The early government of the Puritans in Boston was a sort of extemporary
government, or, as it has been described, "temporary usurpation,"--a
government of opinions and prejudices, and in small sense a government of
law. It had some of the features of a family government, without system or
order. If the inhabitant offended, or did any thing which was not thought
proper by the Church, the assistants, or anybody else, fine or punishment
was pretty sure to follow. To be sure there was the Massachusetts Colony
Charter somewhere; but it is singular that the copy of it found among
Hutchinson's papers, and since printed, is certified to be a "true copy of
such letters patents under the great seal of England," by John Winthrop,
Governor, dated "this 19th day of the month called March, 1613-1644." This
verbose and peculiar document gives authority to the company in the matter
of government in the following elaborate form:--
"And wee do of our further grace, certaine knowledge and meere motion
give and grant to the said Governor and Company and their successors,
that it shall and may be lawfull to and for the Governour or deputy
Governor and such of the Assistants and Freemen of the said Company
for the tyme being as shall be assembled in any of their generall
courts aforesaid, or in any other courts to be specially summoned and
assembled for that purpose, or the greater part of them (whereof the
Governour or deputy Governor and sixe of the Assistants to be always
seven) from tyme to tyme to make, ordaine and establish all manner of
wholesome and reasonable orders, lawes, statutes and ordinances,
directions and instructions not contrary to the lawes of this our
realme of England, as well for the settling of the formes and
ceremonies of government and magistracie fitt and necessary for the
said plantation and the inhabitants there, and for nameing and styling
of all sorts of officers both superiour and inferiour which they shall
find needful for that government and plantation, and the
distinguishing and setting forth of the severall duties, powers and
limits of every such office and place, and the formes of such oathes
warrantable by the lawes and statutes of this our realme of England as
shall be respectively ministred unto them, for the execution of the
said several offices and places, as also for the disposing and
ordering of the elections of such of the said officers as shall be
annuall, and of such others as shall be to succeed in case of death or
removall, and ministring the said oathes to the new elected officers,
and for imposition of lawfull fynes, mulcts, imprisonment or other
lawfull correction, according to the course of other Corporations in
this our realme of England, and for the directing, ruleing and
disposeing of all other matters and things whereby our said people
inhabiting there may be so religiously, peaceably and civily governed,
as theire good life and orderly conversation may winne and incite the
natives of that country to the knowledge and obedience of the onely
true God and Saviour of mankind and the christian faith, which in our
royall intention and the adventurers free profession is the principal
end of this plantation."
The charter goes on to give authority to commanders, captains, governors,
and all other officers for the time being, "to correct, punish, pardon,
govern and rule all such the subjects of us, our heires and successors,
as shall from tyme to tyme adventure themselves in any voyage thither or
from thence, or that shall at any tyme hereafter inhabit within the
precincts and parts of New England aforesaid, according to the orders,
lawes, ordinances, instructions and directions aforesaid, not repugnant to
the laws and statutes of our realme of England as aforesaid." And in order
to make the laws of these officers known, it is provided, as printing
would not be practicable, that they shall be "published in writing under
theire common seale."
But it would seem, notwithstanding, that the authority exercised by the
company was at first executive rather than legislative; and Mr. Savage
remarks, that the body of the people "submitted at first to the mild and
equal temporary usurpation of the officers, chosen by themselves, which
was also justified by indisputable necessity." The first "Court of
Assistants" was held at Charlestown, Aug. 23, 1630; and the first thing
propounded was, "how the ministers shall be maintained," and it was
determined, of course, at the public charge. Gov. Winthrop, Lieut.-Gov.
Dudley, and the assistants were present; and this body carried on the
government--what there was of it--"in a simply patriarchal manner," until
"the first General Court or meeting of the whole company at Boston, 19
October," 1631, and this was held "for the establishing of the
government." It was now determined that "the freemen should have the power
of choosing assistants, and from themselves to choose a Governor and
Lieut. Governor, who with the assistants should have the power of making
laws and choosing officers to execute the same." This is the brief history
of the origin of a local government in the colony of Massachusetts Bay, if
it may be so called. It was autocratic for the first year and afterwards,
although fully assented to by a general vote of the people.
At first, of course, there were no laws; and punishments were adjudged and
inflicted, under the authority of the charter, not only for trivial
matters, as they would be now considered, but for very questionable, if
not ludicrous, matters,--and all this, it would seem, without respect of
persons: for, as early as Nov. 30, 1630, at a court, it was ordered that
one of the assistants be fined five pounds for whipping two persons
without the presence of another assistant, contrary to an act of court
formerly made; so that this very early exercise of authority was not under
a law made after the fact. At the same court another person was sentenced
to be whipped for shooting a fowl on the sabbath day; and this, probably,
was _ex post facto_. In 1631, a man was fined five pounds for taking upon
himself the cure of scurvy by a water of no value, and selling it at a
dear rate; to be imprisoned until he paid the fine, or whipped. In 1632,
the first thief was sentenced to lose his estate, pay double what he had
stolen, be whipped, bound out for three years, and after that be dealt
with as the court directs. Other offences, or what not, were punished by
"taking life and limb, branding with a hot iron, clipping off ears," &c.
Indians also were proceeded against, in many cases by fines, penalties,
and punishments.
John Legge, a servant, was ordered "to be whipt this day [May 3, 1631] at
Boston, and afterwards, so soon as convenient may be, at Salem, for
striking Richard Wright." Richard Hopkins was ordered to be severely
whipped, and branded with a hot iron on one of his cheeks, for selling
guns, powder, and shot to the Indians. Joyce Bradwick was ordered to pay
Alexander Beck twenty dollars for promising marriage without her friends'
consent, and now refusing to perform the same. This was in 1632, and is
undoubtedly the first breach-of-promise case that had occurred in the
colony.
It was ordered if any one deny the Scriptures to be the word of God, to be
fined fifty pounds, or whipped forty stripes; if they recant, to pay ten
pounds, and whipped if they pay not that. A man, who had been punished for
being drunk, was ordered to wear a red D about his neck for a year.
The case of one Knower, at Boston, 1631, is spoken of as curious, showing
that the court, usurper and tyrant as it was, had no intention of being
slighted, underestimated, or intimidated. "Thomas Knower was set in
bilbows for threatening the Court, that if he should be punished, he would
have it tried in England, whether he was lawfully punished or not." And
for this he was punished.
1631.--Philip Radcliffe, for censuring the churches and government, has
his ears cut off, is whipped and banished.
1636.--If any inhabitants entertained strangers over fourteen days,
without leave "from those yt are appointed to order the Town's
businesses," they were made liable to be dealt with by the "overseers"
(before there were selectmen) as they thought advisable.
In 1637, "a law was made 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 religions generally
received in the country, was as great a disqualification as any political
opinions whatever." On this subject Judge Minot says, "Whilst they
scrupulously regulated the morals of the inhabitants within the colony,
they neglected not to prevent the contagion of dissimilar habits and
heretical principles from without.... No man could be qualified either to
elect or be elected to office who was not a church member, and no church
could be formed but by a license from a magistrate."
In 1640, in the case of Josias Plaistow for stealing four baskets of corn
from the Indians, he was ordered to return eight baskets, "to be fined L5,
and to be called Josias, and not Mr. Josias Plaistow, as he formerly used
to be."
A carpenter was employed to make a pair of stocks; and, it being adjudged
that he charged too much for his work, he was sentenced to be put in them
for one hour. A servant, charged with slandering the Church, was whipped,
then deprived of his ears and banished. This punishment was deemed severe,
and excited some remarks upon the subject.
A Capt. Stone was fined one hundred pounds and prohibited from coming into
Boston without the governor's leave on pain of death, for calling Justice
Ludlow a "just-ass." Another party, for being drunk, was sentenced to
carry forty turfs to the fort; while another, being in the company of
drunkards, was set in the stocks.
But finally the Court of Assistants began to make laws, or lay down rules
of some sort. As for example: Every one shall pay a penny sterling for
every time of taking tobacco in any place. In Plymouth Colony the law was
less stringent: there a man was fined five shillings for taking tobacco
while on a jury, before a verdict had been rendered. Absence from church
subjected the delinquent to a fine of ten shillings or imprisonment. Any
one entering into a private conference at a public meeting shall forfeit
twelve pence for public uses. 1642, Mr. Robert Saltonstall is fined five
shillings for presenting his petition on so small and bad a piece of
paper; and this, it seems, was after it had been determined "that a body
of laws should be framed which would be approved of by the General Court
and some of the ministers as a fundamental code." Notwithstanding this, in
all cases, like the above, where there was no law, one was made, or
inferred, to meet the case; so that, after the establishment of a
"fundamental code," there was about as much _ex post facto_ law as before.
Among the laws or orders of the "fundamental code" was one, "that no
person, Householder or others, shall spend his time unprofitably under
paine of such punishment as the court shall think meet to inflict;" and
"the constables were ordered to take knowledge of offenders of this kind,"
and, among others, especially tobacco-takers. Another was, "that no person
either man or woman shall make or buy any slashed clothes, other than one
slash in each sleeve and another in the back; also all cuttworks,
imbroidered or needle workt caps, bands, vayles, are forbidden hereafter
to be made or worn under said penalty--also all gold or silver girdles,
hatbands, belts, ruffs, beaver hats, are prohibited to be bought or worn
hereafter, under the aforesaid penalty," &c. The penalty is such
punishment as the Court may think meet to inflict.
In addition to these, the code went still further in regulating the dress
of women: "4th of 7th month [September, as the year began with March,
until 1752], 1639, Boston. No garments shall be made with short sleeves,
whereby the nakedness of the arm may be discovered in the wearing
thereof;" and, where garments were already made with short sleeves, the
arms to be covered with linen or otherwise. No person was allowed to make
a garment for women with sleeves more than half an ell wide, and "so
proportionate for bigger or smaller persons."
In the matter of currency, it was ordered, in 1634, "that musket balls of
a full boar shall pass currently for farthings apiece, provided that no
man be compelled to take above 12 pence at a time in them."
It would seem that some of these decisions, or the general character of
the government, had caused some remark, as it was "ordered that Henry Lyn
shall be whipt and banished the Plantation before the 6th day of October
next, for writing into England falsely and maliciously against the
government and execution of Justice here." "Execution of justice" is good,
we should say.
Ward, in his "Trip to New England," a very coarse and abusive paper,
published in London, in 1706, in a book called "London Spy," says, in
Boston "if you kiss a woman in publick, tho' offered as a Courteous
Salutation, if any information is given to the Select Members, both shall
be whipt or fined." He relates, that "a captain of a certain ship, who had
been a long voyage, happen'd to meet his wife, and kist her in the street,
for which he was fined Ten Shillings, and forc'd to pay the Money. Another
inhabitant of the town was fin'd Ten Shillings for kissing his own wife in
his Garden, and obstinately refusing to pay the Money, endur'd Twenty
Lashes at the Gun, who, in Revenge for his Punishment, swore he would
never kiss her again either in Publick or Private."
John Dunton, in his famous work, "Dunton's Life and Errors," speaks of the
government, when he was in Boston, in 1686. He says, "Let it be enough to
say, The laws in force here, against immorality and prophaneness, are very
severe. Witchcraft is punish'd with death, as 'tis well known; and theft
with restoring fourfold, if the Criminal be sufficient.--An English woman,
admitting some unlawful freedoms from an Indian, was forc'd twelve months
to wear upon her Right arm an Indian cut in red cloath."
The "Body of Liberties," as it was strangely called, contained an hundred
laws, which had been drawn up pursuant to an order of the General Court,
by Nathaniel Ward, pastor of the church at Ipswich, who had been formerly
a practitioner of law in England; and this book was printed by Daye, the
first printer, at Cambridge in 1641. (Thomas, p. 47.)
There was also published in 1649 a "Book of General Laws and Liberties,
concerning the Inhabitants of Massachusetts." By these, gaming by
shuffle-board and bowling at houses of entertainment, where there was
"much waste of wine and beer," were prohibited under pain for every keeper
of such house twenty shillings, and every person playing at said games,
five shillings. For "damnable heresies," as they were called, banishment
was the appropriate punishment.
Oldmixon mentions a singular law. He says, "The goodness of the pavement
may compare with most in London: to gallop a horse on it is 3 shillings
and four pence forfeit." This was more than a hundred years after the
settlement of the town, and less than forty years before the commencement
of the revolutionary war.
A letter from London, from Edward Howes to his relative, J. Winthrop,
jun., dated April 3, 1632, says, "I have heard divers complaints against
the severity of your government, especially Mr. Endicott's, and that he
shall be sent for over, about cutting off the lunatick man's ears and
other grievances" (Savage's Winthrop, p. 56, vol. 1).
In respect to the levying of fines, Gov. Winthrop, who was accused of not
demanding their payment in some cases, remarked, "that in his judgment, it
were not fit in the infancy of a Commonwealth to be too strict in levying
fines, though severe in other punishments."
It has been well said that "religion and laws were closely intertwined in
the Puritan community; the government felt itself bound to expatriate
every disorderly person, as much as the church was bound to excommunicate
him. They were like a household. They had purchased their territory for a
home; it was no _El Dorado_; it was their Mount of Sion. With immense toil
and unspeakable denials, they had rescued it from the wild woods for the
simple purpose that they might have a place for themselves and their
children to worship God undisturbed. They knew nothing of toleration.
Their right to shut the door against intruders seemed to them as undoubted
and absolute as their right to breathe the air around them."[2]
This is the sum and substance of the Puritan government as long as it
lasted. Under the charter, or without the charter, they made such laws as
they pleased, before or after the occasion. They punished every thing
which they thought to be wrong, or which did not conform to their notions
of propriety or their practice, and this, too, without consistency or
discrimination.
In 1639, Winthrop says, "The people had long desired a body of laws, and
thought their condition very unsafe, while so much power rested in the
discretion of the magistrates. Divers attempts had been made at former
courts, and the matter referred to some of the magistrates and some of the
elders, [the church and state, in such cases, were invariably united,] but
still it came to no effect, for being committed to the care of so many,
whatsoever was done by some, was still disliked or neglected by others."
So that it is doubtful if they ever really had a set of laws that were
relied upon; that limited the discretion of the magistrates, or was ever
reasonably and impartially enforced. If the law failed to be adequate, it
seemed to be proper for the magistrate to make it so; and he not only
supplied the deficiency, but occasionally coined or misconstrued a law for
his purpose. Such a government might well be considered "unsafe."