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Scriptures. But theft was not punished with death, because, as they said, “we read otherwise in the Scriptures;” 1 and many other crimes of a heinous nature were suffered to pass
with a moderate punishment.2 Hutchinson has well observed, that “in punishing offences they professed to be governed by the judicial laws of Moses, but no further than those laws were of a moral na
Marriages were celebrated exclusively by magistrates during the first charter; though afterwards there was a concurrent power given to the clergy.4 Divorces a mensa et thoro secm not to have been in use during the period of the first charter; but for the same causes for which such a divorce might be granted by the spiritual courts, a divorce a vinculo was granted. Female adultery was a sufficient cause; but male adultery not. In tenderness to the marriage state, a man who struck his wife, or a woman her husband, was liable to a fine. 6
§ 73. In the beginning the county courts had jurisdiction of the testamentary matters, and real estate was at first treated as mere bona in the civil law. When a positive rule was made, all the estate was (apparently with some reference to the Mosaic law) made subject to distribution; the widow had such part of the estate as the court held just and equal; and the rest was divided among the children or other heirs, the eldest son having a double portion, and the daughters, where there were no sons, inheriting as coparccncrs, unless the court otherwiso should determino. 8 If the party died insolvent, his estate was distributed among all his creditors, there not being any preference of any debts by judgment or specialty. 9
The law of inheritance was thus, as we see, altered from that of England from the beginning; and yet, strangely cnough, the General Court, in their answer in 1646, considered their canon of descent as parallel to the English law, and expounded it by the same terms, “the eldest son is preferred before the younger in the ancestor's inheritance,” 10 when in reality he had only a
1 Hutch., Coll. 205.
4 1 Hutch. Hist. 444. 61 Jlutch. Hist. 445.
6 1 Hutch. Hist. 445. 71 Hutch. Hist. 446. 8 Ant. Col. and Prov. Laws, ch. 104, p. 205. 91 Hutch. Hist. 446. 10 Hutch. Coll. 207 ; 1 Hutch. Hist. 447 ; Ant. Col. and Prov. Laws, ch. 104, p. 205.
double portion, and the estate was partible among all the children. Their land being by the charter held, as of the manor of East Greenwich, in free and common socage, they attributed to it the gavelkind quality of not being forfeited for felony or treason; and the convict might, therefore, even after sentence, dispose of it by will.? Estates tail were recognized, and in such cases the heir took per formam doni, according to the common law, and not all the children as one heir. 2
§ 74. In respect to ecclesiastical concerns, they made ample provision for their own church (meaning the Congregational Church), exclusive of all others. In their parallel in 1646, they quote the provision of Magna Charta, that “the church shall enjoy all her liberties,” and, dropping all suggestion of the real differences of their own church establishment from that of England, they quote their own provision, that “all persons orthodox in judgment, and not scandalous in life, may gather into a church state, according to the rules of the gospel,” as of similar import. 3 They gave to their own churches, when organized, full power and authority to inflict ccclesiastical censures, and even to expel members. But they reserved to the civil authority the further power to punish offences, and “the liberty to see the peace, ordinances, and rules of Christ observed.” 4 Every church had liberty to elect its own officers, and “no injunction was to be put upon any church, church officer, or member, in point of doctrine, worship, or discipline, whether for substance or circumstance, besides the institution of the Lord.”5 But the General Court, with the assistance of the clergy, were in the habit of judging of all such matters with supreme authority, and of condemning errors with no sparing hand. They had not the slightest scruple of punishing heresies with fines and banishment, and even, in obstinate cases, with death.6 Ministers were maintained and public worship provided for by taxes assessed upon the inhabi
11 Hutch. Hist. 447.
2 1 Hutch. Hist. 447. 8 Hutch. Collect. 201 ; Ant. Colon. and Prov. Laws, ch. 39, p. 100; 1 Haz. Coll. 488.
4 Ant. Col. and Prov. Laws, ch. 39, pp. 100. 101. 5 i Hutch. Hist. 420, 421, 422, 423, 424, 434 ; 1 Belk. New Hamp. ch. 4, pp. 70, 71.
6 Robertson's America, B. 10; 1 Belk. New Hamp. ch. 4, pp. 70 to 77 ; Ant. Col. and Prov. Laws, ch. 57, p. 120, &c. ; Hutch. Col. 215, 216 ; 1 Hutch. Hist. 431 ; 2 Hutch. Hist. 42; 1 Haz. Coll. 538 ; 1 Chalmers's Annals, 163, 164, 165, 167, 169, 189, 190, 191, 194.
tants of each parochial district; and an attendance upon public worship was required of all persons, under penalties, as a solemn duty.' So effectual were the colonial laws in respect to conformity, and so powerful the influence of the magistrates and the clergy, that Hutchinson informs us that there was not “any Episcopal Church in any part of the colony until the charter was vacated.” 2
§ 75. But the most striking, as well as the most important part of their legislation, is in respect to education.
As early as 1647, the General Court, “to the end,” as the preamble of the act declares, 3 “ that learning may not be buried in the graves of our forefathers in church and commonwealth,” provided, under a penalty, that every township of fifty householders “shall appoint a public school for the instruction of children in writing and reading,” and that every town of one hundred householders “shall set up a grammar school, the master thereof being able to instruct youth so far as may be fitted for the university.” This law has, in substance, continued down to the present times ; and it has contributed more than any other circumstance to give that peculiar character to the inhabitants and institutions of Massachusetts for which she, in common with the other New England States, indulges an honest and not unreasonable pride.
§ 76. After the grant of the provincial charter, in 1691, the legislation of the colony took a wider scope, and became more liberal as well as more exact. At the very first session an act passed, declaring the general rights and liberties of the people, and embracing the principal provisions of Magna Charta on this subject. Among other things, it was declared that no tax could bc levied but by the General Court; that the trial by jury should be secured to all the inhabitants; and that all lands shall be free from escheats and forfeitures, except in cases of high treason. A habeas
corpus act was also passed at the same session; but it seems to have been disallowed by the crown.5 Chalmers asserts that there is no circumstance in the history of colonial
1 i Hutch. Hist. 427 ; Ant. Col. and Prov. Laws, ch. 39, pp. 103, 104.
6 2 Hutch. Hist. 64.
jurisprudence better established than the fact that the habeas corpus act was not extended to the plantations until the reign of Queen Anne. 1
§ 77. It does not seem necessary to go into any minute examination of the subsequent provincial legislation. In its general character it did not materially vary from that antecedently adopted, except so far as the charter required, or a progressive spirit of improvement invited a change. Lands were made liable to the payment of debts; the right of choosing their ministers was, after some struggles, secured in effect to the concurrent vote of the church and congregation in each parish; and the spirit of religious intolerance was in some measure checked, if not entirely subdued. Among the earliest acts of the provincial Legislature, which were approved, was an act for the prevention of frauds and perjuries, conformable to that of Charles the Second; an act for the observance of the Lord's Day; an act for solemnizing marriages by a minister or a justice of peace; an act for the support of ininisters and schoolmasters; an act for regulating towns and counties; and an act for the settlement and distribution of the estates of persons dying intestato. These and many other acts of general utility have continued substantially in force down to our day. Under the act for the distribution of estates, the half-blood were permitted to inherit equally with the whole blood.8 Entails were preserved and passed according to the course of descents of the common law; but the general policy of the State silently reduced the actual creation of such estates to comparatively narrow limits.
$ 78. Having gone into a full consideration of the origin and political organization of the primitive colonies in the South and North, it remains only to take a rapid view of those which were subsequently established in both regions. An historical order will probably be found as convenient for this purpose as any which could be devised.
$ 79. In November, 1629, Captain John Mason obtained a grant from the Council of Plymouth of all that part of the mainland in New England "lying upon the sca-coast, beginning from the middle part of Merrimack River, and from thence to proceed northwards along the sea-coast to Piscataqua River, and so forwards up within the said river and to the furthest head thereof; and from thence northwestwards until threescore miles be finished from the first entrance of Piscataqua River; and also from Merrimack through the said river and to the furthest head thereof, and so forwards up into the lands westwards, until threescore milcs be finished; and from thence to cross overland to the end of the threescore miles accounted from Piscataqua River, together with all islands and islets within five leagues' distance of the premises."1 This territory was afterwards called New Hampshire. The land so granted was expressly subjected to the conditions and limitations in the original patent; and there was a covenant on the part of Mason, that he would establish such govcrnment therein, and continue the same, “as shall be agreeable, as near as may be, to the laws and customs of the realm of England;" and that if charged with neglect, he would reform the same according to the discretion of the president and council; or in default thereof, that the aggrieved inhabitants or planters, tenants of the lands, might appeal to the chief court of justice of the president and council. A further grant was made to Mason by the Council of Plymouth about the time of the surrender of
i Haz. Coll. 289 ; 1 Holmes's Annals, 199 ; 1 Belk. New Hamp. ch. 1, p. 13.