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Underhill, received into the church all who offered them- chapter selves as candidates. A violent quarrel soon arose; the X. hostile parties took arms; Knolles marched at the head 1641. of his followers, pistol in hand, with a Bible raised on a pole as his standard; Larkham called in aid from the lower settlement; an armed party from Portsmouth came to his assistance; and a court was held, at which Knolles, and Underhill, whose intrigues on behalf of Massachusetts were not unknown, were heavily fined, and ordered to leave Dover. They applied for aid to Massachusetts; and Peters and Bradstreet, appointed commissioners, traveled on foot from Salem to investigate the matter. Just then, to add to the confusion, it was discovered that Knolles had been guilty of incontinence. In the end, both Dover and Portsmouth agreed to submit to the jurisdiction of Massachusetts; on condition, however, that, so far as these towns were concerned, church membership should not be required as a qualification to be freemen, or to sit as representatives in the General Court. Exeter came into the same arrangement the next year. Wheel- 1642. wright removed, in consequence, with some of his adherents, and founded the town of Wells, in Maine. Soon afterward he followed the example of Underhill, and, hav- 1643. ing written a penitential letter, was presently allowed to Dec. 7. return to Massachusetts; a favor extended, on similar 1644. concessions, to several of the refugees at Aquiday or May 29. Rhode Island.

Some friends in England, shortly after the meeting of the Long Parliament, had suggested an application on behalf of Massachusetts to that body. This, at first, had been declined, “on consideration,” says Winthrop, “that, if we should put ourselves under the protection of Parliament, we must then be subject to all such laws as they should make, in which course, though they should intend

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our good, yet it might prove very prejudicial to us.”

_But, at the court at which Bellingham was chosen gov

1641.

1643.

1641. Dec.

ernor, it had been resolved to send commissioners to ne-
gotiate as occasion might offer, and especially to explain
to the friends in England the many recent failures in the
payment of debts. The active Peters, appointed on this
mission, along with Welde, minister of Roxbury, and
Hibbins, one of the assistants, succeeded in obtaining
several contributions for the benefit of the colony. The
younger Winthrop, who visited England in their com-
pany, returned not long after with capital and workmen
for establishing iron works—an enterprise warmly encour-
aged by the General Court, presently set on foot at Brain-
tree and Lynn, and, after some losses, successfully pros-
ecuted. Peters, who had formerly resided in Holland,
had a commission, also, from the governors of Massa-
chusetts and Connecticut to treat with the Dutch West
India Company for the settlement of limits.
From the two drafts above mentioned, that of Ward
being principally followed, a body of fundamental laws
had been compiled and sent to every town, to be first
considered by the magistrates and elders, and then to be
published by the constables, “that if any man saw any
thing to be altered, he might communicate his thoughts
to some of the deputies.” Thus deliberately prepared,
these laws, ninety-eight in number, or one hundred in-
cluding the preamble and conclusion, were at length
formally adopted by the name of “Fundamentals,” or
“Body of Liberties.”
This curious code commences with a general state-
ment of the rights of the inhabitants in seventeen arti-
cles, of which several may now be found embodied in the
Constitution of the United States, and the State Bills
of Rights. One article secures the right of moving out

of the jurisdiction at pleasure—a privilege denied in Vir- chagren ginia, and hitherto much contested in Massachusetts. Another provides that no man shall be compelled to go 1641. out of the jurisdiction upon any offensive war; the exception, however, of “vindictive and defensive wars” left ample stope for military enterprises. All monopolies, except in new inventions for a short time, and all feudal incumbrances on land, are prohibited. Next follow “rights, rules, and liberties concerning judicial proceedings,” forty-one in number. No legal process is to abate for circumstantial errors which do not

prevent the person or the case from being rightly understood. The defendant may set up as many defenses as he pleases—two improvements on the practice of the English courts, subsequently adopted by the English Parliament. Pleaders may be employed, but are not to be paid. Parties to suits are liable to a personal examination—an excellent practice, since laid aside. They may mutually agree whether to refer their case to a jury or to the court. False and malicious plaintiffs are liable to a fine. All criminal cases must be tried at the first court after process is commenced. “No man shall be beaten above forty stripes, nor shall any true gentleman, or any man equal to a gentleman, be punished with whipping, unless his crime be very shameful, and his course of life vicious and profligate.” Torture is prohibited, unless in a capital case, upon a person already convicted upon full proof, and who evidently had a secret accomplice; “then he may be tortured, but not with such tortures as be barbarous and inhuman.” . Barbarous and cruel punishments are prohibited—a prohibition, however, which did not extend to whipping, standing in the pillory, cropping, and other similar inflictions, which the hard manners of those times did not esteem cruel. Two

chapter or three witnesses, or their equivalent, are required in a

capital case. Jurors are to be chosen by the freemen of 1641. the towns. Twenty “liberties, more particularly concerning the freemen,” relate to the civil polity of the colony. The right of superintending the churches is conferred upon the magistrates and General Court—the representatives, it must be recollected, of a constituency of church members. The right to deal with church members “ in a civil way,” without waiting for the action of their particular churches—a point on which there had been some controversy—is expressly vindicated. No church censure can degrade or depose any civil officer—a provision intended, however, not so much for the benefit of the civil power against the churches, as to protect the majority of church members against the members of each particular church. The right of the towns to elect their “prudential” officers, called selectmen, and their deputies to the General Court, and of the body of the freemen to choose annually all magistrates, is specially guarded. The control of all local treasuries is secured to the freemen of the locality, and of the public treasury to the General Court, which has also the pardoning power. Jurors “not clear in their judgments or consciences” may, in open court, consult with any person whom they desire “to resolve or advise” them. No proscription nor custom may prevail to establish anything “morally sinful by the law of God.” “Liberties of women,” in two articles, take from husbands that right over the wife of personal chastisement, which the common law of England allowed. The General Court is authorized to interfere for the benefit of the widow, to whom, at his death, the husband had not left “a competent portion of his estate.”

“Liberties of children,” in four articles, give the eld- coest son a double portion of intestate estates—a Practice borrowed from the Mosaic code, and adopted throughout 1641. New England. Cases of “willful and unreasonable denial of timely marriage”—to which, as respected minors, parental consent was necessary—and of unnatural severity on the part of parents, were to be redressed by the magistrates.

... Liberties of servants,” in four articles, made it lawful to harbor indented servants flying from the tyranny of their masters until the matter could be judicially examined, notice being given to the master and the nearest constable. A faithful and diligent service of seven years entitled the servant to dismissal “not empty-handed;” but servants unfaithful, negligent, and unprofitable to masters who treated them well, were not to be discharged till they had made up for their negligences. A servant maimed or disfigured by his master was entitled to liberty and other recompense. We may notice here incidentally, among other effects of the prevailing financial crisis in the colony, that those who had brought estates with them from England, and had relied on the labor of indented servants, became for the most part impoverished, while some of these very servants, and others of inferior condition, craftsmen or traders, were quite successful in acquiring property, and founded families afterward conspicuous in colonial annals.

“Liberties of foreigners and strangers,” in three articles, limit the hospitalities of the colony to people of other nations “professing the true Christian religion”— rather a narrow limitation, if the judgment of Massachusetts Bay were to be taken as the standard. But sufferers by shipwreck, whether friends or enemies, were to be protected. One of these articles, based on the Mo

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