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Representative Government formed.

many years Governor of Connecticut. The second was the next year elected Governor of Massachusetts. The three last named were among the most eminent divines of that day, and their migration to New England, drew after them multitudes of the persecuted Puritans. Mr. Cotton is said to have been more useful and influential in settling the civil as well as ecclesiastical polity of New England than any other person.

Until this period the legislative powers had been exercised by the governor, deputy governor, and assistants, and the whole body of freemen in person, though the latter had been permitted to have but little share in the government; but the colony had now become so numerous that it was inconvenient, and indeed impracticable, to legislate in one assembly; nor was it safe, surrounded as they were, with hostile Indians, for the freemen to leave their families for so long a time unprotected: necessity, therefore, obliged them to establish a representative form of government, which they did by general consent, though no express provision was made for it in the charter. Accordingly, the freemen elected twenty-four deputies, who appeared in general court, April, 1634, as their representatives. Their first business was to assert the rights of the people by passing the following resolutions; viz. "That none but the general court had power to make and establish laws, or to elect and appoint officers as governor, deputy governor, assistants, treasurer, secretary, captains, lieutenants, ensigns, or any of like moment, or to remove such upon misdemeanour, or to set out the duties or powers of these officers. That none but the general court hath power to raise monies and taxes, and to dispose of lands, viz. to give and confirm proprieties." After these resolutions, they proceeded to the election of magistrates. Then they further determined, "That there shall be four general courts held yearly, to be summoned by the governor for the time being, and not to be dissolved but by consent of the major part of the court. That it shall be lawful for the freemen of each plantation to choose two or three, before every general court, to confer of, and prepare, such business as by them shall be thought fit to consider of at the next court; and that such persons as shall be hereafter so deputed by the freemen of the several plantations, to deal in their behalf in the affairs of the commonwealth, shall have the full power and voices of all the said freemen, derived to them for the making andestablishing of laws, granting of lands, &c. and to deal in all other affairs of the commonwealth, wherein the freemen

Code of Laws enacted.

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have to do, the matter of election of magistrates and other officers only excepted, wherein every freeman is to give his own voice." And to shew their resentment, they imposed a fine upon the court of assistants for going contrary to an order of the general court. "The legislative body thus organized, continued without alteration (except that the number of general courts annually was reduced, in 1644, from four to two) till the loss of the charter in 1684. This is supposed to have been the second house of representatives that ever assembled in America. A house of burgesses met for the first time in Virginia, May, 1620, fourteen years before. Having thus established their form of government, the enaction of a code of laws was the next business in course, The leading characters among the colonists were e of opinion that the subjects of any prince or state had a natural right to emigrate to any other state or country, when deprived of liberty of con science, and that upon such a removal their allegiance ceased. They considered their subjection to the crown of England as voluntary, and founded on mutual compact, and this compact was their charter. They maintained their right to make their own laws, and to elect their own magistrates, but acknowledged that their laws inust not be repugnant to those of England; and that by their compact they had no right to be subject to, nor seek protection from any foreign prince. With these sentiments, and without any partiality for the laws of their mother country, under which they had suffered so many hardships, it is not surprising that they did not adopt the laws of England as the foundation of their code. The peculiarity of their situation, indeed, rendered corresponding laws and regulations necessary. And as their leading object in migrating to this country, was to enjoy liberty of conscience, and to support and transmit pure to their posterity, the religion of the bible; and finding in this book the leading principles of good governnient, and a system of laws for the general regulation of human conduct, they adopted it as their "principal code of law, and declared, as an article in their bill of rights, that no man should suffer but by an express law, sufficiently published, yet in case of a defect of law in any particular instance, by the word of God. It is obvious to all, in the present age, that the pecu liarities of the Jewish nation must render their jurisprudence inapplicable, in a variety of instances, to a people so differently circumstanced; and the rights of individuals could gain othing by neglecting the experience of mankind, in former

judicial proceedings, where they were in any degree similar to cases which might arise. The code of laws became marked with many additional capital crimes, unknown as such to those of England; and smaller offences were multiplied with rigorous exactness. As this severity had for its object an exemplary purity of morals and religion, which should extend to every person in society, it of course reached the more private actions of its members, and included all the relationships subsisting between them. Their capital offences were idolatry, witchcraft, blasphemy, murder, bestiality, sodomy, adultery, manstealing, bearing false witness, conspiracy, and rebellion, cursing, or smiting a parent, unless when neglected in education, or provoked by extreme and cruel correction, rebellious and stubborn conduct in a son disobeying the voice and chastisement of his parents, and living in notorious crimes, rape, and arson; other offences were also made capital upon a second or third conviction, and the degree of the offence was in some instances increased by the circumstances of its being committed on the sabbath. In the inferior classes of crimes, were many peculiar to the situation of the colony, especially with regard to sumptuary regulations and the enforcing of industry. In these there are strong proofs of the disposition which prevailed, of shewing respect to particular descriptions of families by distinctions in their favour. Their punishments bore a resemblance to the general rigour of their penal code, and were sometimes, even in capital cases, left to the discretion of their judges. There is a law on the subject of torture, which is a stain rather upon the volume in which it is recorded, than upon the practice of the country; to the honour of which it may said, that the use of this statute has been so little contemplated, that it became wholly obsolete. This law prohibits torture generally, but excepts any case in which the criminal is first fully convicted, by clear and sufficient evidence; after which, if it be apparent from the nature of the case, that there be confederates with him, he may be tortured, yet not with such tortures as are barbarous and inhuman. The very terms of this statute seem to disarm it of the power of injuring, and would render it, if it were in force, a less dreadful engine of inhumanity, than the peine forte et dure of the English law. The rigour of justice extended itself as well to the protection of the rights of property, as to the moral habits of the people; and a remarkable instance of this is shewn in the power given to creditors over the persons of their debtors. The law ad

be

mitted of a freeman's being sold for service to discharge his debts, though it would not allow of the sacrifice of his time, by his being kept in prison, unless some estate was concealed. The governor and assistants were the first judicial court; to this, inferior jurisdictions were added; and upon the house of representatives coming into existence, the judicial authority was shared by them, as in the words of their law, the second branch of the civil power of this commonwealth. The subordinate jurisdictions were the individual magistrates, the commissioners of towns and the county courts. These seem, in some sense, to have acted as the deputies of the general court, since, in difficult points, they were allowed to state the case without the names of the parties, to that court, and receive its declaration of the law. The perpetual controversy incident to dividing power among several orders, disproportionate in their numbers, took place between the assistants and representatives. Whether they should vote in separate bodies or collectively, became a serious dispute. As by a defect in the constitution they held both legislative and judicial authority; it was at last compromised, that in making the laws, the houses should vote separately, with a negative upon each other; but in trying causes, in case they should differ in this mode, they should proceed to determine the question by voting together. As in their government, hereditary claims were rejected, their public officers being all periodically chosen from the body of the freemen, and without regard to distinct orders, so in the descent and distribution of real or personal estates of intestates, the exclusive claim of any one heir was not admitted, but equal division was made among all, reserving only to the eldest son a double portion. This, especially in case of a numerous family, which is not an uncommon instance in a young country, effectually prevented the undue accumulation of property. These two regulations may be said to be the great pillars on which republican liberty in Massachusetts is supported. There was an inestimable advantage gained to the cause of freedom by a law, in 1641, which declares the lands of the inhabitants free from all fines and licences upon alienation, heriots, wardships, and the whole train of feudal exactions, which have so grievously oppressed mankind in other parts of the world. They tendered hospitality and succour to all christian strangers, flying from the tyranny of their persecutors, or from famine, wars, or the like compulsory cause, and

entitled them to the same law and justice as was administered 66 among themselves."

But while they have thus scrupulously regulated the morals of the inhabitants within the colony, and offered it as an asylum to the oppressed among mankind, they neglected not to prevent the contagion of dissimilar habits, and heretical princi ples from without. A law was made, in the year 1637, that none should be received to inhabit within the jurisdiction, but such as should be allowed by some of the magistrates; and it was fully understood, that differing from the religious tenets generally received in the country, was as great a disqualification as any political opinions whatever. In a defence of this order, it is advanced, that the apostolic rule of rejecting such as brought not the true doctrine with them, was as applicable to the commonwealth as the church, and that even the profane were less to be dreaded, than the able advocates of erroneous opinions."

CHAP. IX,

Character of first Settlers-New Hampshire and Maine settled→ Exeter planted.

THE first settlers of New England were certainly a remarkable people; of a character peculiarly adapted to those m portant designs in Providence which they were to fulfil. They were destined to plant and subdue a wilderness, filled with savage and ferocious enemies; to lay the foundation of a great empire; and this too under the jealous and unpropitious eye of their parent country. Accordingly they were enterprising, brave, patient of labour and sufferings, and possessed a firmness of spirit, and a zeal for religion bordering on enthusiasm. They had also among them their full proportion of the learned and best informed men of that age. A body of men more remarkable for their piety, more exemplary in their morals, more respectable for their wisdom, never before, nor since, commenced the settlement of any country. What have been considered as blemishes in their character seemed necessary in their situation. "Less rigour would have disqualified them for discharging the heavy duties which they had to perform, and perhaps, more liberality would have introduced sectaries, which would have weakened the community by divisions, and profligates, who would have corrupted it by their vices." One