CHAPTER X.

LEGISLATION OF THE COLONY.

DIFFICULTIES WITH ENGLAND.

X.

THE civil history of every country is profoundly inter- CHAP. esting, as a development of the progress of mind in the sublime science of government; and State and National laws are criteria of that progress, discovering, to the philosophic observer, the different steps by which, as virtue and intelligence increase, communities advance to higher and still higher degrees of freedom and improvement. Especially has the jurisprudence of the Massachusetts Commonwealth peculiar claims upon our attention, as unfolding the principles and policy of the founders of that Commonwealth. The Charter of Charles I. was the cherished palladium of their rights; its broad seal was the sanction of the authority which was exercised; and it was the intention of the grantees, under its provisions, to frame their laws, so far as practicable, in harmony with the laws of the land of their birth.

With the Puritans, however, religion was the basis of civil as well as of ecclesiastical government. "The Lord is our Judge, the Lord is our Lawgiver, the Lord is our King," was practically their motto;1 and, planting themselves upon the position that, "when a commonwealth hath liberty to mould his own frame, the Scripture hath given full direction for the ordering of the same, and that in such sort as may best maintain the euexia of the church," they “fashioned the hangings to the house, and not the house to the hangings," and held that it was "better the common

268

X.

A PURITAN COMMUNITY ESTABLISHED.

CHAP. Wealth be fashioned to the setting forth of God's house, which is his church, than to accommodate the church frame to the civil estate.1

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True, the faith of our fathers in the five points of Calvinism, was much firmer than their faith in the five points of a strong government: "an hereditary monarchy, an order of nobility, an established church, a standing army, and a military police;-yet there was an intimate intertexture of Church and State in their government; though the church, with them, was not, as in England, subordinate to the government, the dependent creature of the secular power; the government, on the contrary, was rather subordinate to the church, and was moulded to secure the being and the welfare of the church. 2 Hence, in our investigations into the civil policy of the colony, we shall find the principles of the Puritans lying at the basis of all their legislation; and many things, which have been often regarded as inexplicable, or for which they have been severely and bitterly reproached, were chiefly the result of the circumstances in which they were placed; and the opinions which they had adopted.

By the terms of their charter, the lands they held were deemed exclusively their own; and they claimed the right to receive or exclude strangers at their own discretion. "If we here be a corporation," said they, "established by free consent; if the place of our cohabitation be our own; then no man hath right to come in to us without our consent." Hence, intending to build up an exclusively PuriSept. 7, tan community, one of their earliest acts was, to provide that no person should plant at any place within the limits. of the patent, without leave from the Governor and Assist

1630.

1 Cotton's Way, 27, and Letter, in Hutchinson, 1. 437; Johnson, in 2 M. H. Coll., 4. 27; Oakes's Election

Sermon, 1673; Bacon's Hist. Disc., 18, 25.

2

Higginson's Election Sermon, 1663, p. 19.

LIMITATION OF THE ELECTIVE FRANCHISE.

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May 17,

1637.

ants, or the major part of them. And by a still more CHAP. stringent regulation, at a later date an order was passed prohibiting the harboring of persons whose religious views were considered "dangerous," or the letting to such a lot or house, without the permission of one of the standing Council, or two of the Assistants.2 This statute was zealously opposed by Sir Henry Vane; but Governor Winthrop, in his reply, says: "The intent of the law is to preserve the welfare of the body; and for this end to have none received into any fellowship with us who are likely to disturb the same, and this intent, I am sure, is lawful and good." Thus was thrown up the first bastion of defense.

3

1631.

The second soon followed. As no terms of admission to the Company were prescribed by the charter, the colonists held in their own hands the key to their asylum; and it was accordingly ordered, "to the end the body of the com- May 18, mons may be preserved of honest and good men, that, for the time to come, no man shall be admitted to the freedom of this body politic, but such as are members of some of the churches of the same.' This was indeed a singular law, copied by the New Haven Colony, and virtually for a time by that at Rhode Island; and it continued substantially in force until 1692, being repealed in appearance only after the restoration of Charles II. It was condemned by Roger Williams, in his controversy with the magistrates; and Episcopalians complained that, under its operations, liberty was jeopardized, and justice defeated.?

6

1 Mass. Rec's., 1. 76; Johnson, W. W. Prov., in 2 M. H. Coll., 7, ch. 22; Winthrop, in Hutch. Coll., 68; Chalmers, Ann., 678. Several of the Towns adopted similar regulations. See Frothingham's Chas'n., Felt's Salem, &c., &c.

2 Mass. Rec's., 1. 196, 228; Winthrop, 1. 267.

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1631.

CHURCH MEMBERS ALONE ENTITLED TO VOTE.

CHAP. And if it is regarded solely as a measure for the promotion of piety, there can be no doubt that it must be pronounced an unfortunate mistake; for piety cannot be promoted by making it the basis of civil or political distinctions. But we apprehend the true reason of this law has been generally overlooked. It was more a political regulation than a sectarian scruple. Not to bestow honors or privileges on piety was it passed, but to guard liberty,-to prevent encroachments upon their infant commonwealth. 1 The Puritans of Massachusetts recognized no rights founded upon Asiatic or European notions of indelible hereditary excellence; no distinctions based exclusively upon or wealth; yet necessarily, for a time, they were compelled to adopt the policy which excluded them from the Anglican Church, and erected a commonwealth of chosen people in covenant with God, in which the humblest freeholder, if sound in faith, possessed a power as great, in the election of magistrates and the enactment of laws, as a peer of the realm, or the proudest lord spiritual in the land of their birth.

talent

It may possibly be true that there were evils connected with this policy. It vested undue power in the clergy and the church. It established a practical oligarchy of select religious votaries. It debarred from the exercise of the elective franchise all, however honest, who were unwilling to conform to the standard of colonial orthodoxy. But at the same time, we doubt whether, in an age of so general exclusiveness, when all large bodies of Christians were more or less intolerant, and each was struggling for the ascendancy, and for temporal dominion, and only isolated, individual minds, were acting on a broader plane; we doubt whether a different policy could have been safely adopted, without subjecting the colonists to what they

* Cotton, in Hutchinson, 1. 437; Davenport, in Bacon's Disc., 33.

OATH OF ALLEGIANCE.

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would have regarded as the greatest of all evils, — the CHAP. intrusion of a body of men inimical to their views, whose aim would have been to subvert their church and destroy their government.

1634.

One other law remained to be enacted to complete their circumvallation. "Upon intelligence of some Episcopal and malignant practices against the country," an oath was framed, to be administered to every male resident Apr. 1 twenty years old and upwards, not a freeman, acknowledging subjection to the colonial government, and promising obedience and conformity to the same. The design of this law is obvious. It was to secure the allegiance of all not entitled to the immunities of citizenship.1

Three laws like the foregoing, would probably be now regarded as eminently restrictive, exclusive and oppressive. But it must not be inferred from this that they were never of any service. On the contrary, to our minds, the course of the Puritans was at least as wise as that of the English Church. It was not a retaliatory, but a defensive policy which was adopted here; and the laws being necessarily temporary, as the colony grew in strength and wisdom, and as its own circumstances, and the circumstances of the English Church changed, they were abrogated in course.2

The frame of the government of the colony was fixed by the charter. By its terms, the principal officers were to be chosen directly by the freemen; but, as no rule was given how they should be elected, it was ruled that the Oct. 19, freemen should choose the Assistants, and the Assistants from among themselves the Governor and Deputy. This change, however, which established an elective aristocracy, with no limitation of the tenure of office, was too anti

1 Mass. Rec's., 1. 115, 117, 137; Winthrop, 1. 152; Cotton's Tenet Washed, 4, 28-9; Felt's Ipswich, 20, &c.

23 M. H. Coll., 3. 399; N. Am. Rev., 44. 521–2.

Mass. Rec's., 1. 79.

1630.