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dence or circumstances, unless otherwise specially provided by law; that all persons of the age of twenty-one years, and of sound memory, should have power to make wills and other lawful alienations of their estate, whether they were condemned or excommunicated, or other; except that in treason their personal estate should be forfeited, but their real estate was still to be at their disposal. All processes were directed to be in the king's name.1 All trials in respect to land were to be in the county where it lay; and all personal actions where one of the parties lived; and lands and goods were liable to attachment to answer the judgment rendered in any action. All lands were to descend according to the free tenure of lands of East Greenwich, in the county of Kent; and all entailed lands according to the law of England. All the sons were to inherit equally, except the eldest, who was to have a double share. If there were no sons, all the daughters were to inherit alike. Brothers of the whole blood were to inherit; and if none, then sisters of the whole blood. All conveyances of land were to be by deed only, acknowledged before some magistrate, and recorded in the public records. Among capital offences were enumerated, without any discrimination, idolatry, blasphemy, treason, murder, witchcraft, bestiality, sodomy, false witness, man-stealing, cursing or smiting father or mother, rape, wilful burning of houses and ships, and piracy; while certain other offences of a nature quite as immoral and injurious to society, received a far more moderate punishment. Undoubtedly a reverential regard for the Scriptures placed the crimes of idolatry, blasphemy, and false witness, and cursing and smiting father and mother, among the capital offences. And, as might well be presumed from the religious sentiments of the people, ample protection was given to the church; and the maintenance of a public orthodox ministry and of public schools was carefully provided for.2
§ 60. Compared with the legislation of some of the colonies during an equal period, the laws of the Plymouth Colony will be found few and brief. This resulted in some measure from the narrow limits of the population and business of the colony; but in a greater measure from their reliance in their simple proceedings upon the general principles of the common law.
Į Haz. Coll. 473; Plymouth Colony Laws (1688), p. 16.
2 More ample information upon all these subjects will be furnished by an examination
of the Plymouth Colony Laws, first printed in 1685.
§ 61. ABOUT the period when the Plymouth colonists completed their voyage, (1620,) James the First, with a view to promote more effectually the interests of the second or northern company, granted1 to the Duke of Lenox and others of the company a new charter, by which its territories were extended in breadth from the 40th to the 48th degree of north latitude; and in length by all the breadth aforesaid throughout the mainland from sea to sea, excluding, however, all possession of any other Christian prince, and all lands within the bounds of the southern colony.2 To the territory thus bounded he affixed the name of New England, and to the corporation itself so created the name of "The Council established at Plymouth in the county of Devon, for the planting, ruling, ordering, and governing of New England in America." 3 The charter contains the names of the persons who were to constitute the first council, with power to fill vacancies and keep up a perpetual succession of counsellors to the number of forty. The power to purchase, hold, and sell lands, and other usual powers of corporations, are then conferred on them, and special authority to make laws and ordinances to regulate the admission and trade of all persons with the plantation; to dispose of their lands; to appoint and remove governors and other officers of the plantation; to establish all manner of orders, laws and directions, instructions, forms and ceremonies of government and magistracy, so that the same be not contrary to the laws and statutes of England; to correct, punish, pardon, govern, and rule all inhabitants of the colony by such laws and ordinances, and in defect thereof, in cases of necessity, according to the good discretions of their governors and officers respectively, as well in cases capital and criminal as civil, both marine and others, so always that the same ordinances and proceedings be, as near as conveniently may be, agreeable to the laws, statutes, government, and policy of England; and finally to
1 Nov. 3, 1620; 1 Doug. Summ. 406, &c. 2 1 Haz. Coll. 103, 105, &c.
8 1 Haz. Coll. 99, 103, 106, 110, 111.
regulate trade and traffic to and from the colony, prohibiting the same to all persons not licensed by the corporation.1 The charter further contains some extraordinary powers in cases of rebellion, mutiny, misconduct, illicit trade, and hostile invasions, which it is not necessary to particularize. The charter also declares that all the territory shall be holden of the crown, as of the royal manor of East Greenwich, in Kent County, in free and common socage, and not in capite, nor by knight service; 2 and that all subjects, inhabitants of the plantation, and their children and posterity born within the limits thereof, shall have and enjoy all liberties and franchises and immunities of free denizens and natural subjects within any other of the dominions of the crown, to all intents and purposes, as if they had been abiding and born within the kingdom of England, or any other dominions of the crown. The charter also authorized the council to transport to the plantation any subjects, or strangers who were willing to become subjects and live under the king's allegiance. But it prohibited papists to be transported, by requiring all persons going there to take the oath of supremacy, and authorizing the president of the council to administer the oath.4
§ 62. Some of the powers granted by this charter were alarming to many persons, and especially those which granted a monopoly of trade.5 The efforts to settle a colony within the territory were again renewed, and again were unsuccessful. The spirit of religion, however, soon effected what the spirit of commerce had failed to accomplish. The Puritans, persecuted at home, and groaning under the weight of spiritual bondage, cast a longing eye towards America as an ultimate retreat for themselves and their children. They were encouraged by the information that the colonists at Plymouth were allowed to worship their Creator according to the dictates of their consciences, without molestation. They opened a negotiation, through the instrumentality of a Mr. White, a distinguished non-conforming minister, with the council established at Plymouth; and in March, 1627, procured from them a grant, to Sir Henry Rosewell and others, of all that part of New England lying three miles south of Charles River and
1 1 Haz. Coll. 109, 110, 112, 113, 141.
2 Ibid. 111.
4. Ibid. 117.
5 Marsh. Colon. ch. 3, p. 83; Chalm. Annals, p. 81, 83.
6 Robertson's America, B. 10; Chalm. Annals, 90.
8 Ibid. 117.
three miles north of Merrimack River, extending from the Atlantic to the South Sea.1
§ 63. Other persons were soon induced to unite with them, if a charter could be procured from the crown which should secure to the adventurers the usual powers of government. Application was made for this purpose to King Charles, who accordingly, in March, 1628, granted to the grantees and their associates the most ample powers of government. The charter confirmed to them the territory already granted by the council established at Plymouth, to be holden of the crown, as of the royal manor of East Greenwich, "in free and common socage, and not in capite, nor by knight's service, yielding to the crown one fifth part of all ore of gold and silver," &c., with the exception, however, of any part of the territory actually possessed or inhabited by any other Christian prince or state, or of any part of it within the bounds of the southern colony [of Virginia] granted by King James. It also created the associates a body politic by the name of "The Governor and Company of the Massachusetts Bay in New England," with the usual powers of corporations. It provided that the government should be administered by a governor, a deputy-governor, and eighteen assistants, from time to time elected out of the freemen of the company, which officers should have the care of the general business and affairs of the lands and plantations, and the government of the people there,; and it appointed the first governor, deputy-governor, and assistants by name. It further provided that a court or quorum for the transaction of business should consist of the governor, or the deputy-governor, and seven or more assistants, which should assemble as often as once a month for that purpose, and also that four great general assemblies of the company should be held in every year. In these great and general assemblies, (which were composed of the governor, deputy, assistants, and freemen present,) freemen were to be admitted free of the company, officers were to be elected, and laws and ordinances for the good and welfare of the colony made; "so as such laws and ordinances be not contrary or repugnant to the laws and statutes of this our realm of England." At one of these great and general assemblies held in Easter Term, the governor, deputy, and assistants,
1 These are not the descriptive words of the grant, but a statement of the substance of it. The grant is recited in the charter in Hutchinson's Collection, p. 1, &c., and in the Colonial and Province Laws of Massachusetts, printed in 1814.
and other officers were to be annually chosen by the company present. The company were further authorized to transport any subjects or strangers willing to become subjects of the crown to the colony, and to carry on trade to and from it, without custom or subsidy for seven years, and were to be free of all taxation of imports or exports to and from the English dominion for the space of twenty-one years, with the exception of a five per cent duty. The charter further provided that all subjects of the crown who should become inhabitants, and their children born there, or on the seas going or returning, should enjoy all liberties and immunities of free and natural subjects, as if they and every of them were born within the realm of England. Full legislative authority was also given, subject to the restriction of not being contrary to the laws of England, as also for the imposition of fines and mulcts "according to the course of other corporations in England." 1 Many other provisions were added, similar in substance to those found in the antecedent colonial charters of the crown.
§ 64. Such were the original limits of the colony of Massachusetts Bay, and such were the powers and privileges conferred on it. It is observable that the whole structure of the charter presupposes the residence of the company in England, and the transaction of all its business there. The experience of the past had not sufficiently instructed the adventurers that settlements in America could not be well governed by corporations resident abroad; 2 or if any of them had arrived at such a conclusion, there were many reasons for presuming that the crown would be jealous of granting powers of so large a nature, which were to be exercised at such a distance as would render control or responsibility over them wholly visionary. They were content, therefore, to get what they could, hoping that the future might furnish more ample opportunities for success; that their usurpations of authority would not be closely watched; or that there might be a silent indulgence, until the policy of the crown might feel it a duty to yield, what it was now useless to contend for, as a dictate of wisdom and justice. The charter did not include any clause providing for the free exercise of religion or the rights of conscience, (as has been often erroneously supposed.) It gave authority to
Hutch. Coll. p. 1-23; 1 Haz. Coll. 239; 1 Chalm. Annals, p. 137.
2 Chalm. Annals, 81; Robertson's Hist. America, B. 10.
8 Robertson's America, B. 10; 1 Chalm. Annals, 141.
4 1 Chalmers's Annals, 141; Robertson's America, B. 10, and note.