The Emancipation of Massachusetts

Sir Richard Sheldon, the solicitor-general, advised the king that he was signing a charter containing “such … clauses for ye electing of Governors and Officers here in England, … and powers to make lawes and ordinances for setling ye governement and magistracye for ye plantacon there, … as … are usuallie allowed to Corporacons in England.” [Footnote: Mass. Hist. Soc. Proc. 1869-70, p. 173.] And there can be no question that his opinion was sound.

Nothing can be imagined more ill-suited to serve as the organic law of a new commonwealth than this instrument. No provision was made for superior or probate courts, for a representative assembly, for the incorporation of counties and towns, for police or taxation. In short, hardly a step could be taken toward founding a territorial government based upon popular suffrage without working a forfeiture of the charter by abuse of the franchise. The colonists, it is true, afterward advanced very different theories of construction; but that they were well aware of their legal position is demonstrated by the fact that after some hesitation from apprehension of consequences, they ventured on the singularly bold and lawless measure of secretly removing their charter to America and establishing their corporation in a land which they thought would be beyond the process of Westminster Hall. [Footnote: 1629, Aug. 29.] The details of the settlement are related in many books, and require only the briefest mention here. In 1628 an association of gentlemen bought the tract of country lying between the Merrimack and Charles from the Council of Plymouth, and sent Endicott to take charge of their purchase. A royal patent was, however, thought necessary for the protection of a large colony, and one having been obtained, the Company of Massachusetts Bay was at once organized in England, Endicott was appointed governor in America, and six vessels sailed during the spring of 1629, taking out several hundred persons and a “plentiful provision of godly ministers.” In August the church of Salem was gathered and Mr. Higginson was consecrated as their teacher. In that same month Winthrop, Saltonstall, and others met at Cambridge and signed an agreement binding themselves upon the faith of Christians to embark for the plantation by the following March; “Provided always that before the last of September next, the whole government, together with the patent, … be first by an order of court legally transferred and established to remain with us and others which shall inhabite upon the said plantation.” [Footnote: Hutch. Coll., Prince Soc. ed. i. 28.] The Company accepted the proposition, Winthrop was chosen governor, and he anchored in Salem harbor in June. [Footnote: 1630] More than a thousand settlers landed before winter, and the first General Court was held at Boston in October; nor did the emigration thus begun entirely cease until the meeting of the Long Parliament.

From the beginning the colonists took what measures they thought proper, without regarding the limitations of the law. Counties and towns had to be practically incorporated, taxes were levied upon inhabitants, and in 1634 all pretence of a General Court of freemen was dropped, and the towns chose delegates to represent them, though the legislature was not divided into two branches until ten years later. When the government had become fully organized supreme power was vested in the General Court, a legislature composed of two houses; the assistants, or magistrates, as they were called, and the deputies. The governor, deputy governor, and assistants were elected by a general vote; but each town sent two deputies to Boston.

For some years justice was dispensed by the magistrates according to the Word of God, but gradually a judicial system was established; the magistrate’s local court was the lowest, from whence causes went by appeal to the county courts, one of whose judges was always an assistant, and probate jurisdiction was given to the two held at Ipswich and at Salem. From the judgments entered here an appeal lay to the Court of Assistants, and then to the General Court, which was the tribunal of last resort. The clergy and gentry pertinaciously resisted the enactment of a series of general statutes, upon which the people as steadily insisted, until at length, in 1641, “The Body of Liberties” was approved by the legislature. This compilation was the work of the Rev. Mr. Ward, pastor of Ipswich, and contained a criminal code copied almost word for word from the Pentateuch, but apart from matters touching religion, the legislation was such as English colonists have always adopted. A major-general was elected who commanded the militia, and in 1652 money was coined.

The social institutions, however, have a keener interest, for they reflect that strong cast of thought which has stamped its imprint deep into the character of so much of the American people. The seventeenth century was aristocratic, and the inhabitants of the larger part of New England were divided into three classes, the commonalty, the gentry, and the clergy. Little need be said of the first, except that they were a brave and determined race, as ready to fight as Cromwell’s saints, who made Rupert’s troopers “as stubble to their swords;” that they were intelligent, and would not brook injustice; and that they were resolute, and would not endure oppression. All know that they were energetic and shrewd.

The gentry had the weight in the community that comes with wealth and education, and they received the deference then paid to birth, for they were for the most part the descendants of English country-gentlemen. As a matter of course they monopolized the chief offices; and they were not sentenced by the courts to degrading punishments, like whipping, for their offences, as other criminals were. They even showed some wish at the outset to create legal distinctions, such as a magistracy for life, and a disposition to magnify the jurisdiction of the Court of Assistants, whose seats they filled; but the action of the people was determined though quiet, a chamber of deputies was chosen, and such schemes were heard of no more.

Yet notwithstanding the existence of this aristocratic element, the real substance of influence and power lay with the clergy. It has been taught as an axiom of Massachusetts history, that from the outset the town was the social and political unit; but an analysis of the evidence tends to show that the organization of the Puritan Commonwealth was ecclesiastical, and the congregation, not the town, the basis upon which the fabric rested. By the constitution of the corporation the franchise went with the freedom of the company; but in order to form a constituency which would support a sacerdotal oligarchy, it was enacted in 1631 “that for time to come noe man shalbe admitted to the freedome of this body polliticke, but such as are members of some of the churches within … the same.” [Footnote: Mass. Records, i. 87.] Thus though communicants were not necessarily voters, no one could be a voter who was not a communicant; therefore the town-meeting was in fact nothing but the church meeting, possibly somewhat attenuated, and called by a different name. By this insidious statute the clergy seized the temporal power, which they held till the charter fell. The minister stood at the head of the congregation and moulded it to suit his purposes and to do his will; for though he could not when opposed admit an inhabitant to the sacrament, he could peremptorily exclude therefrom all those of whom he disapproved, for “none are propounded to the congregation, except they be first allowed by the elders.” [Footnote: Winthrop’s reply to Vane, Hutch. Coll., Prince Soc. ed. i. 101.] In such a community the influence of the priesthood must have been overwhelming. Not only in an age without newspapers or tolerable roads were their sermons, preached several times each week to every voter, the most effective of political harangues; but, unlike other party orators, they were not forced to stimulate the sluggish, or to convince the hostile, for from a people glowing with fanaticism, each elder picked his band of devoted servants of the church, men passionately longing to do the will of Christ, whose commands concerning earth and heaven their pastor had been ordained to declare. Nor was their power bounded by local limits; though seldom holding office themselves, they were solemnly consulted by the government on every important question that arose, whether of war or peace, and their counsel was rarely disregarded. They gave their opinion, no matter how foreign the subject might be to their profession or their education; and they had no hesitation in passing upon the technical construction of the charter with the authority of a bench of judges. An amusing example is given by Winthrop: “The General Court assembled again, and all the elders were sent for, to reconcile the differences between the magistrates and deputies. When they were come the first question put to them was, … whether the magistrates are, by patent and election of the people, the standing council of this commonwealth in the vacancy of the General Court, and have power accordingly to act in all cases subject to government, according to the said patent and the laws of this jurisdiction; and when any necessary occasions call for action from authority, in cases where there is no particular express law provided, there to be guided by the word of God, till the General Court give particular rules in such cases. The elders, having received the question, withdrew themselves for consultation about it, and the next day sent to know, when we would appoint a time that they might attend the court with their answer. The magistrates and deputies agreed upon an hour “and … their answer was affirmative,” on the magistrates behalf, in the very words of the question, with some reasons thereof. It was delivered in writing by Mr. Cotton in the name of them all, they being all present, and not one dissentient.” Then the magistrates propounded four more questions, the last of which is as follows: “Whether a judge be bound to pronounce such sentence as a positive law prescribes, in case it be apparently above or beneath the merit of the offence?” To which the elders replied at great length, saying that the penalty must vary with the gravity of the crime, and added examples: “So any sin committed with an high hand, as the gathering of sticks on the Sabbath day, may be punished with death when a lesser punishment may serve for gathering sticks privily and in some need.” [Footnote: Winthrop, ii. 204, 205.] Yet though the clerical influence was so unbounded the theocracy itself was exposed to constant peril. In monarchies such as France or Spain the priests who rule the king have the force of the nation at command to dispose of at their will; but in Massachusetts a more difficult problem was presented, for the voters had to be controlled. By the law requiring freemen to be church-members the elders meant to grasp the key to the suffrage, but experience soon proved that more stringent regulation was needed.

According to the original Congregational theory each church was complete and independent, and elected its own officers and conducted its own worship, free from interference from without, except that others of the same communion might offer advice or admonition. Under the theocracy no such loose system was possible, for heresy might enter in three different ways; first, under the early law, “blasphemers” might form a congregation and from thence creep into the company; second, an established church might fall into error; third, an unsound minister might be chosen, who would debauch his flock by securing the admission of sectaries to the sacrament. Above all, a creed was necessary by means of which false doctrine might be instantly detected and condemned. Accordingly, one by one, as the need for vigilance increased, laws were passed to guard these points of danger.

First, in 1635 it was enacted, [Footnote: 1635-6, March 3.] “Forasmuch as it hath bene found by sad experience, that much trouble and disturbance hath happened both to the church & civill state by the officers & members of some churches, which have bene gathered … in an vndue manner … it is … ordered that … this Court doeth not, nor will hereafter, approue of any such companyes of men as shall henceforthe ioyne in any pretended way of church fellowshipp, without they shall first acquainte the magistrates, & the elders of the greater parte of the churches in this jurisdiction, with their intenctions, and have their approbaction herein. And ffurther, it is ordered, that noe person, being a member of any churche which shall hereafter be gathered without the approbaction of the magistrates, & the greater parte of the said churches, shallbe admitted to the ffreedome of this commonwealthe.” [Footnote: Mass. Rec. i. 168.]

In 1648 all the elders met in a synod at Cambridge; they adopted the Westminster Confession of Faith and an elaborate “Platform of Church Discipline,” the last clause of which is as follows: “If any church … shall grow schismatical, rending itself from the communion of other churches, or shall walk incorrigibly and obstinately in any corrupt way of their own contrary to the rule of the word; in such case the magistrate, … is to put forth his coercive power, as the matter shall require.” [Footnote: Magnalia, bk. 5, ch. xvii. Section 9.]

In 1658 the General Court declared: “Whereas it is the duty of the Christian magistrate to take care the people be fed with wholesome & sound doctrine, & in this houre of temptation, … it is therefore ordered, that henceforth no person shall … preach to any company of people, whither in church society or not, or be ordeyned to the office of a teaching elder, where any two organnick churches, councill of state, or Generall Court shall declare theire dissatisfaction thereat, either in refference to doctrine or practize… and in case of ordination… timely notice thereof shall be given unto three or fower of the neighbouring organicke churches for theire approbation.” [Footnote: Mass. Rec. iv. pt. 1, p. 328.] And lastly, in 1679, the building of meeting-houses was forbidden, without leave from the freemen of the town or the General Court. [Footnote: Mass. Rec. v. 213.]

But legislation has never yet controlled the action of human thought. All experience shows that every age, and every western nation, produces men whose nature it is to follow the guidance of their reason in the face of every danger. To exterminate these is the task of religious persecution, for they can be silenced only by death. Thus is a dominant priesthood brought face to face with the alternative, of surrendering its power or of killing the heretic, and those bloody deeds that cast their sombre shadow across the history of the Puritan Commonwealth cannot be seen in their true bearing unless the position of the clergy is vividly before the mind.

Cromwell said that ministers were “helpers of, not lords over, God’s people,” [Footnote: Cromwell to Dundass, letter cxlviii. Carlyle’s Cromwell, iii. 72.] but the orthodox New Englander was the vassal of his priest. Winthrop was the ablest and the most enlightened magistrate the ecclesiastical party ever had, and he tells us that “I honoured a faithful minister in my heart and could have kissed his feet.” [Footnote: Life and Letters of Winthrop, i. 61.] If the governor of Massachusetts and the leader of the emigration could thus describe his moral growth,—a man of birth, education, and fortune, who had had wide experience of life, and was a lawyer by profession,—the awe and terror felt by the mass of the communicants can be imagined.

Jonathan Mitchel, one of the most famous of the earlier divines, thus describes his flock: “They were a gracious, savoury-spirited people, principled by Mr. Shepard, liking an humbling, mourning, heart-breaking ministry and spirit; living in religion, praying men and women.” And “he would speak with such a transcendent majesty and liveliness, that the people … would often shake under his dispensations, as if they had heard the sound of the trumpets from the burning mountain, and yet they would mourn to think, that they were going presently to be dismissed from such an heaven upon earth.” … “When a publick admonition was to be dispensed unto any one that had offended scandalously… the hearers would be all drowned in tears, as if the admonition had been, as indeed he would with much artifice make it be directed unto them all; but such would be the compassion, and yet the gravity, the majesty, the scriptural and awful pungency of these his dispensations, that the conscience of the offender himself, could make no resistance thereunto.” [Footnote: Magnalia, bk. 4, ch. iv. Sub-section 9, 10.]

Their arrogance was fed by the submission of the people, and they would not tolerate the slightest opposition even from their most devoted retainers. The Reforming Synod was held in 1679. “When the report of a committee on ‘the evils that had provoked the Lord’ came up for consideration, ‘Mr. Wheelock declared that there was a cry of injustice in that magistrates and ministers were not rated’ (taxed), ‘which occasioned a very warm discourse. Mr. Stodder’ (minister of Northampton) ‘charged the deputy with saying what was not true, and the deputy governor’ (Danforth) ‘told him he deserved to be laid by the heels, etc.’

“‘After we broke up, the deputy and several others went home with Mr. Stodder, and the deputy asked forgiveness of him and told him he freely forgave him, but Mr. Stodder was high.’ The next day ‘the deputy owned his being in too great a heat, and desired the Lord to forgive it, and Mr. Stodder did something, though very little, by the deputy.’” [Footnote: Palfrey’s History of New England, in. 330, note 2. Extract from Journal of Rev. Peter Thacher.] Wheelock was lucky in not having to smart more severely for his temerity, for the unfortunate Ursula Cole was sentenced to pay £5 [Footnote: Five pounds was equivalent to a sum between one hundred and twenty-five and one hundred and fifty dollars now. Ursula was of course poor, or she would not have been sentenced to be whipped. The fine was therefore extremely heavy.] or be whipped for the lighter crime of saying “she had as lief hear a cat mew” [Footnote: Frothingham, History of Charlestown, p. 208.] as Mr. Shepard preach. The daily services in the churches consumed so much time that they became a grievance with which the government was unable to cope.

In 1633 the Court of Assistants, thinking “the keepeing of lectures att the ordinary howres nowe obserued in the forenoone, to be dyvers wayes preiudiciall to the common good, both in the losse of a whole day, & bringing other charges & troubles to the place where the lecture is kept,” ordered that they should not begin before one o’clock. [Footnote: Mass. Rec. i. 110.] The evil still continued, for only the next year it was found that so many lectures “did spend too much time and proved overburdensome,” and they were reduced to two a week. [Footnote: Felt’s Eccl. Hist. i. 201.] Notwithstanding these measures, relief was not obtained, because, as the legislature complained in 1639, lectures “were held till night, and sometimes within the night, so as such as dwelt far off could not get home in due season, and many weak bodies could not endure so long, in the extremity of the heat or cold, without great trouble and hazard of their health,” [Footnote: Winthrop, i. 324.] and a consultation between the elders and magistrates was suggested.

But to have the delights of the pulpit abridged was more than the divines could bear. They declared roundly that their privileges were invaded; [Footnote: Idem, i. 325.] and the General Court had to give way. A few lines in Winthrop’s Journal give an idea of the tax this loquacity must have been upon the time of a poor and scattered people. “Mr. Hooker being to preach at Cambridge, the governor and many others went to hear him.... He preached in the afternoon, and having gone on, with much strength of voice and intention of spirit, about a quarter of an hour, he was at a stand, and told the people that God had deprived him both of his strength and matter, &c. and so went forth, and about half an hour after returned again, and went on to very good purpose about two hours.” [Footnote: Winthrop, i. 304.] Common men could not have kept this hold upon the inhabitants of New England, but the clergy were learned, resolute, and able, and their strong but narrow minds burned with fanaticism and love of power; with their beliefs and under their temptations persecution seemed to them not only their most potent weapon, but a duty they owed to Christ—and that duty they unflinchingly performed. John Cotton, the most gifted among them, taught it as a holy work: “But the good that is brought to princes and subjects by the due punishment of apostate seducers and idolaters and blasphemers is manifold.

“First, it putteth away evill from the people and cutteth off a gangreene, which would spread to further ungodlinesse....

“Secondly, it driveth away wolves from worrying and scattering the sheep of Christ. For false teachers be wolves, … and the very name of wolves holdeth forth what benefit will redound to the sheep, by either killing them or driving them away.

“Thirdly, such executions upon such evill doers causeth all the country to heare and feare, and doe no more such wickednesse.... Yea as these punishments are preventions of like wickednesse in some, so are they wholesome medicines, to heale such as are curable of these eviles....

“Fourthly, the punishments executed upon false prophets and seducing teachers, doe bring downe showers of God’s blessings upon the civill state....

“Fifthly, it is an honour to God’s Justice that such judgments are executed....” [Footnote: Bloody Tenent Washed, pp. 137, 138.]

All motives combined to drive them headlong into cruelty; for in the breasts of the larger number, even the passion of bigotry was cool beside the malignant hate they felt for those whose opinions menaced their earthly power and dominion; and they never wearied of exhorting the magistrates to destroy the enemies of the church. “Men’s lusts are sweet to them, and they would not be disturbed or disquieted in their sin. Hence there be so many such as cry up tolleration boundless and libertinism so as (if it were in their power) to order a total and perpetual confinement of the sword of the civil magistrate unto its scabbard; (a notion that is evidently distructive to this people, and to the publick liberty, peace, and prosperity of any instituted churches under heaven.)” [Footnote: Eye Salve, Election Sermon, by Mr. Shepard of Charlestown, p. 21.] “Let the magistrates coercive power in matters of religion (therefore) be still asserted, seing he is one who is bound to God more than any other men to cherish his true religion; … and how wofull would the state of things soon be among us, if men might have liberty without controll to profess, or preach, or print, or publish what they list, tending to the seduction of others.” [Footnote: Eye Salve, p. 38.] Such feelings found their fit expression in savage laws against dissenting sects; these, however, will be dealt with hereafter; only those which illustrate the fundamental principles of the theocracy need be mentioned here. One chief cause of schism was the hearing of false doctrine; and in order that the people might not be led into temptation, but might on the contrary hear true exposition of the word, every inhabitant was obliged to attend the services of the established church upon the Lord’s day under a penalty of fine or imprisonment; the fine not to exceed 5s. (equal to about $5 now) for every absence. [Footnote: 1634-35, 4 March. Mass. Rec. i. 140.]

“If any Christian so called … shall contemptuously behave himselfe toward ye word preached, or ye messengers thereof called to dispence ye same in any congregation, … or like a sonn of Corah cast upon his true doctrine or himselfe any reproach … shall for ye first scandole be convented … and bound to their good behaviour; and if a second time they breake forth into ye like contemptuous carriages, either to pay £5 to ye publike treasury or to stand two houres openly upon a block 4 foote high, on a lecture day, with a pap fixed on his breast with this, A Wanton Gospeller, written in capitall letters ye others may fear & be ashamed of breaking out into the like wickednes.” [Footnote: 1646, 4 Nov. Mass. Rec. ii. 179.]

“Though no humane power be Lord over ye faith & consciences of men and therefore may not constraine ym to beleeve or profes against their conscience, yet because such as bring in damnable heresies tending to ye subversion of ye Christian faith … ought duely to be restrained from such notorious impiety, if any Christian … shall go about to subvert … ye Christian faith, by broaching … any damnable heresy, as deniing ye immortality of ye soule, or ye resurrection of ye body, or any sinn to be repented of in ye regenerate, or any evill done by ye outward man to be accounted sinn, or deniing yt Christ gave himselfe a ransome for or sinns … or any other heresy of such nature & degree … shall pay to ye common treasury during ye first six months 20s. a month and for ye next six months 40s. p. m., and so to continue dureing his obstinacy; and if any such person shall endeavour to seduce others … he shall forfeit … for every severall offence … five pounds.” [Footnote: 1646, 4 Nov. Mass. Rec. ii. 177.]

“For ye honnor of ye aetaernall God, whome only wee worshippp and serve,” (it is ordered that) “no person within this jurisdiction, whether Christian or pagan, shall wittingly and willingly presume to blaspheme his holy name either by wilfull or obstinate denying ye true God, or reproach ye holy religion of God, as if it were but a polliticke devise to keepe ignorant men in awe, … or deny his creation or gouvernment of ye world, or shall curse God, or shall vtter any other eminent kind of blasphemy, of ye like nature and degree; if any person or persons whatsoeuer within our jurisdiction shall breake this lawe they shall be putt to death.” [Footnote: Mass. Rec. iii.98.]

The special punishments for Antinomians, Baptists, Quakers, and other sectaries were fine and imprisonment, branding, whipping, mutilation, banishment, and hanging. Nor were the elders men to shrink from executing these laws with the same ferocious spirit in which they were enacted. Remonstrance and command were alike neglected. The Long Parliament warned them to beware; Charles II. repeatedly ordered them to desist; their trusted and dearest friend, Sir Richard Saltonstall, wrote from London to Cotton: “It doth not a little grieve my spirit to heare what sadd things are reported dayly of your tyranny and persecution in New England, as that you fyne, whip, and imprison men for their consciences,” [Footnote: Hutch. Coll., Prince Soc. ed. ii. 127.] and told them their “rigid wayes have laid you very lowe in the hearts of the saynts.” Thirteen of the most learned and eminent nonconforming ministers in England wrote to the governor of Massachusetts imploring him that he and the General Court would not by their violence “put an advantage into the hands of some who seek pretences and occasions against our liberty.” [Footnote: Magnalia, bk. 7, ch. iv. section 4.] Winthrop, the wisest and ablest champion the clergy ever had, hung back. Like many another political leader, he was forced by his party into measures from which his judgment and his heart recoiled. He tells us how, on a question arising between him and Mr. Haynes, the elders “delivered their several reasons which all sorted to this conclusion, that strict discipline, both in criminal offences and in martial affairs, was more needful in plantations than in a settled state, as tending to the honor and safety of the gospel. Whereupon Mr. Winthrop acknowledged that he was convinced that he had failed in over much lenity and remissness, and would endeavor (by God’s assistance) to take a more strict course thereafter.” [Footnote: Winthrop, i. 178.] But his better nature revolted from the foul task and once more regained ascendancy just as he sunk in death. For while he was lying very sick, Dudley came to his bedside with an order to banish a heretic: “No,” said the dying man, “I have done too much of that work already,” and he would not sign the warrant. [Footnote: Life and Letters of Winthrop, ii. 393.]

Nothing could avail, for the clergy held the state within their grasp, and shrank from no deed of blood to guard the interests of their order.

The case of Gorton may serve as an example of a rigor that shocked even the Presbyterian Baillie; it must be said in explanation of his story that the magistrates condemned Gorton and his friends to death for the crime of heresy in obedience to the unanimous decision of the elders, [Footnote: Winthrop, ii. 146.] but the deputies refusing to concur, the sentence of imprisonment in irons during the pleasure of the General Court was agreed upon as a compromise. “Only they in New England are more strict and rigid than we, or any church, to suppress, by the power of the magistrate, all who are not of their way, to banishment ordinarily and presently even to death lately, or perpetual slavery; for one Jortin, sometime a famous citizen here for piety, having taught a number in New England to cast oft the word and sacrament, and deny angels and devils, and teach a gross kind of union with Christ in this life, by force of arms was brought to New Boston, and there with ten of the chief of his followers, by the civil court was discerned perpetual slaves, but the votes of many were for their execution. They lie in irons, though gentlemen; and out of their prison write to the admiral here, to deal with the parliament for their deliverance.” [Footnote: Baillie’s Letters, ii. 17, 18.]