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 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 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. [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. [15]



§ 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 law.



________________________



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

subjects. [4]



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. 404, 408.



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, 414, 419.



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.