CHAPTER THIRTEEN The Laws and Liberties QfMassaehusetts

Certainly the rarest book of the common law is The Book of the General Lawes and Libertyes Concerning the Inhabitants of the Massaehusets, published 1648. There is only one known copy extant.

The circumstances surrounding its compiling and publication have an intrinsic interest for the historian of American legal institutions.¹ What re­quires immediate emphasis is that the Lawes and Libertyes was not a code. What it was clearly reflected the constitutional framework within which it developed and the political-legal theory which underlay the promulgation of law in the Massachusetts Bay Colony from its settlement in 1630 to the publication of 1648.

The “City upon a Hill” which the founders of the Bay Colony estab­lished has been variously called a Godly Commonwealth, a Bible Com­monwealth, and a Puritan Commonwealth. Each term is at least partially correct. However, recent scholarship has stressed the dissimilarity of Mas­sachusetts congregationalism to Old England's puritanism with its strenu­ously presbyterian polity and has placed in a much-reduced perspective the role of Scripture as a source of law and foundation for political practice in early Massachusetts. Accepting, then, that Godly Commonwealth is the most useful term, nonetheless the emphasis is on the word common­wealth. In seventeenth century usage, commonwealth admitted of a number of meanings, some subversive of the strongly monarchical polity which was the accepted mode of European government.

A recent scholar of early modern European republicanism has given us a succinct definition of it, drawn from his own profound study of Venetian republicanism:

A true republic was in the first place a particular power, not a participant in a universal system directed by some superior authority; and it claimed the right to determine its own policies simply on the basis of its particular interest. Nor was its internal structure, in the medieval sense, systematic. It was directed not to a single end from above, by a prince, but by a body of citizens, who some­how represented the community and its interests, and who were related to one another by a principle very different from that of hierarchy.²

Everything that Professor William Bouwsma says here about Venetian republicanism is equally descriptive of the Massachusetts Bay common­wealth.

When the first lawyer to practice in Massachusetts returned to England in 1641 after a three years' sojourn in practice in the colony, he published a penetrating pamphlet on the errors and infirmities of the governors of the colony. He freely conceded that, “wiser men than they, going into a wildernesse to set up another strange government differing from the setled government here [England], might have falne into greater errors then they have done.”⁴ What worried Thomas Lechford, solicitor, was the patently republican and congregational tone of state and church in New England. As he had written before his departure,

I thank God, now I understand by experience, that there is no such govern­ment for English men, or any Nation, as a Monarchy; nor for Christians, as by a lawfull Ministerie, under godly Diocesan Bishops, deducing their station and calling from Christ and his Apostles, in descent or succession.⁵

Lechford argued that there were four types of civil government paralleling four types of ecclesiastical polity.

ι) “Monarchicall absolute without laws”—tyranny

“Episcopall absolute”—“Popish” tyranny

2) “Monarchicall bounded by Lawes”—English monarchy “Episcopall regulated by just Lawes”—the Church of England

3) “Aristocraticall”—as the Long Parliament seemed to advance “Presbyterian”—as the mainline Puritans in England demanded

4) “Democraticall”—as in New England

“Congregationall”—as in New England.⁶

Lechford’s preference was clearly for the second type of civil govern­ment. He had had too much of the fourth in Boston, and he was suspicious of the third, seeing it as basically inimical to the second. Events were to prove him right in a matter of only a few years: Aristocraticall-Presbyterian would work the destruction of English monarchy and episcopalianism, and in turn would fall to Democraticall-Congregationall polity. By the 1650’s, under Cromwell’s rule, Old England would be largely indistinguishable from New.

It should not surprise us, then, that there is not a single reference any­where in the Lawes and Libertyes to the King, monarchy, the realm, or any other term of regality. From title-page to the oath for viewers of pipestaves, there is nothing that would indicate that the Bay colonists were subjects of Charles I. None of the oaths of office bound the officer to any allegiance beyond that to the “Commonwealth” or the “Jurisdiction.”⁷ Of Indians, the book explains, “divers of them are become subjects to the English”—which is a very strange way to speak of a king’s subjects.⁸ That royal prerogative of a whale or great fish cast up on shore is saved to such order as the General Court shall make, but without a word that under English law it was the King’s trove.⁹ The only citation to any institution beyond the Bay is that to the “High Court of Parliament in England” in the Proheme. Such silence is deafening.

The reluctance of the Bay Colony’s founders to acknowledge the au­thority of the King as a matter of style and regularity of usage was po­tentially dangerous. The risk was not so much that it invited the descent of the King’s wrath upon his contemptuous subjects—after 1640, Charles was in no position to do anything about New England—but because by declining to invoke royal authority the founding fathers forbore to rely upon the strongest argument for their own authority to rule. Refusing to claim authority under the crown of England put at risk the Bay Colony government’s own legitimacy. Legitimacy was not a concern peculiar to the seventeenth century. However, it received unusual emphasis at a time when it became finally and universally admitted that the old medieval order of knowledge, belief, and authority had disappeared, religious strife had destroyed the unitary religious basis for western political values, and Eu­rope had fallen into chaos from international rivalries and internecine wars. Monarchy was the great beneficiary of the destruction of the medieval sys­tem. The recognized monarch, scion of monarchs, ruling by divine right, answerable only to God at the last trump, was the exemplary legitimate authority over civil government (and in England's case, over ecclesiastical government as well). This legitimacy, enjoyed by the monarch, justified his exercise of power and, indeed, sanctioned his expansion of power in the de­fense of the state. That expansion was increasingly towards absolutism, and in monarchies throughout Europe, save in the England of Charles I, abso­lutism seemed the wave of the future. It was much more difficult to estab­lish a basis for legitimacy in a state without a monarch. The ultimate appeal to authority conferring legitimacy remained an appeal to God. While the anointed wearer of the crown, an individual, was easily enough conceived of as the instrument of God on earth, a set of unanointed individuals as diverse and as numerous as the freemen of the Bay Colony was much more difficult to appreciate as the instrument of God.

If not the king, what then was the source of legitimate rule or authority? The magistrates and ministers of the Bay Colony were certainly educated and articulate, but far too occupied with immediate concerns and press­ing necessities to devote much time to political theorizing. John Winthrop, Senior, the first governor and the colony's leading light, wrote that “In all their administrations, the Officers of this Bodye Politick have a Rule to walk by... which Rule is the Worde of God”¹⁰ The Reverend John Cotton, in concluding the body of laws that he proposed in 1636,Moses his Judicials, cited Isaiah 33: 22, “The Lord is our Judge, The Lord is our Law-giver, The Lord is our King: He will save us.”¹¹ Both men appealed to God as revealed in Scripture as the fundamental authority for governance. Conse­quently, we can reasonably expect that the Proheme or dedicatory epistle to the Lawes and Libertyes, in which both men had a part, would reflect the reliance upon God for civil authority that both had espoused elsewhere. And that indeed was what was relied upon. The words are John Cotton's:

So soon as God had set up Politicall Government among his people Israel hee gave them a body of lawes for judgement both in civil and criminal causes. These were breif and fundamental principles, yet withall so full and compre­hensive as out of them clear deductions were to be drawne to all particular cases in future times.

In short, positive law—the law of the commonwealth—is deduced from God's Law as revealed in Scripture. But God would not confer legitimacy on government any more than he would confer grace on the individual unless the government was a worthy recipient. If the government was in covenant with God, if it was bound with God to observe His laws, then it was legitimate. This was, of course, a civil parallel to the ecclesiastical covenant that bound the “visible saints” of the church congregation to each other and to God.

This theme of covenant is developed in the first paragraph of the Pro­heme by John Winthrop. The “peculiar people” of God were the ancient Jews. They had, however, forfeited their favored place, “Because that, when they knew God, they glorified him not as God, neither were thankful; but became vain in their imaginations, and their foolish heart was darkened [Romans 1:21].” The Gentiles, though not enjoying any special favor with God, came to stand in contrast to the contempt of the Jews, “For when the Gentiles, which have not the law, do by nature the things contained in the law, these, having not the law, are a law unto themselves [Romans 2:14].” Then God, despite his covenant with the Jews, withdrew his pres­ence from them, chiding them, “Thou therefore which teachest another, teachest thou not thyself? thou that preachest a man should not steal, dost thou steal? [Romans 2:21].” The thrust of Winthrop’s argument is clear. The Bay colonists had taken up the covenant of Grace in Christ and so “may injoye the special presence of God in the puritie and native simplicitie of all his Ordinances by which he is so neer to his owne people.” The remarkable token of God’s grace was that in New England as in Israel in the wilderness, civil and ecclesiastical polities had grown up together “like two twinnes,” strengthening each other and avoiding destructive contention. Through the covenant of grace, God’s law provided all the legitimating authority necessary to govern his new-favored “visible saints” in New England.

This did not fully solve the problem. What if not everyone was a visible saint, in covenant with God through the covenant taken on entering the Church? There were such in the Bay, and the proportion of non-church­men (who were also non-freemen) to churchmen (freemen) was grow­ing. This worried the magistrates and ministers, not so much because such reprobates constituted a threat to the good order of the commonwealth or served to introduce sin into it. Rather, the problem was that the legiti­macy of the Godly Commonwealth, which depended upon the covenant of grace, could not admit of authority over those not covenanted in grace. The government could exercise legitimate authority over the elect because they were bound in the grace that came with election, but it had no claim over the reprobate, the un-covenanted. How dreadful a dilemma this was is made very evident in the third from the last paragraph of the Proheme. To the possible objection of the non-freemen, that they had had no hand in the making of the laws, the magistrates could answer only that because the non-freemen enjoyed the protection of the commonwealth they were bound tacitly to obey its government and abide by its laws. This is not an argument for legitimacy founded upon God's law. Indeed, it is not derived from God's law, but rather from the natural law, as Winthrop admits in cit­ing the maximQui sentit commodum sentire debet et onus, He who enjoys the benefit ought also to bear the burden. In short, the structure upon which the legitimacy of the colony's government depended was sound only inso­far as those who were governed by it were covenanted in grace. For the rest, another authority, and one much less exalted, would have to be summoned in defense of the regime.

Regimes do not rise or fall entirely from the merits or demerits of their legitimacy. Yet the founders of Massachusetts, as far as their legitimacy is concerned, made a very large claim for a very peculiar position. A Godly commonwealth that relied upon natural law as against God's law for justi­fication was no more perfect than, say, the realm of England! That chafed. But then, so too did the presence of so many un-covenanted non-freemen. The history of the first half-century of the Bay was above all the history of the commonwealth's inability to perfect its godliness, and consequently the long, slow but steady erosion of the Godly commonwealth into a merely good civic commonwealth. Realities and necessities, the inability either to survive without the un-covenanted or to enforce exclusivity by immigra­tion only of the covenanted, dictated the historical process of the change that overtook the colony.

Perhaps the Reverend John Cotton, whose reputation for fundamental­ist rigorousness might lead us to expect nothing apologetic on the point of the Godly commonwealth, in the last paragraph of the Proheme betrayed anxiety. Cotton roundly condemned any distinction between the laws of God and the laws of men in the matter of civil obedience, so long as the authority was of God: “Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God [Romans 13:1].” Though the administration of the law is deduced from the word of God in Scripture, Cotton was still forced to admit that “the clear light of nature in civil nations” also provided a starting point for deduction. His conclusion, given that admission, does not follow: that a “humane law” tending to the common good according to those principles “is mediately a law of God.” It was not, and Cotton knew it. That he would try to make it so and binding even on the reprobate for “conscience sake” by citing Romans 13:5, “Wherefore ye must needs be subject, not only for wrath, but also for conscience' sake,” reveals a certain uneasiness, maybe some fear, that the Godly Commonwealth was too narrowly founded on too small a base to survive the challenge of the un-covenanted. So history would prove.

If the founders of the Bay Colony were wanting in theory, in the prac­tice of government and in the implementation of law they were remarkably successful. Pragmatism was their most conspicuous attribute. The Lawes and Libertyes was issued to satisfy the inhabitants’ “longing expectation, and their frequent complaints for want of such a volume: wherein (upon every occasion) you might readily see the rule which you ought to walk by.”¹² The founding magistrates recognized that the laws would change, for “Crescit in Orbe dolus” Evil groweth in the world. After all, the English Parliament had taken four centuries to do a work that was still not done. Though they eschewed making the Body of Liberties of 1641 a body of explicitly funda­mental guarantees, they still incorporated almost all those “liberties” in the greater compilation, reduced perhaps to mere municipal law, well mixed with more humdrum provisions, but still recognizably far-reaching. The Lawes and Libertyes is inimitable in the experience of the English-speak­ing world precisely because what it contains are not one or the other, but both—laws and liberties.

The Lawes and Libertyes was inimitable in another way. Many of its pro­visions are markedly different from English law, statute and common-law, of the period. The letters patent of March 4, 1629 to the Company, which was the charter of the Bay Colony, gave power to the Company’s officers

to make lawes and ordinances for the good and welfare of the saide Company, and for the government and ordering of the said landes and plantation, and the people inhabiting and to inhabite the same, as to them from tyme to tyme shalbe thought meete. Soe as such lawes and ordinances be not contrarie or repugnant to the lawes and statutes of this our realme of England.¹³

The Lawes and Libertyes constituted an exercise of that power, but the conditioning clause was very much observed in the breach. The “Capital Lawes” were both fewer in number than the English capital felonies and in particular crimes more severe.¹⁴ Witchcraft, murder, manslaughter (anger, or cruelty of passion), murder by poisoning, bestiality, sodomy (buggery), and rape were English felonies punishable by death. Bearing false witness, either as perjury or as conspiracy to indict for treason or felony, was only a misdemeanor in English law. Idolatry, blasphemy, adultery, cursing or smiting one’s parents, and the rebelliousness of a son were simply offenses punishable by ecclesiastical courts in England, or, in the case of smiting only, a misdemeanor at common law. Manstealing was not an offense at common or canon law. Conspiracy and Attempt of Invasion might come within the English statute law of treason, and hence be punishable by death. Of course, these Capital Lawes were pre-eminently the Biblical crimes to be repressed most severely in a godly and puritan commonwealth. What were not capital crimes—larceny, burglary, robbery, arson, coin-clipping, etc.— are equally noteworthy. Under its provision for Dowries, while the English common law was followed in the matter of lands, the Lawes and Libertyes was, by following the practices of the Roman and canon laws, far more generous to the widow in the matter of goods and chattels.¹⁵ The General Court had as the model before its eyes the High Court of Parliament. Such arrogation, arguably in breach of the provision of the King's letters pat­ent, is not surprising, given the colonists' understanding of what had to be done and how what was done could be justified and made legitimate. The pragmatism and the theory were nicely mixed, the product of sophisticated minds facing stern realities.

There is a tendency to underestimate the colonists' sophistication—a re­luctance to credit the depth and the extent of the New England magistrates' experience of government and judicature in Old England. Borough courts and manor courts have persistently been offered as the models which, co­lonial historians suppose, were looked to for the Bay courts, and the Court of Assistants has been taken to be a replica of an English quarter sessions. But although the wilderness was primeval, Massachusetts society was not primitive. Neither were the instruments for its governance. The acutely ob­servant Thomas Lechford knew what the magistrates were about:

In the generall Court, or great quarter Courts [of Assistants], before the Civill Magistrates, are tryed all actions and causes civill and criminall, and also Ec- clesiasticall, especially touching non-members: And they themselves say, that in the general and quarter Courts, they have the power of Parliament, Kings Bench, Common Pleas, Chancery, High Commission, and Star-chamber, and all other Courts of England, and in divers cases have exercised that power upon the Kings Subjects there, as is not difficult to prove.¹⁶

Lechford did not exaggerate, for scholarship has demonstrated the equity function that the Court of Assistants exercised, following the Chancery, and its willingness to repress serious misdemeanor with the rigor and the forms of Star Chamber.¹⁷ The founding fathers built all the institutions necessary for the preservation of law, liberty, and order among seventeenth century Englishmen. Therefore, they built more than they suspected they would have to when they first set out upon their mission into the wilderness. The constant development of institutional forms and constructs between the original letters patent of charter carried to the Bay Colony in 1630 and the publication of the Lawes andLibertyes in 1648 —not even two decades—was phenomenal. Two things never cease to amaze the historian observing this development. The first is how the appropriateness and sufficiency of the institutions that were established testify to the founders' sophistication in experience and understanding of the entire range of English institutions. Nothing was established which was inimical to the larger purposes of the founders; nothing was instituted that was more than was needed for the purpose. There was very little backing and filling. Most institutions sur­vived because they were really needed and were economical to the task. Ab­sent from Massachusetts was any widespread wild experimentation—and equally, any serious bias against necessary change.

The second thing that amazes the historian, is the utter confidence of the magistrates in the rightness, legitimacy, and authority with which they built, without recourse to Old England and without evocation of author­ity beyond that law of the God Whom they were very sure they served and Whose purposes they were convinced they were to advance on earth. Their theory might be imperfect, but there was no hesitation in acting as if it were not. In this the consensual played an important part. If the freemen (and churchmen) were a diminishing minority proportionate to the rest, they were listened to with increasing respect. The Lawes and Libertyes was a respectful response to their demands. Lechford's description of the Bay Colony's polity as “Democraticall and Congregationall" was right on both counts. Herein lay the promise of the American future based on an English past. This small society huddled around the estuary of a half-dozen little rivers was from its very origins and earliest developments a society recog­nizably different from any to be found in Old England.

Republicanism begins with that society. Independence begins with that society. Thus, two constituents of what will become the American nation were already present in Boston. And a third element, the experience of the rule of law, was also established there, equally early, flourishing in that rocky soil because of the application and the learning that those who culti­vated it had brought with them. The Lawes and Libertyes is an unmistakably American artifact, but it is not only the first American law book. It is also a monument to English notions of the rule of law, English pragmatism, and the sureness with which Englishmen in the seventeenth century believed that God was with them, even unto a “City upon a Hill."