34 HISTORY OF THE COLONIES. [BOOK I.
CHAPTER III.
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
___________________________________
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.
CH. Ill.] SETTLEMENT OF NEW-ENGLAND. 35
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 thedogmatists; 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.1 The papist
and the
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1. 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.* 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 subjects.+
___________________________________
* The whole passage deserves commendation for its catholic
spirit. Robertson's America, B.10.
+ Mackintosh's dissertation on the Progress of Ethical
Philisophy, (Phila. 1832,) p.36.
36 HISTORY OF THE COLONIES. [BOOK I.
perlate, 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.1 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.2 After remaining there
___________________________________
1. Robertson's America, B.10; I Belknap's
New-Hampshire, ch. 3; l Chalm. Annnls, p.143, 145, 169, 189, 190,
191; 3 Hutch. Hist.42.
2. Belknap's New-Hampshire, ch. 3; 1 Doug. Summ. 369.
CH. III.] SETTLEMENT OF NEW-ENGLAND. 37
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.1 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.2
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;3 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; hut
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
___________________________________
1. Morton's Mem. 1 to 30.
2. Robertson's America, B. 10; Marsh. Amer. Col. ch. 3, p. 79,
80; Morton's Mem. 31 to 35. 3 I Haz.Coll. 87, 88; Morton's Mem.
App. 373.
38 HISTORY OF THE COLONIES. [BOOK I.
example of it in primitive and almost patriarchal simplicity.
§ 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.1 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.2
Four others were soon afterwards added, and finally the number
was in-
___________________________________
1. 1 Haz. Coll. 119; Morton's Mem. 37; Marsh.
Colon. ch. 3, p. 80; Robertson's America, B.10; 2 Hutch. Hist.
455.
2. Plymouth Laws, (1685); I Haz. Coll. 404, 408.
CH. III.] SETTLEMENT OF NEW-ENGLAND. 39
creased to seven.1 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.2 The number of settlements having increased, and being at a considerable distance from each other, a house of representatives was established in 1639;3 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.4
§ 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 1620.5 This patent,
besides a grant of the territory upon the terms and tenure of the
original patent of 1620,
___________________________________
1 .Morton's Mem. 110; Prince's Annals, 225; 2
Hutch. Hist. 463, 465; 1 Haz. Coll. 404, 408, 411, 412.
2. Robertson's America, B. 10; 2 Hutch. Hist. 467; I Haz. Coll.
408, 411, 412,114.
3. 2 Hutch. Hist. 463.
4. Robertson's America, B. 10; 2 Hutch. Hist. 462, 463, 464;
Hubbard's Hist. ch. 10, p. 62; Chalmers's Annals, p. 88. 5. 2
Hutch. Hist. 464, 479; 1 Haz. Collec. 298, 404, 468; 1 Chalm.
Annals, 97, 98; 1 Holmes' Annals, 201.
40 HISTORY OF THE COLONIES. [BOOK I.
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." 1
§ 57. This patent or charter seems never to have been confirmed by the crown;2 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.3
§ 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
___________________________________
1. 1 Haz. Coll. 298, 404.
2. Chalmers says,(l 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.
3. Marsh. Hist. Colon. ch. 3, p 82; I Chalm. Annals, 87, 88, 97.
CH. III.] PLYMOUTH COLONY LAWS. 41
scruple as to their right to inflict capital punishments.1 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 1691.2
§ 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,3 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
___________________________________
1. 2 Hutch. Hist. 464, 465, 467; Chalm.
Annals, 88.
2. Hutch. Hist. 479, 480; Chalm. Annals, 97, 98.
3. In 1636. See 1 Haz.Coll. 404, 408; Id. 178, Plymouth Colony
Laws (edit. 1685;) 1 Haz. Coll. 411, 414, 419.
42 HISTORY OF THE COLONIES. [BOOK I.
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.1
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, ________________________
1. 1 Haz Coll. 473; Plymouth Col. Laws,
(1688,) p. 16.
CH. III.] PLYMOUTH COLONY LAWS. 43
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.1
§ 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 law. ___________________________________
1. More ample information upon all these
subjects will be furnished by an examination of the Plymouth
Colony Laws, first printed in 1685.