ing it however from time to time by municipal regulations better adapted to their situation, or conforming more exactly to their stern notions of the absolute authority and universal obligation of the Mosaic institutions.1

§ 56. The Plymouth colonists acted, at first, altogether under the voluntary compact and association already mentioned. But they daily felt embarrassments from the want of some general authority, derived directly or indirectly from the crown, which should recognize their settlement and confirm their legislation. After several ineffectual attempts made for this purpose, they at length succeeded in obtaining, in January, 1629, a patent from the council established at Plymouth, in England, under the charter of King James of 1620.2 This patent, besides a grant of the territory upon the terms and tenure of the original patent of 1620, included an authority to the patentee (William Bradford) and his associates, "to incorporate by some usual or fit name and title him or themselves, or the people there inhabiting under him or them, and their successors, from time to time, to frame and make orders, ordinances, and constitutions, as well for the better government of their affairs here, and the receiving or admitting any into his or their society, as also for the better government of his or their people, or his or their people at sea in going thither or returning from thence; and the same to put or cause to be put in execution, by such officers and ministers, as he or they shall authorize and depute; provided, that the said laws and orders be not repugnant to the laws of England or the frame of government by the said president and council [of Plymouth Company] hereafter to be established." 3

§ 57. This patent or charter seems never to have been confirmed by the crown; and the colonists were never, by any act of the crown, created a body politic and corporate with any legislative powers. They, therefore, remained in legal contemplation a mere voluntary association, exercising the highest powers

1 Robertson's America, B. 10; 2 Hutch. Hist. 462, 463, 464; Hubbard's Hist. ch. 10, p. 62; 1Chalmers's Annals, 88.

2 2 Hutch. Hist. 464, 479; 1 Haz. Coll. 298, 404, 468; 1 Chalmers's Annals, 97, 98; 1 Holmes's Annals, 201.

8 1 Haz. Coll. 298, 404.

Chalmers says (1 Chalm. Annals, 97) that "this patent was not confirmed by the crown, though the contrary has been affirmed by the colonial historians." See also Marsh. Hist. Colon. ch. 3, pp. 82, 83.

and prerogatives of sovereignty, and yielding obedience to the laws and magistrates chosen by themselves.1

§ 58. The charter of 1629 furnished them, however, with the color of delegated sovereignty, of which they did not fail to avail themselves. They assumed under it the exercise of the most plenary executive, legislative, and judicial powers, with but a momentary scruple as to their right to inflict capital punishments.2 (a) They were not disturbed in the free exercise of these powers, either through the ignorance or the connivance of the crown, until after the restoration of Charles the Second. Their authority under their charter was then questioned; and several unsuccessful attempts were made to procure a confirmation from the crown. They continued to cling to it, until, in the general shipwreck of charters in 1684, theirs was overturned. An arbitrary government was then established over them in common with the other New England colonies; and they were finally incorporated into a province with Massachusetts, under the charter granted to the latter by William and Mary in 1691.

4

§ 59. It may not be without use to notice a few of the laws which formed what may properly be deemed the fundamentals of their jurisprudence. After providing for the manner of choosing their governor and legislature, as above stated, their first attention seems to have been directed to the establishment of "the free liberties of the free-born people of England." It was therefore declared, almost in the language of Magna Charta, that justice should be impartially administered unto all, not sold, or denied; that no person should suffer "in respect to life, limb, liberty, good name, or estate, but by virtue or equity of some express law of the General Court, or the good and equitable laws of our nation suitable for us, in matters which are of a civil nature (as by the court here hath been accustomed), wherein we have no particular law of our own;" and none should suffer without being brought to answer by due course and process of law; that in criminal and civil cases there should be a trial by

1 Marsh. Hist. Colon. ch. 3, p. 82; 1 Chalm. Annals, 87, 88, 97.

2 Hutch. Hist. 464, 465, 467; 1 Chalm. Annals, 88.

82 Hutch. Hist. 479, 480; 1 Chalm. Annals, 97, 98.

In 1636. See 1 Haz. Coll. 404, 408; Id. 178; Plymouth Colony Laws (edit. 1685); 1 Haz. Col. 411, 414, 419.

VOL. I.

3

(a) Palfrey, Hist. of New England, I. 542.

jury at all events upon a final trial on appeal, with the right to challenge for just cause; and in capital cases a peremptory right to challenge twenty jurors as in England; that no party should be cast or condemned, unless upon the testimony of two sufficient witnesses, or other sufficient evidence or circumstances, unless otherwise specially provided by law; that all persons of the age of twenty-one years, and of sound memory, should have power to make wills and other lawful alienations of their estate, whether they were condemned or excommunicated, or other; except that in treason their personal estate should be forfeited, but their real estate was still to be at their disposal. All processes were directed to be in the king's name.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

11 Haz. Coll. 473; Plymouth Colony Laws (1688), p. 16.

2 More ample imformation upon all these subjects will be furnished by an examina. tion of the Plymouth Colony Laws, first printed in 1685.

§ 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.

CHAPTER IV.

MASSACHUSETTS.

§ 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, granted 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. 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." 8 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 samo 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

1 Nov. 3, 1620; 1 Doug. Summ. 406, &c. 21 Haz. Coll. 103, 105, &c.

81 Haz. Coll. 99, 103, 106, 110, 111.