll. 203. 205.
6 1 Hutch. 450; 3 Hutch. Coll. 203, 205.
cording 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."1 Treason, murder, poisoning, arson,
witchcraft, sodomy, idolatry, blasphemy, manstealing, adultery, false
witness, conspiracy and rebellion, cursing, smiting of parents-by children,
being a stubborn or rebellious son, burglary, and rape (in particular
circumstances) were offenses punishable with death.2 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, " we read otherwise in the Scriptures;"3 and many
other crimes of a heinous nature were suffered to pass with a moderate
punishment.4 Hutchinson has well observed, that "in punishing offenses they
professed to be governed by the judicial laws of Moses, but no further than
those laws were of a moral nature."5 Marriages were celebrated exclusively
by magistrates during the first charter; though afterwards there was a
concurrent power given to the clergy.6 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
CH. IV.] MASSACHUSETTS 59
1 3 Hutch. Coll. 205.
2 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.
3 3 Hutch. Coll. 205.
4 1 Hutch. Hist. 442,443,444; Ant. Col. and Prov. Laws ch. 17, p. 56.
5 1 Hutch. Hist. 435,439.
6 I Hutch. Hist. 444.
granted. Female adultery was a sufficient cause; but male adultery not.1
In tenderness to the marriage state, a man, who struck his wife, or a woman
her husband, was liable to a fine.2
§ 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.3 and the daughters, where there were
no sons, inheriting as coparceners, unless the court otherwise should
determine.4 If the party died insolvent, his estate was distributed among
all his creditors, there not being any preference of any debts by judgment
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,"6 when in
reality he had only a doubleportion, and the estate was partible among all
the children. Their lands being, by the charter held, as of the manor of
East Greenwich, in free and common soccage, they attributed to it the
gavelkind quality of
60 HISTORY OF THE COLONIES. [BOOK I.
1 1 Hutch. Hist. 445.
2 1 Hutch. Hist. 445.
3 I Hutch. Hist. 446.
4 Ant. Col. and Prov. Laws, ch. 101, p. 205.
5 1 Hutch. Hist. 446.
6 3 Hutch. Coll. 207; 1 Hutch Coll. 447; Ant. Col. and Prov. Laws,
ch. 104, p. 205.
not being forfeited for felony or treason; and the convict might therefore,
even after sentence, dispose of it by will.1 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.2
§ 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.3 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 offenses, and " the liberty
to see the peace, ordinances, and rules of Christ observed."4
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."5 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 con-
CH. IV.] MASSACHUSETTS. 61
1 1 Hutch. Hist. 447.
2 1 Hutch. Hist. 447.
3 3 Hutch. Collect. 201; Ant.Colon. and Prov. Laws, ch.39, p.100; 1
Haz. Coll. 488.
4 Ant. Col. and Prov. Laws, ch. 30, p. 100, 101.
5 1 Hutch. Hist. 420, 421, 422, 423, 424, 434; 1 Belk. New Hamp. ch.4,
demning 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.1 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.2 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."3
§ 75. But the most striking as well as the most important part 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,4 " 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
62 HISTORY OF THE COLONIES. [BOOK I.
1 Robertson's America. B.10; 1 Belk. New-Hamp. ch.4, p.70 to 77; Ant.
Col. and Prov. Laws, ch. 57, p. 120, &e.; 3 Hutch. Coll. 215, 216; l
Hutch. Hist. 431; 3 Hutch. Hist. 42;1 Haz. Coll. 538; 1 Chalmers's
Annals, 163, 164, 165, 169, 189, 190, 191, 194.
2 l Hutch. Hist. 427; Ant. Col. and Prov. Laws, ch. 39, p. 103, 104.
3 I Hutch. Hist. 431.
4 Ant. Col. and Prov. Laws, ch. 88, p. 186.
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.1 A habeas
corpus act was also passed at the same session; but it seems to have been
disallowed by the crown.2 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.3
§ 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
religious intolerance was in some measure checked, if not entirely subdued.
Among the earliest acts of
CH. IV.] MASSACHUSETTS 63
1 2 Hutch. Hist. 64, Ant. Col. and Prov. Laws, ch. 2, p. 214.
2 2 Hutch. Hist. 64.
3 1 Chalm. Annals, 56, 74.
the provincial legislature, which were approved, were an act for the
prevention of frauds and perjuries, conformable to that of Charles the
Second; an act for the observance of the Lord's day; an act for solemnizing
marriages by a minister or a justice of the peace; an act for the support
of ministers and schoolmasters; an act for regulating towns and counties;
and an act for the settlement and distribution of the estates of persons
dying intestate.1 These and many other acts of general utility have
continued substantially in force down to our day. Under the act for the
distribution of estates the half blood were permitted to inherit equally
with the whole blood.2 Entails were preserved and passed according to the
course of descents of the common law; but the general policy of the state
silently reduced the actual creation of such estates to comparatively
1 2 Hutch. Hist. 65, 66.
2 2 Hutch. Hist. 66.