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of the jurisdiction at pleasure-a privilege denied in Vir- CHAPTER 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 scope 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

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CHAPTER or three witnesses, or their equivalent, are required in a Jurors are to be chosen by the freemen of

capital case. 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 any thing "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."

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"Liberties of children," in four articles, give the eld- CHAPTER est 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

CHAPTER saic code, provides that "there shall never be any bond

X. slavery, villanage, nor captivity among us, unless it be 1641. lawful captives taken in just wars, and such strangers

as willingly sell themselves or are sold unto us, and these shall have all the liberties and Christian usages which the law of God established in Israel requires. This exempts none from servitude who shall be judged thereto by authority." This article gives express sanction to the slave trade, and the practice of holding negroes and Indians in perpetual bondage, anticipating by many years any thing of the sort to be found in the statutes of Virginia or Maryland.

Two articles "of the brute creature" forbid cruelty to domestic animals, and secure the right of pasturage in uninclosed lands to all persons driving cattle.

"Capital laws" inflict the punishment of death on twelve offenses-idolatry, witchcraft, blasphemy, premeditated murder, sudden or passionate murder, poisoning or other guileful murder, two crimes of uncleanness, adultery, man-stealing, perjury in a capital case, and "the treacherously or perfidiously attempting the alteration or subversion" of the fundamental frame of polity adopted by the colony. Each infliction of death is backed by references to the law of Moses. Some of the deputies were very earnest for specific punishments for all minor offenses; but this was zealously, and, for the present, successfully opposed by the magistrates, who insisted upon a discretion on those points.

The fundamentals conclude with a declaration of "the liberties which the Lord Jesus has given to the churches." But the strict union between church and state, and the despotic authority assumed by the aggregate of the church members, as represented by the magistrates and deputies, reduced the liberties of the individual churches

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within very narrow limits. Almost every clause in CHAPTER this section is burdened with a qualification which destroys its force.. "Every church hath free liberty of 1641. election and ordination of all their officers, provided they be able, pious, and orthodox." "We allow private meetings for edification in religion among Christians of all sorts of people, so it be without just offense for number, time, place, and other circumstances." The polity of Massachusetts conferred, in fact, unlimited power in matters of religion, as in every thing else, upon the majority of the church members, as represented by the magistrates and General Court. Those in the minority, whether churches or individuals, had no rights and no alternative but silence and submission, or withdrawal from the colony.

Bellingham's administration was a good deal disturbed by contentions between him and the other magistrates. He got into difficulty, also, with the deputies, who gave him a "solemn admonition" for having presumed to alter, without authority from the court, the amount of a fine which had been imposed. The curious circumstances of his second marriage brought him also into collision with the law. The bride was a young lady about to be engaged to a young friend of the governor, who had promoted the match; but all of a sudden overcome, as he alleged, by "the strength of his affection," Bellingham proposed on his own account. The lady accepted, and, without waiting to conform to the publishment law, the governor, by virtue of his authority as a magistrate, performed the marriage ceremony himself!

At the next election Winthrop was again chosen gov- 1642. ernor, notwithstanding the efforts of Speaker Hathorne May. to have him left out of the magistracy altogether, under pretense of the poverty to which his recent losses had