3

of deeds and mortgages of real estate were provided for, and the non-registry was deemed a badge of fraud.1 The trial by jury, although a privilege resulting from their general rights, was guarded by special legislation. There was also an early declaration, that no taxes could be levied by the governor without the consent of the general assembly; and when raised, they were to be applied according to the appointment of the legislature. The burgesses also during their attendance upon the assembly were free from arrest. In respect to domestic trade, a general freedom was guaranteed to all the inhabitants to buy and sell to the greatest advantage, and all engrossing was prohibited. The culture of tobacco seems to have been a constant object of solicitude; and it was encouraged by a long succession of acts, sufficiently evincing the public feeling, and the vast importance of it to the prosperity of the colony. We learn from Sir William Berkeley's answers to the Lords Commissioners, in 1671, that the population of the colony was at that time about 40,000; that the restrictions of the navigation act, cutting off all trade with foreign countries, were very injurious to them, as they were obedient to the laws. And "this," says he, "is the cause why no small or great vessels are built here; for we are most obedient to all laws, whilst the New England men break through, and men trade to any place that their interest leads them." This language is sufficiently significant of the restlessness of New England under these restraints upon its commerce. But his answer to the question respecting religious and other instuction in the colony, would in our times create universal astonishment. "I thank God," says he, "there are no free schools nor printing; and I hope we shall not have these hundred years; for learning has brought disobedience and heresy and sects into the world, and printing has divulged them and libels against the best government. God keep us from both."4 In 1680 a remarkable. change was made in the colonial jurisprudence, by taking all judicial power from the assembly, and allowing an appeal from the judgments of the General Court to the King in Council.5

11 Henning, Stat. 248; 2 Hen. Stat. 98; 3 Hen. Stat. 321.

21 Henning, Stat. 290.

* See 1 Hen. Stat. 126, and Index, tit. Tobacco, in that and the subsequent volumes; 2 Hen. Stat. 514.

4 2 Hen. Stat. 511, 512, 514, 517; 1 Chalm. Annals, 328; 3 Hutch. Collect. 496. Marsh. Colon. ch. 5, p. 163; 1 Chalm. Annals, 325.

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 though 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. Captain John Smith, so well known in the history of Virginia by his successful adventures under their authority, lent a transient lustre 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, afterwards 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 corresponding 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

1 Robertson's America, B. 10; Marsh. Amer. Col. ch. 3, pp. 77, 78; 1 Haz. Coll. 103, 147, 404; 1 Belknap's New Hampshire, ch. 1.

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 received 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 ccclesiastic. Each sect, as it attained power, exhibited the same unrelenting firmness in putting down its adversarics. 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 to 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. 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 live

1 Dr. Robertson has justly observed, that not only the idea of toleration, but even the word itself, in the sense now affixed to it, was then unknown.* Sir James Mackintosh, a name equally glorious in judicial and ethical philosophy, has remarked, that this giant evil (the suppression of the right of private judgment in matters of religion) had received a mortal wound from Luther, who, in his warfare with Rome, had struck a blow against all human authority, and unconsciously disclosed to mankind that they were entitled, or rather bound, to form and utter their own opinions, and most of all, on the most deeply interesting subjects. Dissertation on the Progress of Ethical Philosophy (Phila. 1832), p. 36.

2 Robertson s America, B. 10; 1 Belknap's New Hampshire, ch. 3; 1 Chalm. Annals, pp. 143, 145, 169, 189, 190, 191; 3 Hutch. Hist. Coll. 42.

The whole passage deserves commendation for its catholic spirit. Robertson's America,

liest 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 widespread 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.1 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. 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. 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; 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 jurist 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,

1 Belknap's New Hamphire, ch. 3; 1 Doug. Summ. 369.

2 Morton's Mem. 1 to 30.

Robertson's America, B. 10; Marsh. Amer. Col. ch. 3, pp. 79, 80; Morton's Mem. 31 to 35.

1 Haz. Coll. 87, 88; Morton's Mem. App. 373.

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, for 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. 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. Four others were soon afterwards added, and finally the number was increased to seven.3 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.* The number of settlements having increased, and being at a considerable distance from each other, a house of representatives was established in 1639; 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, vary11 Haz. Coll. 119; Morton's Mem. 37; Marsh. Colon. ch. 3, p. 80; Robertson's America, B. 10; 2 Hutch. Hist. 455.

2 Plymouth Laws (1685); 1 Haz. Coll. 404, 408.

Morton's Mem. 110; Prince's Annals, 225; 2 Hutch. Hist. 463, 465; 1 Haz. Coll. 404, 408, 411, 412

4 Robertson's America, B. 10; 2 Hutch. Hist. 467; 1 Haz. Coll. 408, 411, 412, 414. $ 2 Hutch. Hist. 463.