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CHAPTE R x II.
NEW ENGLAND DURING THE COMMONWEALTH.
chool, Though satisfied with the fundamental laws as far
as they went, the freemen of Massachusetts had continued still jealous of magisterial discretion, and anxious for a complete code, a specific punishment for every offense, and the publication of all laws by which they were bound. The magistrates, on the other hand, desired a certain judicial discretion. But they had found themselves obliged to yield; and a commission, consisting of two magistrates, two ministers, and two able persons from among the people in each county, had been appointed for compiling a code. Being finished, and alphabetically arranged, this code was printed—a very hazardous experiment, as the magistrates thought. But the advantages and convenience of this publicity were so obvious, that all the subsequent laws were from time to time printed. No copy of this code is known to be in existence; but we are not altogether ignorant of its contents. It increased the list of capital crimes by subjecting to the penalty of death “stubborn and rebellious sons,” and “children above sixteen who curse or smite their natural father or mother” —enactments borrowed from the Jewish law. Rape was also made capital—a provision formerly omitted, because Moses had not so punished it. The sale of intoxicating liquors was restricted to certain persons licensed for that purpose. Courtship attempted without the permission of the maid's parents or guardians, or, in their absence, of the “nearest magistrate,” was punished with fine, and chosen the third offense with imprisonment. It was also deemed necessary to support, by civil penalties, the fundament- 1649. al doctrines on which the theocracy rested. “Albeit faith is not wrought by the sword, but the word, nevertheless, seeing that blasphemy of the true God can not be excused by any ignorance or infirmity of human nature,” therefore “no person in this jurisdiction, whether Christian or pagan, shall wittingly and willingly presume to blaspheme his holy name, either by willful or obstinate
denying the true God, or his creation or government of the world, or shall curse God, or reproach the holy religion of God, as if it were but a public device to keep ignorant men in awe, rior shall utter any other eminent kind of blasphemy of like nature or degree,” under penalty of death. This enactment, with some modification in its terms and relaxation of the punishment, is still to be found in the Massachusetts statute-book. It has lately been held to be constitutional by the Supreme Court of that state, upon argument in a contested case, notwithstanding an express provision in the Massachusetts Bill of Rights that no person shall be molested for his religious profession or sentiments. Constitutions, indeed, go for very little when in conflict with the hereditary sentiments of their expositors. “Although no human power be lord, over the faith and consciences of men, yet because such as bring in damnable heresies, tending to the subversion of the Christian faith and destruction of the souls of men, ought duly to be restrained from such notorious impieties,” therefore “any Christian within this jurisdiction who shall go about to subvert or destroy the Christian faith and religion by broaching and maintaining any damnable heresies, as denying the immortality of the soul, or resurrecI. A. A
corn tion of the body, or any sin to be repented of in the regenerate, or any evil done by the outward man to be ac1649. counted sin, or denying that Christ gave himself a ransom for our sins, or shall affirm that we are not justified by his death and righteousness, but by the perfections of our own works, or shall deny the morality of the fourth commandment, or shall openly condemn or oppose the baptizing of infants, or shall purposely depart the congregation at the administration of that ordinance, or shall deny the ordinance of magistracy, or their lawful authority to make war, or to punish the outward breaches of the first table, or shall endeavor to seduce others to any of the errors and heresies above mentioned,” any such was liable to banishment. Jesuits were forbidden to enter the colony, and their second coming was punishable with death. Another law, a few years after, subjected to fine, whipping, banishment, and finally to death, “any who denied the received books of the Old and New Testament to be the infallible word of God.” This statute, also with some modifications in the terms and the punishment, is still in force in Massachusetts—constitutional, no doubt, according to the legal authority above cited. As another and certainly far preferable means of guarding against religious error, this code gave a legal establishment to a system of free schools, already introduced into several of the towns. “It being one chief project of that old deluder Sathan,” says the preamble to this venerable law, “to keep men from the knowledge of the Scriptures, as in former times keeping them in an unknown tongue, so in these latter times by persuading men from the use of tongues, so that, at least, the true sense and meaning of the original might be clouded with false glosses of - saint-seeming deceivers, and that learning may not be buried in the grave of our fathers,” therefore every township was required to maintain a charten school for reading and writing, and every town of a xii. hundred householders a grammar school, with a teach- 1649. er qualified “to fit youths for the university.” This school law, re-enacted in Connecticut in the very same terms, was adopted also by Plymouth and New Haven. Unfortunately for the credit and success of Williams's system of religious freedom, it found no favor in his colony. Of the exiles from Massachusetts who resorted thither, many, indeed, were despisers of human learning, inclined to rest the interpretation of Scripture upon special personal spiritual enlightenment—doubtless the very “saint-seeming deceivers” aimed at in the preamble to the Massachusetts act. With the deaths of Winthrop and Dudley, and the firm establishment of the policy for which they had so zealously contended, seems to have terminated that struggle in favor of rotation in office, hitherto an obvious feature in the politics of Massachusetts. Their mantles devolved on Endicott, and, with the exception of a single term, during which Bellingham held the office, he was annually re-elected as governor for the fourteen years following. He and his two immediate successors died in office. A code for Connecticut, compiled by Ludlow, and 1650. adopted by the General Court, was copied, much of it in very words, from the code of Massachusetts. To the Massachusetts list of capital offenses the Connecticut code added house-breaking, and robbery on the third of. fense. Simple larceny was punished as in Massachusetts, by requiring threefold restitution; forgery by double restitution, standing in the pillory, and disability to give evidence or to act as a juror. It was forbidden to take tobacco publicly. Strong waters could not be sold with
chapTER out a license. ... The magistrates were invested with dis_" cretionary powers for the punishment of licentiousness— 1650. powers exercised with great rigor. Debtors could not be imprisoned except when suspected of concealing property, as to which both the debtors themselves and all persons charged as colluding with them were liable to be examined under oath. The debtor was bound, if the creditor required it, to pay his debt by service, and might be sold for that purpose, but not “to any but of the English nation.” This law for selling the service of debtors, and appropriating the proceeds to the payment of their debts, remained in force in Connecticut even within the present century. Runaway servants were to be pursued at the public expense, and were required to make up threefold the time of their absence. On the subject of the Indians this code exhibits much anxiety. The militia law is full and precise. Every town is to have a store of powder, and on Sundays and lecture days to be furnished with an armed guard, to prevent sudden surprises. Trade with the Indians in arms of any kind, or in dogs, is strictly forbidden. White men leaving the colony and joining the Indians are liable to three years' imprisonment. Every band of Indians resident near any plantation is to have some sachem or chief to be personally responsible for all depredations committed by the band; and, in conformity with a recommendation of the Commissioners for the United Colonies, if satisfaction for injuries is refused or neglected, the Indians themselves may be seized; “and, because it will be chargeable keeping them in prison,” they may be delivered to the injured party “either to serve, or to be shipped out and exchanged for negroes, as the case will justly bear.” It thus appears that negro slavery was authorized in Connecticut as well as in Massachu