B. NEW ENGLAND TO 1660 (continued 3)

[In Cotton's personal letter to Lord Say and Sele and Lord Brooke (Hutchinson's Massachusetts Bay (1765), App. III), a fuller statement as to some features of Massachusetts practice and theory is given. The English lords evidently objected to the restriction of citizenship to church members. They wanted less of theocracy and more of aristocracy. Cotton defends the middle course of the colony as follows:

... "Your Lordships advertisement touching the civill state of this colony, as they doe breath forth your singular wisdome, and faithfulness, and tender care of the peace, so wee have noe reason to misinterprite, or undervalue your Lordships eyther directions or intentions therein. I know noe man under heaven (I speake in Gods feare without flattery) whose counsell I should rather depend upon, for the wise administration of a civill state according to God, than upon your Lordship, and such confidence have I (not in you) but in the Lords presence in Christ with you, that I should never feare to betrust a greater commonwealth than this (as much as in us lyeth) under such a perpetuâ dictaturâ as your Lordship should prescribe. For I nothing doubt, but that eyther your Lordship would prescibe all things according to the rule, or be willing to examine againe, and againe, all things according to it. ... It is very suitable to Gods all-sufficient wisdome, and to the fulnes and perfection of Holy Scriptures, not only to prescribe perfect rules for the right ordering of a private mans soule to everlasting blessednes with himselfe, but also for the right ordering of a mans family, yea, of the commonwealth too, so farre as both of them are subordinate to spiritual ends, and yet avoide both the churches usurpation upon civill jurisdictions ... and the commonwealths invasion upon ecclesiasticall administrations ... Gods institutions (such as the government of church and of commonwealth may be) may be close and compact, and coördinate one with another, and yet not confounded. God hath so framed the state of church government and ordinances, that they may be compatible to any common-wealth, though never so much disordered in his frame. But yet when a commonwealth hath liberty to mould his owne frame ... I conceyve the scripture hath given full direction for the right ordering of the same. ... Mr. Hooker doth often quote a saying out of Mr. Cartwright (though I have not read it in him) that noe man fashioneth his house to his hangings, but his hangings to his house. It is better that the commonwealth be fashioned to the setting forth of Gods house, which is his church: than to accommodate the church frame to the civill state. Democracy, I do not conceyve that ever God did ordeyne as a fitt government eyther for church or commonwealth. If the people be governors, who shall be governed? As for monarchy, and aristocracy, they are both of them clearely approoved, and directed in scripture, yet so as referreth the soveraigntie to himselfe, and setteth up Theocracy in both, as the best forme of government in the commonwealth as well as in the church.

"The law, which your Lordship instanceth in [that none shall be chosen to magistracy among us but a church member] was made and enacted before I came into the country; but I have hitherto wanted sufficient light to plead against it. ... Your Lordship's feare that this will bring in papal excommunication, is just, and pious: but let your Lordship be pleased againe to consider whether the consequence be necessary....

"When your Lordship doubteth that this corse will draw all things under the determination of the church ... (seeing the church is to determine who shall be members, and none but a member may have to doe in the government of a commonwealth) be pleased (I pray you) to conceyve, that magistrates are neyther chosen to office in the church. ... Nor neede your Lordship feare (which yet I speake with submission to your Lordships better judgment) that this corse will lay such a foundation, as nothing but a mere democracy can be built upon it. Bodine confesseth, that though it be status popularis, where a people choose their owne governors, yet the government is not a democracy, if it be administered, not by the people, but by the governors, whether one (for then it is a monarchy, though elective) or by many, for then (as you know) it is aristocracy. ... Mean while two of the principall of [the requirements of the Lords], the generall cort hath already condescended unto. 1. In establishing a standing councell, who, during their lives, should assist the governor in managing the chiefest affayres of this little state. They have chosen, for the present, onely two (Mr. Winthrope and Mr. Dudley) nor willing to choose more, till they see what further better choyse the Lord will send over to them, that so they may keep an open doore for such desireable gentlemen as your Lordship mentioneth. 2. They have graunted the governor and assistants a negative voyce, and reserved to the freemen the like liberty also." ...]

b. Social Legislation, October 14, 1651

Records of Massachusetts Colony, IV, Pt. I, pages 60-61.

... "though we acknowledge it to be a matter of much difficultie, in regard of the blindnes of mens mindes and the stubbornes of their willes, to sett downe exact rules to confine all sorts of persons, yett wee cannot but account it our duty ... to declare our utter detestation ... that men or weomen of meane condition should take uppon them the garbe of gentlemen, by wearing gold or silver lace or buttons, or points at their knees, or to walk in great bootes, or weomen of the same rancke to weare silke or tiffany hoodes or scarfes, which though allowable to persons of greater estates or more liberall education, yett we cannot but judge it intollerable in persons of such like condition: it is therefore ordered by this Courte ... that no person ... whose visible estates ... shall not exceed ... two hundred pounds, shall weare any gold or silver lace [etc.] uppon the penaltie of tenn shillings for every such offence, and every such delinquent to be presented by the graund jury," [with long and detailed provisions for enforcement].

76. Some Relations with England, 1638

a. Attack upon the Massachusetts Charter

Thomas Hutchinson's Collection of Original Papers (1769), 105-106.

This is the last of several demands for the return of the charter between the years 1634 and 1638. Winthrop refers to it as "a very strict order." For the reasons why the colony "thought it safe" to disregard the order, and for the earlier history, cf. American History and Government, § 61.

A Coppie of a Letter sent by the appointment of the Lords of the Council to Mr. Winthrop, for the Patent of this Plantation to be sent to them.

At Whitehall April 4th 1638. Present,

Lord Archbishop of Canterbury

Lord Keeper

Lord Treasurer

Lord Privy Seale

Earle Marshall

Earle of Dorset

Earle of Holland

Lord Cottington

Mr. Treasurer

Mr. Controuler

Mr. Secretary Cooke

Mr. Secretary Windebank

This day the Lords Commissioners for foreign Plantations, taking into consideration that the petitions and complaints of his Majestys subjects, planters and traders in New-England, grow more frequent than heretofore for want of a settled and orderly government in those parts, and calling to mind that they had formerly given order about two or three years since to Mr. Cradock a member of that plantation, to cause the grant or letters patent of that plantation (alleadged by him to be there remaining in the hands of Mr. Winthrop) to be sent over hither, and that notwithstanding the same, the said letters patent were not as yet brought over: And their Lordships being now informed by Mr. Attorney General that a Quo Warranto had been by him brought according to former order against the said patent, and the same was proceeded to judgment against so many as had appeared, and that they which had not appeared, were outlawed.

Their lordships well approving of Mr. Attorney's care and proceeding therein did now resolve and order, that Mr. Meawtis, clerk of the council attendant upon the said commissioners for foreign plantations, should in a letter from himselfe to Mr. Winthrop inclose and convey this order unto him. And their Lordships hereby in his Majestys name, and according to his express will and pleasure, strictly require and enjoine the said Winthrop or any other in whose power and custody the said letters patent are, that they fail not to transmit the said patent hither by the returne of the ship in which the order is conveyed to them, it being resolved that in case of any further neglect or contempt by them shewed therein, their lordships will cause a strict course to be taken against them, and will move his Majesty to reassume into his hands the whole plantation.

b. The Refusal of the Colony

Hutchinson's Massachusetts Bay (1765), App. V. See introductory matter to a, above.

An Addresse of the General Court To the Right Honourable the Lords Commissioners for foreigne Plantations [September 6/16, 1638]

The humble Petition of the Inhabitants of the Massachusets in New England, of the Generall Court there assembled, the 6th day of September, in the 14th yeare of the Reigne of our Soveraigne Lord King CHARLES.

Whereas it hath pleased your Lordships, by order of the 4th of April last, to require our patent to be sent unto you, wee do hereby humbly and sincerely professe, that wee are ready to yield all due obedience to our soveraigne Lord, the King's majesty, and to your Lordships under him, and in this minde wee left our native countrie, and according thereunto, hath been our practice ever since, so as wee are much grieved, that your Lordships should call in our patent, there being no cause knowne to us, nor any delinquency or fault of ours expressed in the order sent to us for that purpose, our government being according to his Majestyes grant, and wee not answerable for any defects in other plantations, etc.

This is what his Majesties subjects here doe believe and professe, and thereupon wee are all humble suitors to your Lordships, that you will be pleased to take into further consideration our condition, and to affoord us the liberty of subjects, that we may know what is layd to our charge; and have leaive and time to answer for ourselves before we be condemned as a people unworthy of his Majesties favour or protection; as for the quo warranto mentioned in the said order, wee doe assure your Lordships wee were never called to answer to it, and if wee had, wee doubt not but wee have a sufficient plea to put in.

It is not unknowne to your Lordships, that we came into these remote parts with his Majesties licence and encouragement, under his great seale of England, and in the confidence wee had of that assurance, wee have transported our families and estates, and here have wee built and planted, to the great enlargement and securing of his Majesties dominions in these parts, so as if our patent should now be taken from us, we shall be looked on as runnigadoes and outlawed, and shall be enforced, either to remove to some other place, or to returne into our native country againe; either of which will put us to unsupportable extremities, and these evils (among others) will necessarily follow: (1.) Many thousand souls will be exposed to ruine, being layd open to the injuries of all men. (2.) If wee be forced to desert this place, the rest of the plantations (being too weake to subsist alone) will, for the most part, dissolve and goe with us, and then will this whole country fall into the hands of the French or Dutch, who would speedily imbrace such an opportunity. (3.) If we should loose all our labour and costs, and be deprived of those liberties which his Majesty hath granted us, and nothing layd to our charge, nor any fayling to be found in us in point of allegiance (which all our countrymen doe take notice of and will justify our faithfulness in this behalfe) it will discourage all men heereafter from the like undertakings upon confidence of his Majestyes royal grant. Lastly, if our patent be taken from us (whereby wee suppose wee may clayme interest in his Majestyes favour and protection) the common people here will conseive that his Majesty hath cast them off, and that, heereby, they are freed from their allegiance and subjection, and, thereupon, will be ready to confederate themselves under a new government, for their necessary safety and subsistance, which will be of dangerous example to other plantations, and perillous to ourselves of incurring his Majestyes displeasure, which, wee would by all means avoyd.[62]

Upon these considerations wee are bold to renew our humble supplications to your Lordships, that wee may be suffered to live here in this wilderness, and that this poore plantation, which hath found more favour from God than many others, may not finde lesse favour from your Lordships [so] that our liberties should be restreyned, when others are enlarged, that the doore should be kept shutt unto us, while it stands open to all other plantations, that men of ability should be debarred from us, while they give incouragement to other colonies.

77. Democratic Discontent, 1639

(Winthrop's Denial of the Right of Petition; Abolition of the Life Council; Delay in the Written Code)

Winthrop's History of New England.

May 22, 1639. The court of elections was: at which time there was a small eclipse of the sun. Mr. Winthrop was chosen governour again, though some laboring had been, by some of the elders and others, to have changed, not out of any dislike of him (for they all loved and esteemed him), but out of their fear lest it might make way for having a governour for life, which some had propounded as most agreeable to God's institution and the practice of all well-ordered states. But neither the governour nor any other attempted the thing; though some jealousies arose, which were increased by two occasions. The first was, there being want of assistants, the governour and other magistrates thought fit (in the warrant for the court) to propound three, amongst which Mr. Downing, the governour's brother-in-law, was one, which they conceived to be done to strengthen his party, and therefore, though he were known to be a very able man, etc., and one who had done many good offices for the country for these ten years, yet the people would not choose him. Another occasion of their jealousy was, the court, finding the number of deputies to be much increased by the addition of new plantations, thought fit, for the ease both of the country and the court, to reduce all towns to two deputies. This occasioned some to fear, that the magistrates intended to make themselves stronger, and the deputies weaker, and so, in time, to bring all power into the hands of the magistrates; so as the people in some towns were much displeased with their deputies for yielding to such an order. Whereupon, at the next session, it was propounded to have the number of deputies, restored; and allegations were made, that it was an infringement of their liberty; so as, after much debate, and such reasons given for diminishing the number of deputies, and clearly proved that their liberty consisted not in the number, but in the thing, divers of the deputies, who came with intent to reverse the last order, were, by force of reason, brought to uphold it; so that, when it was put to the vote, the last order for two deputies only was confirmed. Yet, the next day, a petition was brought to the court from the freemen of Roxbury, to have the third deputy restored. Whereupon the reasons of the court's proceedings were set down in writing, and all objections answered, and sent to such towns as were unsatisfied with this advice, that, if any could take away those reasons, or bring us better for what they did desire, we should be ready, at the next court, to repeal the said order.

The hands of some of the elders (learned and godly men) were to this petition, though suddenly drawn in, and without due consideration. For the lawfulness of it may well be questioned: for when the people have chosen men to be their rulers, and to make their laws, and bound themselves by oath to submit thereto, now to combine together (a lesser part of them) in a public petition to have any order repealed, which is not repugnant to the law of God, savors of resisting an ordinance of God; for the people, having deputed others, have no power to make or alter laws, but are to be subject; and if any such order seem unlawful or inconvenient, they were better prefer some reasons, etc., to the court, with manifestation of their desire to move them to a review, than peremptorily to petition to have it repealed, which amounts to a plain reproof of those whom God hath set over them, and putting dishonor upon them, against the tenor of the fifth commandment.

There fell out at this court another occasion of increasing the people's jealousy of their magistrates, viz.: One of the elders, being present with those of his church, when they were to prepare their votes for the election, declared his judgment, that a governour ought to be for his life, alleging for his authority the practice of all the best commonwealths in Europe, and especially that of Israel by God's own ordinance. But this was opposed by some other of the elders with much zeal, and so notice was taken of it by the people, not as a matter of dispute, but as if there had been some plot to put it in practice.

June 9, 1639 ... The people had long desired a body of laws, and thought their condition very unsafe, while so much power rested in the discretion of magistrates. Divers attempts had been made at former courts, and the matter referred to some of the magistrates and some of the elders; but still it came to no effect; for, being committed to the care of many, whatsoever was done by some, was still disliked or neglected by others. ... Two great reasons there were, which caused most of the magistrates and some of the elders not to be very forward in this matter. One was, want of sufficient experience of the nature and disposition of the people, considered with the condition of the country and other circumstances, which made them conceive, that such laws would be fittest for us, which should arise pro re nata upon occasions, etc., and so the laws of England and other states grew (and therefore the fundamental laws of England are called customs, consuetudines). 2. For that it would professedly transgress the limits of our charter, which provide, we shall make no laws repugnant to the laws of England, and that we were assured we must do. But to raise up laws by practice and custom had been no transgression; as in our church discipline, and in matters of marriage, to make a law, that marriages should not be solemnized by ministers, is repugnant to the laws of England: but to bring it to a custom by practice for the magistrates to perform it, is no law made repugnant, etc. At length (to satisfy the people) it proceeded ...[63]

November, 1639. Some of the freemen, without the consent of the magistrates or governour, had chosen Mr. Nathaniel Ward to preach at this court, pretending that it was a part of their liberty. The governour (whose right indeed it is, for till the court be assembled the freemen are but private persons) would not strive about it, for though it did not belong to them, yet if they would have it, there was reason to yield it to them. ... In his sermon he delivered many useful things, but in a moral and political discourse, grounding his propositions much upon the old Roman and Grecian governments, which sure is an error, for if religion and the word of God makes men wiser than their neighbors, and these times have the advantage of all that have gone before us in experience and observation, it is probable that by all these helps, we may better frame rules of government for ourselves than to receive others upon the bare authority of the wisdom, justice, etc. of those heathen commonwealths. Among other things, he advised the people to keep all their magistrates in an equal rank, and not give more honor or power to one than to another, which is easier to advise than to prove, seeing it is against the practice of Israel (where some were rulers of thousands, and some but of tens) and of all nations known or recorded. Another advice he gave, that magistrates should not give private advice, and take knowledge of any man's cause before it came to public hearing. This was debated after in the general court, where some of the deputies moved to have it ordered. [Successfully resisted by the magistrates.]

[Wood's sermon shows that he regarded himself as put forward to champion democratic doctrine: cf. Cotton's sermons for the magistrates, noted in former entries. An entry of Winthrop's, dated May 10, 1643, shows a continuance of this democratic purpose.

"Our court of elections was held, when Mr. Ezekiel Rogers, pastor of the church in Rowley, preached. He was called to it by a company of freemen, whereof the most were deputies chosen for the court. ... Mr. Rogers, hearing that exception was taken to this call, as unwarrantable, wrote to the governour for advice, etc., who returned him answer: That he did account his calling not to be sufficient, yet the magistrates were not minded to strive with the deputies about it, but seeing it was noised in the country, and the people would expect him, and that he had advised with the magistrates about it, he wished him to go on. In his sermon he described how the man ought to be qualified whom they should choose for their governour, yet dissuaded them earnestly from choosing the same man twice together, and expressed his dislike of that with such vehemency as gave offence. But when it came to trial, the former governour, Mr. Winthrop, was chosen again."]

78. The Body of Liberties, 1641

Whitmore's Bibliographical Sketch of the Laws of the Massachusetts Colony gives the text in facsimile.

For the history and significance, see American History and Government, § 81. Cf. also No. 77, above. The starred numbers each contain some important advance upon English custom or law of the day, and italic type is used to call attention to provisions that especially justify the name, Body of Liberties.

A Coppie of the Liberties of the Massachusets Collonie in New England

The free fruition of such liberties, Immunities, and priveledges, as humanitie, Civilitie, and Christianitie call for as due to every man in his place and proportion, without impeachment and Infringement, hath ever bene and ever will be the tranquillitie and Stabilitie of Churches and Commonwealths. And the deniall or deprivall thereof, the disturbance if not the ruine of both....

Wee doe therefore this day religiously and unanimously decree and confirme these following Rites, liberties, and priveledges concerneing our Churches and Civill State, to be respectively impartiallie and inviolably enjoyed and observed throughout our Jurisdiction for ever.

1. No mans life shall be taken away, no mans honour or good name shall be stayned, no mans person shall be arested, restrayned, banished, dismembred, nor any wayes punished, no man shall be deprived of his wife or children, no mans goods or estaite shall be taken away from him, nor any way indammaged under Coulor of law, or Countenance of Authoritie, unlesse it be by vertue or equitie of some expresse law of the Country warranting the same, established by a generall Court and sufficiently published, or, in case of the defect of a law in any partecular case, by the word of god. And in Capitall cases, or in cases concerning dismembring or banishment, according to that word to be judged by the Generall Court.

*2. Every person within this Jurisdiction, whether Inhabitant or forreiner shall enjoy the same justice and law, that is generall for the plantation, which we constitute and execute one towards another, without partialitie or delay.

5. No man shall be compelled to any publique worke or service unlesse the presse be grounded upon some act of the generall Court, and [he] have reasonable allowance therefore.

8. No mans Cattell or good of what kinde soever shall be pressed or taken for any publique use or service, unlesse it be by warrant grounded upon some act of the generall Court, nor without such reasonable prices and hire as the ordinarie rates of the Countrie do afford....

*9. No monopolies shall be granted or allowed amongst us, but of such new Inventions that are profitable to the Countrie, and that for a short time.

*10. All our lands and heritages shall be free from all fines and licences upon Alienations, and from all hariotts, wardships, Liveries, Primerseisens, yeare day and wast, Escheates, and forfeitures, upon the deaths of parents, or Ancestors, be they naturall, casuall, or Juditiall.

*11. All persons which are of the age of 21 yeares, and of right understanding and meamories, whether [even if] excommunicate or condemned shall have full power and libertie to make there wills and testaments, and other lawfull alienations of theire lands and estates.

12. Every man whether Inhabitant or fforreiner, free or not free shall have libertie to come to any publique Court, Councell or Towne meeting, and either by speech or writeing to move any lawfull, seasonable, and materiall question, or to present any necessary motion, complaint, petition, Bill or information, whereof that meeting hath proper cognizance, so it be done in convenient time, due order, and respective manner.

16. Every Inhabitant that is an howse holder shall have free fishing and fowling in any great ponds and Bayes, Coves and Rivers, so farre as the sea ebbes and flowes within the presincts of the towne where they dwell, unless the free men of the same Towne or the Generall Court have otherwise appropriated them, provided that this shall not be extended to give leave to any man to come upon others proprietie without there leave.

*17. Every man of or within this Jurisdiction shall have free libertie, not with standing any Civill power, to remove both himselfe and his familie at their pleasure out of the same, provided there be no legall impediment to the contrarie.

Rites Rules and Liberties concerning Juditiall proceedings

18. No mans person shall be restrained or imprisoned by any Authority what so ever, before the law hath sentenced him thereto, if he can put in sufficient securitie, bayle, or mainprise, for his appearance, and good behaviour in the meane time, unlesse it be in Crimes Capitall, and Contempts in open Court, and in such cases where some expresse act of Court doth allow it.

19. If in a generall Court any miscariage shall be amongst the Assistants when they are by themselves that may deserve an Admonition or fine under 20 sh, it shall be examined and sentenced amongst themselves, If amongst the Deputies when they are by themselves, It shall be examined and sentenced amongst themselves, If it be when the whole Court is togeather, it shall be judged by the whole Court, and not severallie as before.[64]

*25. No Summons pleading Judgement, or any kinde of proceeding in Court or course of Justice shall be abated, arested, or reversed, upon any kinde of cercumstantiall errors or mistakes, if the person and cause be rightly understood and intended by the Court.

29. In all Actions at law it shall be the libertie of the plantife and defendant by mutual consent to choose whether they will be tryed by the Bench or by a Jurie, unlesse it be where the law upon just reason hath otherwise determined. The like libertie shall be granted to all persons in Criminall cases.

30. It shall be in the libertie both of plantife and defendant, and likewise every delinquent (to be judged by a Jurie) to challenge any of the Jurors. And if his challenge be found just and reasonable by the Bench,[65] or the rest of the Jurie, as the challenger shall choose, it shall be allowed him....

34. If any man shall be proved and Judged a commen Barrator vexing others with unjust frequent and endlesse suites, It shall be in the power of Courts both to denie him the benefit of the law, and to punish him for his Barratry.

36. It shall be in the libertie of every man ... sentenced in any cause in any Inferior Court, to make their Appeale to the Court of Assistants, provided they tender their appeale and put in securitie to prosecute it before the Court be ended wherein they were condemned, and within six dayes next ensuing put in good securitie before some Assistant to satisfie what his Adversarie shall recover against him; And if the cause be of a Criminall nature, for his good behaviour and appearance. And everie man shall have libertie to complaine to the Generall Court of any Injustice done him in any Court of Assistants or other.

40. No Conveyance, Deede, or promise what so ever shall be of validitie, If it be gotten by Illegal violence, imprisonment, threatenings, or any kinde of forcible compulsion called Dures.

41. Everie man that is to Answere for any Criminall cause, whether he be in prison or under bayle, his cause shall be heard and determined at the next Court that hath proper Cognizance thereof, And [i.e., if it] may be done without prejudice of Justice.

42. No man shall be twise sentenced by Civill Justice for one and the same Crime, offence, or Trespasse.

43. No man shall be beaten with above 40 stripes, nor shall any true gentleman, nor any man equall to a gentleman be punished with whipping,[66] unles his crime be very shamefull, and his course of life vitious and profligate.

*44. No man condemned to dye shall be put to death within fower dayes next after his condemnation, unles the Court see spetiall cause to the contrary, or in case of martiall law; nor shall the body of any man so put to death be unburied 12 howers, unlesse it be in case of Anatomie.

45. No man shall be forced by Torture to confesse any Crime against himselfe nor any other unlesse it be in some Capitall case where he is first fullie convicted by cleare and suffitient evidence to be guilty, After which, if the cause be of that nature That it is very apparent there be other conspiratours, or confederates with him, Then he may be tortured, yet not with such Tortures as be Barbarous and inhumane.

46. For bodilie punishments we allow amongst us none that are inhumane, Barbarous, or cruell.[67]

47. No man shall be put to death without the testimony of two or three witnesses, or that which is equivalent there unto.

49. No free man shall be compelled to serve upon Juries above two Courts in a yeare, except grand Jurie men, who shall hould two Courts together at the least.

*50. All Jurors shall be chosen continuallie by the freemen of the Towne where they dwell.

54. When so ever anything is to be put to vote, any sentence to be pronounced, or any other matter to be proposed, or read in any Court or Assembly, If the president or moderator thereof shall refuse to performe it, the Major parte of the members of that Court or Assembly shall have power to appoint any other meete man of them to do it, And, if there be just cause, to punish him that should and would not.[68]

57. When so ever any person shall come to any very suddaine untimely and unnaturall death, Some Assistant, or the Constables of that Towne shall forthwith summon a Jury of twelve free men to inquire of the cause and manner of their death, and shall present a true verdict thereof to some neere Assistant, or the next Court to be helde for that Towne upon their oath.[69]

Liberties more peculiarlie concerning the free men

58. Civill Authorie hath power and libertie to see the peace, ordinances and Rules of Christ observed in every church according to his word, so it be done in a Civill and not in an Ecclesiastical way.

60. No church censure shall degrade or depose any man from any Civill dignitie, office, or Authoritie he shall have in the Commonwealth.

62. Any Shire or Towne shall have libertie to choose their Deputies whom and where they please for the General Court, So be it they be free men, and have taken there oath of fealtie, and [be] Inhabiting in this Jurisdiction.

66. The Freeman of everie Township shall have power to make such by laws and constitutions as may concerne the wellfare of their Towne, provided they be not of a Criminall, but onely of a prudentiall nature, And that their penalties exceede not 20 sh. for one offence. And that they be not repugnant to the publique laws and orders of the Countrie. And if any Inhabitant shall neglect or refuse to observe them, they shall have power to levy the appointed penalties by distresse.[70]

68. It is the libertie of the freemen to choose such deputies for the Generall Court out of themselves, either in their owne Townes or elsewhere as they judge fitest. And because we cannot forsee what varietie and weight of occasions may fall into future consideration, and what counsells we may stand in neede of, we decree: That the Deputies (to attende the Generall Court in the behalfe of the Countrie) shall not any time be stated or inacted, but from Court to Court, or at the most but for one yeare,—that the Countrie may have an Annuall libertie to do in that case what is most behoofefull for the best welfaire thereof.

69. No Generall Court shall be desolved or adjourned without the consent of the Major parte thereof.[71]

70. All Freemen called to give any advise, vote, verdict, or sentence in any Court, Counsell, or Civill Assembly, shall have full freedome to doe it according to their true Judgements and Consciences, So it be done orderly and inofensively for the manner.

74. The freemen of every Towne or Towneship, shall have full power to choose yearly or for lesse time out of themselves a convenient number of fitt men to order the planting or prudentiall occasions of that Towne, according to Instructions given them in writeing, Provided nothing be done by them contrary to the publique laws and orders of the Countrie, provided also the number of such select persons be not above nine.[72]

Liberties of Woemen

*79. If any man at his death shall not leave his wife a competent portion of his estaite, upon just complaint made to the Generall Court, she shall be relieved.

*80. Everie marryed woeman shall be free from bodilie correction or stripes by her husband, unlesse it be in his owne defence upon her assalt. If there be any just cause of correction complaint shall be made to Authoritie assembled in some Court, from which onely she shall receive it.

Liberties of Children

81. When parents dye intestate, the Elder sonne shall have a doble portion of his whole estate reall and personall, unlesse the Generall Court upon just cause alleadged shall Judge otherwise.

83. When parents dye intestate, having noe heires males of their bodies, their Daughters shall inherit as Copartners, unles the Generall Court upon just reason shall judge otherwise.

83. If any parents shall wilfullie and unreasonably deny any childe timely or convenient mariage, or shall exercise any unnaturall severitie towards them, Such children shall have free libertie to complain to Authoritie for redresse.

84. No Orphan dureing their minoritie which was not committed to tuition or service by the parents in their life time, shall afterwards be absolutely disposed of by any kindred, friend, Executor, Towneship, or Church, nor by themselves, without the consent of some Court, wherein two Assistants at least shall be present.

Liberties of Servants

87. If any man smite out the eye or tooth of his man servant, or maid servant, or otherwise mayme or much disfigure him, unlesse it be by meere casualtie, he shall let them goe free from his service.[73] And shall have such further recompense as the Court shall allow him.

88. Servants that have served deligentlie and faithfully to the benefitt of their maisters seaven yeares, shall not be sent away emptie. And if any have bene unfaithfull, negligent or unprofitable in their service, notwithstanding the good usage of their maisters, they shall not be dismissed till they have made satisfaction according to the Judgement of Authoritie.

Liberties of Forreiners and Strangers

91. There shall never be any bond slaverie villinage or Captivitie amongst us,[74] unles it be lawfull Captives taken in just warres, and such strangers as willingly selle themselves or are sold to us. And these shall have all the liberties and Christian usages which the law of god established in Israell concerning such persons doeth morally require. This exempts none from servitude who shall be Judged thereto by Authoritie.

Off [of] the Bruite Creature

92. No man shall exercise any Tirranny or Crueltie towards any bruite Creature which are usuallie kept for mans use.

*93. If any man shall have occasion to leade or drive Cattel from place to place that is far of, So that they be weary, or hungry, or fall sick, or lambe, It shall be lawful to rest or refresh them, for a competent time, in any open place that is not Corne, meadow, or inclosed for some peculiar use.

94. Capitall Laws

1

Dut. 13. 6. 10 Dut. 17. 2. 6 Ex. 22. 20

If any man after legall conviction shall have or worship any other god, but the lord god, he shall be put to death.

2

Ex. 22. 18. Lev. 20. 27. Dut. 18. 10.

If any man or woeman be a witch, (that is hath or consulteth with a familiar spirit,) They shall be put to death.

3

Lev. 24. 15. 16

If any person shall Blaspheme the name of god, the father, Sonne or Holie ghost, with direct, expresse, presumptuous or high handed blashemie, or shall curse god in the like manner, he shall be put to death.

4

Ex. 21. 12. Numb. 35. 13. 14. 30. 31.

If any person comitt any wilfull murther, which is manslaughter, comitted upon premeditated mallice, hatred, or Crueltie, not in a mans necessarie and just defence, nor by meere casualtie against his will, he shall be put to death.

5

Numb. 25. 20. 21. Lev. 24. 17.

If any person slayeth an other suddainely, in his anger or Crueltie of passion, he shall be put to death.

6

Ex. 21. 14.

If any person shall slay an other through guile, either by poysoning or other such divelish practice, he shall be put to death.

10

Ex. 21. 16.

If any man stealeth a man or mankinde, he shall surely be put to death.

11

Dut. 19. 16. 18. 19.

If any man rise up by false witnes, wittingly and of purpose to take away any man's life, he shall be put to death.

12

If any man shall conspire and attempt any invasion, insurrection, or publique rebellion against our commonwealth, or shall indeavour to surprize any Towne or Townes, fort or forts therein, or shall treacherously and perfediouslie attempt the alteration and subversion of our frame of politie or Government fundamentallie, he shall be put to death.

95. A declaration of the Liberties the Lord Jesus hath given to the Churches

1. All the people of god within this Jurisdiction who are not in a church way, and be orthodox in Judgement, and not scandalous in life, shall have full libertie to gather themselves into a Church Estaite. Provided they doe it in a Christian way, with due observation of the rules of Christ revealed in his word.

2. Every Church hath full libertie to exercise all the ordinances of god, according to the rules of Scripture.

3. Every Church hath free libertie of Election and ordination of all their officers from time to time, provided they be able, pious and orthodox.

4. Every Church hath free libertie of Admission, Recommendation, Dismission, and Expulsion, or deposall of their officers, and members, upon due cause, with free exercise of the Discipline and Censure of Christ according to the rules of his word.

10. Wee allowe private meetings for edification in religion amongst Christians of all sortes of people. So it be without just offence both for number, time, place, and other cercumstances.

98. Lastly because our dutie and desire is to do nothing suddainlie which fundamentally concerne us, we decree that these rites and liberties, shall be Audably read and deliberately weighed at every Generall Court that shall be held, within three yeares next insueing, And such of them as shall not be altered or repealed they shall stand so ratified, That no man shall infringe them without due punishment.

And if any Generall Court within these next thre yeares shall faile or forget to reade and consider them as abovesaid. The Governor and Deputie Governor for the time being, and every Assistant present at such Courts shall forfeite 20 sh. a man, and everie Deputie 10 sh. a man for each neglect, which shall be paid out of their proper estate, and not by the Country or the Townes which choose them. And when so ever there shall arise any question in any Court amonge the Assistants and Associates thereof about the explanation of these Rites and liberties, The Generall Court onely shall have power to interprett them.

79. A Puritan View of Trade

Winthrop's History of New England.

November, 1639. At a general court holden at Boston, a great complaint was made of the oppression used in the country in sale of foreign commodities; and Mr. Robert Keaine, who kept a shop in Boston, was notoriously above others observed and complained of; and, being convented, he was charged with many particulars; in some, for taking above sixpence in the shilling profit; in some, eight pence; and, in some small things, above two for one; and being hereof convict, (as appears by the records,) he was fined £ 200, which came thus to pass: The deputies considered, apart, of his fine, and set it at £ 200; the magistrates agreed but to £ 100. So, the court being, divided, at length it was agreed, that his fine should be £ 200, but he should pay but £ 100, and the other should be respited to the further consideration of the next general court. By this means the magistrates and deputies were brought to an accord, which otherwise had not been likely, and so much trouble might have grown, and the offender escaped censure. For the cry of the country was so great against oppression,...

And sure the course was very evil, especial circumstances considered: 1. He being an ancient professor of the gospel: 2. A man of eminent parts ... 4. Having come over for consciences sake...

These things gave occasion to Mr. Cotton, in his public exercise the next lecture day, to lay open the error of ... false principles, and to give some rules of direction in the case.

Some false principles were these:—

1. That a man might sell as dear as he can, and buy as cheap as he can.

2. If a man lose by casualty of sea, etc., in some of his commodities, he may raise the price of the rest.

3. That he may sell as he bought, though he paid too dear, etc., and though the commodity be fallen, etc.

4. That, as a man may take the advantage of his own skill or ability, so he may of another's ignorance or necessity.

5. Where one gives time for payment, he is to take like recompense of one as of another.

The rules for trading were these:—

1. A man may not sell above the current price, i. e., such a price as is usual in the time and place, and as another (who knows the worth of the commodity) would give for it, if he had occasion to use it...

2. When a man loseth in his commodity for want of skill, ... he must look at it as his own fault or cross, and therefore must not lay it upon another.

3. Where a man loseth by casualty of sea, ... it is a loss cast upon himself by providence, and he may not ease himself of it by casting it upon another; for so a man should seem to provide against all providences, that he should never lose; but where there is a scarcity of the commodity, there men may raise their price; for now it is a hand of God upon the commodity, and not the person.

80. The Separation of the Legislature into Two Houses

Winthrop's History of New England. Cf. American History and Government, §§ 69, 70.

June 4, 1642. ... At the same general court there fell out a great business upon a very small occasion. Anno 1636, there was a stray sow in Boston, which was brought to Captain Keayne: he had it cried divers times, and divers came to see it, but none made claim to it for near a year. He kept it in his yard with a sow of his own. Afterwards one Sherman's wife, having lost such a sow, laid claim to it, but came not to see it, till Captain Keayne had killed his own sow. After being showed the stray sow, and finding it to have other marks than she had claimed her sow by, she gave out that he had killed her sow. The noise hereof being spread about the town, the matter was brought before the elders of the church as a case of offence; many witnesses were examined, and Captain Keayne was cleared. [The case was then brought before the county court],—when, upon a full hearing, Capt. Keayne was again cleared, and the jury gave him £ 3 for his costs. [Keayne then recovers £ 20 damages for slander.] Story [friend of "Sherman's wife"[75]], upon this, searcheth town and country to find matter against Captain Keayne ... and got one of his witnesses to come into Salem court and to confess there that he had foresworn himself [in the former trial]; and upon this he petitions in Sherman's name to this general court to have the cause heard again; which was granted, and the best part of seven days were spent in examining witnesses and debating of the [case]. And yet it was not determined; for there being nine magistrates and thirty deputies, no sentence could by law pass without the greater number of both, which neither [side] had; for there were for the plaintiff two magistrates and fifteen deputies, and for the defendant [Keayne] seven magistrates and eight deputies....

There was great expectation in the country, by occasion of Story's clamours against him, that the cause would have passed against the captain, but falling out otherwise, gave occasion to many to speak unreverently of the court, especially of the magistrates, and the report went, that their negative voice had hindered the course of justice, and that these magistrates must be put out, that the power of the negative voice might be taken away.

June 12, 1643. ... The sow business not being yet digested in the country [even Bellingham, ex-governor, urging a new trial without a negative voice for the magistrates,—Winthrop gives over three pages here to a review of the controversy. Then follows:]

The sow business had started another question about the magistrates' negative vote in the general court. The deputies generally were very earnest to have it taken away; whereupon one of the magistrates [Winthrop?] wrote a small treatise, wherein he laid down the original of it from the patent, and the establishing of it by order of the general court in 1634, showing thereby how it was fundamental to our government, which, if it were taken away, would be a mere democracy. He showed also the necessity and usefulness of it by many arguments from scripture, reason, and common practice, etc. Yet this would not satisfy, but the deputies and common people would have it taken away; and yet it was apparent (as some of the deputies themselves confessed) the more did not understand it. An answer also was written (by one of the magistrates as was conceived) to the said treatise, undertaking to avoid all the arguments both from the patent and from the order, etc. This the deputies made great use of in this court, supposing they had now enough to carry the cause clearly with them, so as they pressed earnestly to have it presently determined. But the magistrates told them the matter was of great concernment, even to the very frame of our government; it had been established upon serious consultation and consent of all the elders; it had been continued without any inconvenience or apparent mischief these fourteen years; therefore it would not be safe nor of good report to alter on such a sudden, and without the advice of the elders: offering withal, that if upon such advice and consideration it should appear to be inconvenient, or not warranted by the patent and the said order, etc., they should be ready to join with them in taking it away. Upon these propositions they were stilled, and so an order was drawn up to this effect, that it was desired that every member of the court would take advice, etc., and that it should be no offence for any, either publicly or privately, to declare their opinion in the case, so it were modestly, etc., and that the elders should be desired to give their advice before the next meeting of this court. It was the magistrates' only care to gain time, that so the people's heat might be abated, for then they knew they would hear reason, and that the advice of the elders might be interposed;...

... One of the elders [Winthrop himself] also wrote a small treatise wherein he handled the question, laying down the several forms of government, both simple and mixt, and the true form of our government, and the unavoidable change into a democracy if the negative voice were taken away....

March, 1644. ... At the same court in the first month, upon the motion of the deputies, it was ordered that the court should be divided in their consultations, the magistrates by themselves and the deputies by themselves. What the one agreed upon, they should send to the other; and if both agreed, then to pass, etc. This order determined the great contention about the negative voice.

[The Records of the Governor and Company of Massachusetts Bay (II, 58-59) give this act which established the first two-chambered legislature in America (An Act of the Generall Court at Boston, March 7/17, 1644). The preamble contains an interesting reference to English precedent:—

"For as much as after long experience wee find divers inconveniences in the manner of our proceeding in Courts, by Magistrates and deputies siting together, and accounting it wisdome to follow the laudable practice of other states who have layd groundworks for government and order in the issuing of busines of greatest and highest consequence, ..."

See also an interesting prophecy of the change to two Houses in Cotton's letter, No. 75 a, above.]

81. A Town Code of School Law

Dorchester Town Records, 54-57. Cf. American History and Government, § 123.

Upon a generall and lawfull warning of all the Inhabitants the 14th of the 1st moneth 1645 these rules and orders following presented to the Towne Concerning the Schoole of Dorchester are Confirmed by the major parte of the Inhabitants then present.

First, It is ordered that three able, and sufficient men of the Plantation shalbe Chosen to bee wardens or overseers of the Schoole above mentioned who shall have the Charge oversight and ordering thereof and of all things Concerneing the same in such manner as is hereafter expressed and shall Continue in their office and place for Terme of their lives respectively, unlesse by reason of any of them removing his habitation out of the Towne, or for any other weightie reason the Inhabitants shall see cause to Elect or Chuse others in their roome in which cases and upon the death of any of the sayd wardens the Inhabitants shall make a new Election and choice of others.

And Mr. Haward, Deacon Wiswall, Mr. Atherton are elected to bee the first wardens or overseers.

Secondly, the said Wardens shall have full power to dispose of the Schoole stock....

Thirdly, the sayd Wardens shall take care, and doe there utmost and best endeavor that the sayd Schoole may from tyme to tyme bee supplied with an able and sufficient Schoolemaster who nevertheless is not to be admitted into the place of Schoolemaster without the Generall consent of the Inhabitants or the major parte of them....

Fivethly, the sayd wardens shall from tyme to tyme see that the Schoole howse bee kept in good, and sufficient repayre, the Charge of which reparacion shalbe defrayed and payd out of such rents, Issues and profitts of the Schoole stock, if there be sufficient, or else of such rents as shall arise and grow in time of the vacancy of the Schoolemaster—if there bee any such and in defect of such vacancy the wardens shall repayre to the 7 men of the Towne for the tyme beeing who shall have power to taxe the Towne with such somme, or sommes as shalbe requisite for the repayring of the Schoole howse as aforesayd.

Sixthly, the sayd Wardens shall take Care that every yeere at or before the end of the 9th moneth their bee brought to the Schoolehowse 12 sufficient Cart, or wayne loads of wood for fewell, to be for the use of the Schoole master and the Schollers in winter the Cost and Chargs of which sayd wood to bee borne by the Schollers for the tyme beeing who shalbe taxed for the purpose at the discretion of the sayd Wardens.

Lastly, the sayd Wardens shall take care that the Schoolemaster for the tyme beeing doe faythfully performe his dutye in his place, as schoolmasters ought to doe, as well in other things as in these in which are hereafter expressed, viz.

First, that the Schoolemaster shall diligently attend his Schoole and doe his utmost indeavor for Benefitting his Schollers according to his best discretion without unnecessaryly absenting himself to the prejudice of his schollers, and hindering there learning.

2ly, that from the beginning of the first moneth [March] untill the end of the 7th he shall every day begin to teach at seaven of the Clock in the morning and dismisse his schollers at fyve in the afternoone. And for the other five moneths that is from the beginning of the 8th moneth untill the end of the 12th moneth he shall every day begin at 8th of the Clock in the morning and [end] at 4 in the afternoone.

3ly, every day in the yeare the usual tyme of dismissing at noone shall be at 11 and to beginn agayne at one except that

4ly, every second day in the weeke he shall call his schollers togeither betweene 12 and one of the Clock to examin them what they have learned on the saboath day preceding at which tyme also he shall take notice of any misdemeanor or disorder that any of his skollers shall have Committed on the saboath to the end that at somme convenient tyme due Admonition and Correction may bee admistred by him according as the nature, and qualitie of the offence shall require at which sayd examination any of the elders or other Inhabitants that please may bee present to behold his religious care herein and to give there Countenance, and approbation of the same.

5ly, hee shall equally and impartially receive and instruct such as shalbe sent and Comitted to him for that end whither their parents bee poore or rich not refusing any who have Right and Interest in the Schoole.

6ly, such as shalbe Comitted to him he shall diligently instruct as they shalbe able to learne both in humane learning, and good literature and likewise in poynt of good manners, and dutifull behaviour towards all specially their superiors as they shall have ocasion to bee in their presence whether by meeting them in the streete or otherwise.

7ly, every 6 day of the weeke at 2 of the Clock in the afternoone hee shall Chatechise his schollers in the principles of Christian religion either in somme Chatechism which the Wardens shall provide and present, or in defect thereof in some other.

8ly, And because all mans indeavors without the blessing of God must needs bee fruitlesse and unsucessfull theirfore It is to be a cheif part of the schoolemasters religious care to Commend his schollers and his labours amongst them unto God by prayer, morning and evening, taking Care that his schollers doe reverendly attend during the same.

9ly, And because the Rodd of Correction is an ordinance of God necessary sometymes to bee dispenced unto Children but such as may easily be abused by overmuch severity and rigour on the one hand, or by overmuch indulgence and lenitye on the other. It is therefere ordered and agreed that the schoolemaster for the tyme beeing shall have full power to minister Correction to all or any of his schollers without respect of persons according as the nature and qualitie of the offence shall require, whereto all his schollers must bee duely subject and no parent or other of the Inhabitants shall hinder or goe about to hinder the master therein. Neverthelesse if any parent or others shall think their is just cause of Complaynt agaynst the master for to much severity, such shall have liberty freindly and lovingly to expostulate with the master about the same, and if they shall not attayne to satisfaction the matter is then to bee referred to the wardens who shall impartially judge betwixt the master and such Complaynants. And if it shall appeare to them that any parent shall make causelesse Complaynts agaynst the master in this behalf and shall persist and Continue so doeing in such case the wardens shall have power to discharge the master of the care and Charge of the Children of such parents....

And because it is difficult if not Impossible to give particular rules that shall reach all cases which may fall out, therefore for a Conclusion It is ordered, and agreed, in Generall, that where particular rules are wanting there It shalbe a parte of the office and dutye of the Wardens to order and dispose of all things that Concerne the schoole, in such sort as in their wisedom and discretion they shall Judge most Conducible for the glory of God, and the trayning up of the Children of the Towne in religion, learning and Civilitie, and these orders to be Continued till the major parte of the Towne shall see cause to alter any parte thereof.[76]

82. Colonial School Laws

a. Compulsory Education, 1642

Records of the Governor and Company of Massachusetts Bay, II, 6-7.

[A General Court, May, 1642.][77]

This Court, taking into consideration the great neglect of many parents and masters in training up their children in learning and Labor and other impl[o]yments which may be proffitable to the common wealth, do hereupon order and decree, that in every towne the chosen men appointed for managing the prudentiall affayers of the same shall henceforth stand charged with the care of the redresse of this evill (so as they shalbee sufficiently punished by fines for the neglect thereof, upon presentment of the grand jury or other information or complaint in any Court ...) And for this end they ... shall have power to take account from time to time of all parents and masters, and of their children, concerning their calling and impl[o]yment of their children, especially of their ability to read and understand the principles of religion and the capitall lawes of this country, and to impose fines upon such as shall refuse to render such accounts to them ... and they shall have power, with consent of any Court ... to put forth [as] apprentices the children of such as they shall [find] not to be able and fitt to imploy and bring them up....

[Connecticut copied this law in 1642, and New Haven in 1644. The Connecticut preamble, like the one above, emphasizes the civic motive: "For as much as the good education of children is of singular behoof and benefit to any commonwealth ... it is therefore ordered," etc. Connecticut, too, was more specific as to the exact penalty for delinquent parents,—providing fines for the first two offenses, but the removal and apprenticing of the children for continued delinquency.

The Massachusetts law closed with a lengthy provision for elementary industrial training, the select men to provide materials and see that "children sett to keep cattle be set to some other imployment withall, as spinning ... knitting, weaving tape, etc."

Plainly, this law of 1642 assumed that each town had a school. The next law (b below) expressly provides such schools.]

b. A state System of Schools

Records of Governor and Company of Massachusetts Bay, II, 203

Att a Sesion of the Generall Court, the 27th of the 8th Month, 1647, at Boston

... It being one cheife project of that ould deluder, Satan, to keepe men from the knowledge of the Scriptures, as in former times by keeping them in an unknowne tongue, so in these latter times by persuading from the use of tongues (that so at least the true sence and meaning of the originall might be clouded by false glosses of saint-seming deceivers),—that learning may not be buried in the grave of our fathers in the church and commonwealth, the Lord assisting our endeavors,—

It is therefore ordered ... that every towneship in this jurisdiction, after the Lord hath increased them to the number of 50 householders, shall then forthwith appoint one within their towne to teach all such children as shall resort to him to write and reade,—whose wages shall be paid either by the parents or masters of such children, or by the inhabitants in generall, by way of supply [tax], as the major part of those that order the prudentialls of the towne shall appoint: provided, those that send their children be not oppressed by paying much more than they can have them taught for in other townes. And it is further ordered, that where any towne shall increase to the number of 100 families or househoulders, they shall set up a grammer schoole, the mr. thereof being able to instruct youth so farr as they may be fited for the university, provided that if any towne neglect the performance hereof above one yeare, that such towne shall pay 5 pounds to the next schoole, till they shall performe this order.

[The punctuation of this noble sentence has been somewhat classified here by the use of parentheses, dashes, and colons for the commas of the original. On this legislation, cf. American History and Government, § 123. The "university" was Harvard, which had been founded in 1636. The greater part of this law was adopted two years later in Connecticut.]

83. Representative Town Records

(Extracts from the Watertown Records for the years 1634-1678)

Watertown was the second town to set up town government. (Cf. (1), below, with No. 72, above.) The complete records of these years 1634-1678 would fill 250 pages of this volume. Note the greater illiteracy from about 1650 on, and cf. American History and Government, § 122.

(1) August 23, 1634. Agreed by the consent of the Freemen, that there shall be Chosen three persons to be [for] the ordering of the civill affaires in the Towne [One of them to serve as "Towne Clark"]; and [he] shall keep the Records and Acts of the Towne. The three chosen are...

(2)—ember 13. Agreed, by the Consent of the Freemen that Robert Seeley and Abram Browne shall measure and lay out all the Lotts that are granted.

Agreed that no man shall fell or cutt down any timber trees upon the Common, without the consent of Robert Seeley and Abram Browne, and otherwise to pay to the Towne for every tree 5s.

(3) January 3, 1635. Agreed that no man being foreigner ... coming out of England or some other Plantation, shall have liberty to sett downe amongst us, unless he first have the Consent of the Freemen of the Towne.

(4) Feb. 21, 1635. Agreed by the freemen that whosoever hath a Lott in a generall Inclosure shall fence it with the rest according to proportion, and if he shall refuse, the Lott shall returne to the Towne againe....

Agreed, that the towne Clark shall have six pense for every Lott of land that he shall Inroll in the towne Booke and bring the Party a note under his hand of the situation of it.[78]

(5) August 22, 1635. Agreed that whosoever being an Inhabitant in the Towne shall receive any person, or family upon their propriety that may prove chargeable to the Towne shall maintaine the said persons at their owne charges, to save the Towne harmeles.

(6) September 23, 1635. Agreed that (whereas there is a dayly abuse in felling of Timber upon the Common) whosoever shall offend in felling any Trees without leave, shall pay for every Tree cut downe without order, 20 shillings to the use of the Towne.

(7) November 14, 1635. ... Agreed that John Warrin and Abram Browne shall lay out all the Highwaies, and to see that they be sufficiently repaired.

(8)—ember 30, 1635. Agreed by the Consent of the Freemen that these 11 freemen shall order all the Civill Affaires for the Towne for this yeare following, and to divide the Lands.[79]...

(9) [1636] January 29. Ordered, that there shalbe 8 dayes appointed every yeare for the repayring of the Highwaies and every man that is Souldier or watchman to come at his appointed time with a wheelbarrow, mattock, spade or shovle, and for default hereof to pay for every day 5 shillings to the Towne, and a Cart for every day to pay 19 shillings.

(10) Aprill 23, 1638. Ordered that those Freemen of the Congregation shall build and dwell upon their Lotts at the Towne plott, and not to alienate them by selling or exchanging them to any forrainer, but to Freemen of the Congregation, It being our reall intent to sitt down there close togither, and therefore these Lotts were granted to those Freemen that inhabited most remote from the meeting-house and dwell most scattered,...

(11) 1639. D. 31, (Mo. 10.)[80] Ordered that if any of the Freemen be absent from any Publick Towne meeting at the time appointed sufficient warning being formerly given, he shall forfett for every time to the Towne 2 shillings, 6 d.

Ordered by the Freemen that the men deputed for to order the Civill affaires shall not make any order without consent of 7 of those Freemen chosen.

(12) D. 21, (M. 2.) 1640. Ordered that if any Person shall suffer his Dog to come to the Meeting upon the Lords day he shall forfett for every time 1 s.

(13) D. 29, (M. 10.) 1640. Ordered that all those Inhabitants that have beene by Common Consent or vote taken in amongst us, or have had Dividents granted to them shalbe accepted for Townesmen, and no others.

(14) D. 21, (M. 7.) 1641. Ordered that George Munnings is appointed to looke to the Meetinghouse, and to be free from Rates [in return for service].

(15) D. 5, (M. 5.) 1642. Ordered that Hugh Mason, Thomas Hastings, and John Shearman are appointed to set up a sufficient fence about the Burying Place with a 5-foot pale and 2 railes well nailed by the 15 of the 2 moneth, and the Towne to pay them for it.

(16) D. 6, (M. 5) 1642. Ordered that there shalbe a new Invoice taken of Mens Estates to make the Rates[81] by for this yeare. Also that all Lands granted by the Towne shalbe rated this yeare.

Ordered that Land broken up shall pay the Acre, 2 lb 10s

Land inclosed not broken up the Acre, 10s

The further Plaine shall pay upon the Acre, 5s

The dividents, the remote meddows and the hither Plaine, 10s

The land in lieu of the Towne Plott the Acre, 1s

The Farmes shall pay upon the Acre, 6d

The home meddows shall pay the Acre, 1 lb 10s

Ordered that Mares, Steeres, and Cowes are rated at 5 lb

Heifers, 2 year old, at 3 lb

Calves, 1 year old, at 1 lb 10s

Calves, under a year, at 1 lb

Goats, at 10s

Sheep, at 2 lb

Hogs, a year old, at 1 lb

Pigs, 3 months old, at 6s 8d

Colts, at 17s 6d

Lambs, at 5s

Kids, at 2s 8d

(17) D. 20, (M. 10) 1642. Ordered that there shalbe a Rate made of 100 lb for to discharge these Debts following:

Imprimis to Thomas Hastings for charges to the Poore and building the house for John Kettle 17 lb

Item, to John Simson 10s

Item, for fencing the Burying place 6 lb 10s

Item, formerly due to the Officers 30 lb

Item, for the Capitall Laws 10s

Item, for the Court Orders, 3 M 1642 11s 3d

Item, to John Knolls pastor for 1 quarter 10 lb

Item, to George Phillips pastor for half yeare due Jan. 1 33 lb 6s 8d

(18) D. 15, (M. 6.) 1643. Ordered that John Shearman shall keepe weights and measures according to the Order of the Court for the Townes use and also to take up lost goods.

(19) [Nov. 15, 1647]. Lieu. Mason complayninge that he was burdened with the service of the Towne; the Towne did Release him: and chose Isaac Steearnes in his steade, to be one of the Seaven men.

(20) At A Generall Towne Meeting, the 17 (7) 1649. Granted to the Ministry—160 pounds—for this present year beginning the 24th of June last: to be gathered by Rate, and to be paied the one halfe the first weeke of December next, and the other halfe the first of march Following agreed that there shall be a Rate of 90 pounds made for to pay Robert Saltonstall: and to Build a Schoole-house: and to Build a gallery in the Meetinghouse and to pay other debts the Towne oweth....

John Sherman is apointed to procuere the Schoole house Built: and to have it built 22 foot long and 14 foot wide and 9 foot betwene Joynts—also to git a penn of one aker of ground fenced in with 4 Railes for the lodging a heard in the woods: and to procuer a small house for lodging the heardsman: and to be done in such a place as Deacon Child and himself shall thinke best, towards Sudbury Bounds

(21) the 7d.—10 mo 1649 ... agreed that John Sherman Shall wright a letter, in the Townes name, unto David Mechell of Stamfourth to Certify to him the Townes desier of him to Come and keepe School in the towne

(22) At a Meeteing of the Select men at Sargeng [Seargent] Beeres the 10 December 1652.

Agreed by the towne, with the Consent of John Sherman that Willyam Barsham shall prise all the Carpenters worke aboute the scoolehouse and the Towne shall make payment akcording to his award.

Memorandum There is 22 pounds towards it payd alredy.

(23) December 22, 1652...

Mr. Norcros is to keepe ascoole upon the same pay and the same building as he had the last yeeare.

James Cuttler and John Traine are Chosen Survayers for high wayes for this yeare.

John Sherman did present a plot of the great dividents the 22/9/1653

(24) At a Meeteing of the Select men the 8 (9) 1653. ... Ordered that the Cunstable Thomas underwood shall reserve in his hand of the Towne Rate 13 bushells of Indian Corne and 3 booshells of peaze for Thomas philpot and Deliver him every weeke one peck of Corne and every month one peck of peaze.

[These commodities had been paid into the town treasury (as taxes), and were to be reserved by the "treasurer" (then, the Constable) for this case of "poor relief." Wages and salaries also were commonly paid in commodities (at legal rates) in New England. Thus,—

Att a Townemeeting held att the meeting house att Plymouth the * day of July 1667; It was agreed and concluded as followeth, viz:

"That the sume of fifty pounds shalbee alowed to Mr. Colton [the minister] for this present yeare and his wood To be raised by way of Rate to be payed in such as god gives, ever onely to be minded that a considerable parte of it shalbee payed in the best pay; and William Clarke and William Crow are appointed by the Towne to take notice of what is payed and brought in unto him and to keep an account therof. Joseph howland and ffrancis Combe are agreed with by the Towne to find the wood for this yeare for the sume of eight pounds."

The difficulty was to get "good pay." It is recorded in the accounts of Harvard that one student, afterward president of the college, paid his tuition with "an old cow," which, good or bad, had to be accepted at a fixed rate for coins.]

At a Meeting of the Select men the 13/10/1653

(25) Samuel Banjamine was presented before us for Idelnes By Mr. Norcros which Did two evidently apeare by his ragged Clothes and Divers Debts apearing, but upon his promise of amendment hee was released unto the next yeare.

(26) At apublick Towne meeting the 14 (8) 1654

Ordered by the Inhabetance that there should be anew meeting house builded

Ordered that the place where it shall stand shall be in som Convenient place betwene Sargant Brits ende fence and John Bisko his rayles.

Ordered that there shall be raysed by rate upon the inhabetance one hundred and fifty pounds this yeare for to begin the work withall

Ordered that Cambridg meeting house shall be our pattern in all poynts

Ordered the Select men shall have power to agree with John Sherman or any other person to performe tha foresaid work.

Ordered that the speaces [specie] in which workmen that Doe undertake it shall be payed in shall bee one 3d parte wheate, and the rest in rye, pease, Indecorne, and Cattell.

The Select men with the help of willyam Barsham have agreed with John Sherman to Build ameeting house Like unto Cambridg in all poynts, the Cornish and fane Excepted, and to have it finished by the Last of September in 1656; and hee is to receive of the Towne 400 pounds with the Seates of the old meeting house; which some [sum] is to be payd at 3 several payments, as by artickls of Agreement under hand and seale Dooth appeare more fully.

(27) Att a meeting of the 7 men Nov. 19. (56)

These are to Shew, that Elizabeth Braibrok widow of Watertowne in the County of Middlesex, hath putt her daughter (with the approbation of the select men) into the hands of Simont Tomson and his wife of Ipswich in the County of Essex, rope maker, to be as an apprentice, untill she come to the age of eighteene yeares, in which time the said Sarah is to serve them in all lawfull comands, and the said Simont is to teach her to reade the Englishe Tongue and to instruct her in the knowleg of god and his wayes, and to provide for the said Sarah, holesome meate and drink, with convenient cloathing as the seasons doe require and he the said Simont doth ingage himselfe and wife, to give the said Sarah at the end of her tearme, a good cow, and an ewe sheep with convenient Cloathing, and if the said Sarah dye within one yeare before her age pfixed, that then the said cow and sheep, shall goe to some of the children of the said Elizabeth Brabrok.

This agreement was signed and confirmed by there markes of each partie and witnessed as appears in two severall wrightings by Joshua Edmonds and in presence of the seaven men or the greatest part of them. Ephraim Child in the behalfe of the rest.

(28) At a meeting of the select men at Isaak Sternes his House January the 18th 1669

It was agreed that the select men shall take their turnes every man his Day to site upon the gallary to looke to the youths that they may prevent miscarigis in the time of publike exercises on the Lords Days and also that the two Constables shalbe desired to take their turnes to site ther also.

(29) At a meeting at Leift Beeri's march 3d 1670.

Ther comeing a complainte to us the selectmen concerneing the poverty of Edward Sandersons famelley: that they had not wherwith to mainetaine themselves and childeren either with suply of provision or emplyment to earne any and considering that it would be the charge of the towne to provide for the wholl fameley which will be hard to doe this yeer: and not knoweing how to suply them with provision: we considereing if we shoulde suply them and could doe it, yet it would not tend to the good of the childeren for their good eaducation and bringeing up soe as they may be usefull in the common weall or them selves to live comfortablly and usefuly in time to come, We have therfore a greed to put out two of his childeren in to sume honist famelleys wher they may be eaducated and brought up in the knowlidge of God and sum honist calling or labor. And therfor we doe order that Thomas Fleg and John Bigulah shall have power to binde them prentises with sume honist people with the consent of their perants if it may be hade, and if the perants shall oppose them, to use the helpe of the Magistrate: in the name and with the consent of the select men, Thomas Hastings.

(30) A ametting of the selectmen at Corparall bonds the 27th of march 1677

Agreed with leftenant shearmon to ceep an inglish scoole this year and to begin the (9th) of eaprill at the scoole house and the town to alow him twenty pounds in the town Reat that shall be raized in this yeare (77) and if the said leftenant dezireth to lay down his imployment at the years end then he shall give the town a quartur of ayears warning, and if the town dezyreth to chang ther scoole master thay shall give the like warning. The select men agree allsoo that the said scoole shall be cept from the furst of may to the last of august, 8 owers in the day, to witt, to begin at seven in the morning, and not to break up untill five at night, noone time acsepted; and from the last of august untill the last of octobur 6 ouers in the day, soo allsoo in the munths of march and Eaprill and the 4 winttur munths to begin at tenn of the clock in the morning and continnue untill 2 a clock in the afternoone.

(31) At ametting of the select men at the house of gregory coock:

this (7th) of Janiwary 1678:

The select men sent anoote to leftenant Shearmon and allso anoote to Mr goddard to signify to them thay had agreed with another man to ceep the scoole when thear year was oute, and that thay did thearby give them aquartur of ayears warning according to the ordur uppon the town Booke.

The select men agreed with mr Richard Norcros to ceep the Scoole at the Scoole house for the year foloing and to begin the 9th of Eaprill 1679, and to teach both Lattin and inglish Scollurs, so many as shall Be sent unto him from the in habitants once aweck to teach them thear catticise: only in the munths of may, June, July and august he is to teach only lattin scollurs and writturs and them at his owne house and thear to afford them all needfull help, and the other 8 munths at the scoolehouse both lattin and inglish scollurs, for which the select men agree that he shall have twenty pounds out of the town Reat to be mead for the yeare 1679, and the town at the Jenarall town metting to meak thear anuall Choyse for time to cum: this agreement Consented unto by Mr Richard norcros as witnis his hand....

FOOTNOTES:

XIV. MASSACHUSETTS AND PERSECUTION

As long as she was permitted to do so, Massachusetts secured religious uniformity by expelling or persecuting intruders who dissented from the established order. This was the practice and theory of all states in that day except Holland. Some individuals had advanced further, however, both in England and America (cf. American History and Government, § 84, close, for illustrations); and religious freedom was the fundamental principle in the Rhode Island "experiment" (No. 90, below).

84. Puritan Arguments for and against Persecution

a. The Simple Cobbler of Agawam, 1647

Nathaniel Ward, minister of Ipswich (Agawam), was one of the few of the Massachusetts clergy with democratic leanings. He had been helpful in drafting the democratic Body of Liberties (No. 78). But like that other democratic minister, Thomas Hooker (No. 93), Ward was a strict theocrat. His Simple Cobbler of Aggawamm was published in London in 1647.

... First, such as have given or taken any unfriendly reports of us New-English, should doe well to recollect themselves. Wee have beene reputed a Colluvies of wild Opinionists, swarmed into a remote wildernes to find elbow-roome for our phanatick Doctrines and practises: I trust our diligence past, and constant sedulity against such persons and courses, will plead better things for us. I dare take upon me, to bee the Herauld of New-England so farre, as to proclaime to the world, in the name of our Colony, that all Familists, Antinomians, Anabaptists, and other Enthusiasts shall have free Liberty to keepe away from us, and such as will come to be gone as fast as they can, the sooner the better.

Secondly, I dare averre, that God doth no where in his word tolerate Christian States to give Tolerations to such adversaries of his Truth, if they have power in their hands to suppresse them....

Not to tolerate things meerly indifferent to weak consciences, argues a conscience too strong: pressed uniformity in these, causes much disunity: To tolerate more then indifferents, is not to deale indifferently with God: He that doth it, takes his Scepter out of his hand, and bids him stand by....

Concerning Tolerations I may further assert.

That Persecution of true Religion, and Toleration of false, are the Jannes and Jambres to the Kingdome of Christ, whereof the last is farre the worst....

Frederick Duke of Saxon, spake not one foote beyond the mark when he said. He had rather the Earth should swallow him up quick, then he should give a toleration to any opinion against any truth of God.

He that is willing to tolerate any Religion, or discrepant way of Religion, besides his own, unlesse it be in matters meerly indifferent, either doubts of his own, or is not sincere in it.

He that is willing to tolerate any unsound Opinion, that his own may also be tolerated, though never so sound, will for a need hang Gods Bible at the Devills girdle.

Every Toleration of false Religions or Opinions hath as many Errours and sins in it as all the false Religions and Opinions it tolerats, and one sound one more.

That State that will give Liberty of Conscience in matters of Religion, must give Liberty of Conscience and Conversation in their Morall Laws, or else the Fiddle will be out of tune, and some of the strings crack.

Experience will teach Churches and Christians, that it is farre better to live in a State united, though a little Corrupt, then in a State, whereof some Part is incorrupt, and all the rest divided.

... There is talk of an universall Toleration. I would talke as loud as I could against it, did I know what more apt and reasonable Sacrifice England could offer to God for his late performing all his heavenly Truths then an universall Toleration of all hellish Errors, or how they shall make an universall Reformation, but by making Christs Academy the Divills University, where any man may commence [graduate] Heretique per saltum; where he that is filius Diabolicus, or simpliciter pessimus, may have his grace to goe to Hell cum Publico Privilegio; and carry as many after him, as he can....

It is said, Though a man have light enough himselfe to see the Truth, yet if he hath not enough to enlighten others, he is bound to tolerate them, I will engage my self, that all the Devills in Britanie shall sell themselves to their shirts, to purchase a Lease of this Position for three of their Lives, under the Seale of the Parliament.

It is said, That Men ought to have Liberty of their Conscience, and that it is persecution to debarre them of it: I can rather stand amazed then reply to this: it is an astonishment to think that the braines of men should be parboyl'd in such impious ignorance; Let all the wits under the Heavens lay their heads together and finde an Assertion worse then this (one excepted) I will petition to be chosen the universall Ideot of the world....

The true English of all this their false Latine is nothing but a generall Toleration of all Opinions....