the first and fourth articles of which have this character and have already been cited. They contain some provisions respecting indentured servants, pp. 34, 35, 47, 58, 61, 65, 81, 140, 195. From these, however, it would appear that the condition of such servants, if of English origin, was in this colony less burdensome than that of persons of the same class in other settlements, and that the policy of the colony was to encourage their emancipation and facilitate their settlement on land of their own.

It would seem that such persons even participated in the exercise of the elective franchise during the first sixteen years of the settlement. But it appears that in 1636, not even all male freeholders were entitled to vote, and the laws distinguish "freemen" or "associates" as a distinct portion of the inhabitants, constituting a corporation, Ply. Col. L. pp. 42, 62, 100, 108, 113. In 1657, it was enacted "that all such as reside within this government "that are att theire owne despose,"

3

as the same be not contrary to the laws and statutes of this our realm of Engand," &c. The "principal governors were empowered to govern by the laws so established, so always as the statutes, ordinances, and proceedings, as near as conveniently may, be agreeable to the laws, statutes, government, and police of this our realm of England." It was also provided "that the persons, being our subjects, which shall go and inhabit," &c., should have the privileges of subjects born in England (in words almost literally the same as those used in the second charter of Virginia, ante, p. 229). See Patent in 1 Hazard, 103, and summaries; 1 Ban. 272; 1 Hild. 152. The council for New England, under this, granted a patent to Governor Bradford and "his associates," the Plymouth colonists, 1630, with powers of government according to the terms of the Great Patent, 1 Haz. 298; Plym. Col. Laws, 21. A patent issued for their benefit to John Pierce, in 1621. See Young's Chronicles, p. 114, n.; Plym. Col. Laws, p. 50, This patent seems not to have been used. As to powers derived from patents, see ante, § 127.

2 Ante, § 129.

6

Some of the signers of the original compact are designated as persons "in the family" of some one of the others. See Prince, Part II. p. 86, 105. 1 Banc. 322. "For more than eighteen years the whole body of the male inhabitants' constituted the legislature." If the same anomaly existed in the colony of Massachusetts Bay, the exception herein before taken (p. 121, n. 4,) to Mr. Bancroft's statement is ill-founded. At the period when slavery or bondage existed under the Saxon law, and the term freemen designated a class having, by the elective franchise, a share of political power, still, all who were not bondsmen were not freemen, in that sense. N. Bacon's Hist. Disc. p. 56, describing the Free-lazzi, "yet attained they not to the full pitch of freemen; for the lord might acquit his own title of bondage, but no man could be made free without the act of the whole body." Comp. ante, p. 125, n. 2, p. 136, n. 3.

* Thus assuming to have that legal foundation for their civil polity, which the "freemen of the company" of the colony of Massachusetts Bay claimed for themselves under their charter from the king.

who would not take the oath of fidelity should depart the government or pay a fine, Plym. Col. L. p. 102.1

No mention is made of negroes or of slaves. But from certain regulations, in 1676, it appears that there were some Indian captives held as slaves, and liable to be sold as such. Plym. Col. L. pp. 177, 178, and on p. 187. "This courte sees cause to prohibit all and every person or persons within our Jurisdiction or elsewhere, to buy any of the Indian children of any of those our captive salvages that were taken and became our lawfull prisoners in our late warres with the Indians, without special leave, liking, and approbation of the government of this jurisdiction."

Special regulations for Indians, enacted 1682, are found, p. 196.

2

It is difficult to fix the precise date of many of the enactments proceeding from the Colony of Massachusetts Bay. This, however, is not very material for the present purpose. The exercise of local legislative power dates from October 19, 1630, when the general court of the "freemen" or members of the corporate body created by the royal charter of March, 1629,3 was first held at Boston.

1631, May. "To the end that the body of freemen may be preserved of honest and good men: It is ordered that henceforth no man shall be admitted to the freedom of this commonwealth, but such as are members of some of the churches within the limits of this jurisdiction." Charters, &c., p. 117 (see post, laws 1660, 1665).

Analogous to this were the laws against Quakers, who would acknowledge no civil authority.

See the Advertisement by the compilers of the Charters and General Laws of the Colony and Province of Massachusetts Bay. Boston, 1814. 8vo. 3 By the name, "the Governor and Company of Massachusetts Bay, in New England," the corporators had a patent from the council of Plymouth, in England, dated March 19, 1628. The governor, deputy, and assistants provided for the government by the charter were to be chosen out of the "freemen" or stockholders first named therein, and those admitted by them in general courts, at which laws might be enacted for the government of the colony "so as such laws and ordinances be not contrary or repugnant to the laws and statutes of this our realm of England." In terms almost identical with the 15th art. of the Virginia patent, of 1606, (ante, p. 228,) it was provided that all subjects who should "go to and inhabit within the said lands," &c., and their children should have "the liberties and immunities of free and natural subjects," &c. 1 Hazard's Coll 239. Charters, &c., p. 9, 13.

1632, March. As an addition to an order made 22 March, 1630, it is ordered "that if any single person be not provided of sufficient arms allowable by the captains, &c., he shall be compelled to serve by the year, with any master that will retain him for such wages as the court shall think meet to appoint." Charters, &c., App. p. 712.

1633-7.-It is declared, &c., "that what lands any of the Indians in this jurisdiction have possessed and improved, by subduing the same, they have just right unto, according to that in Gen. 1, 28 and ch. 9, and Psal. 115, 16. And for the further encouragement of the hopeful work amongst them for the civilizing and helping them forward to Christianity; if any of the Indians shall be brought to civility and shall come among the English to inhabit, in any of their plantations, and shall there live civilly and orderly; that such Indians shall have allotments amongst the English according to the custom of the English in like case.

"Further it is ordered, that, if upon good experience, there shall be a competent number of the Indians brought to civility so as to be capable of a township, upon their request to the General Court, they shall have grant of lands undisposed of for a plantation as the English have." See the General Laws and Liberties of Massachusetts Colony, revised, &c., ed. Cambridge, 1675. Title-For settling the Indians' title to lands in this jurisdiction.

In the same law there is a provision, common in all the colonies, forbidding the sale of fire-arms and ammunition to any Indian.

1630-1641.—"It is also ordered that when any servants shall run from their masters, or any other inhabitants shall privily go away with suspicion of evil intentions, it shall be lawful for the next magistrate or the constable and the two chief inhabitants, where no magistrate is, to press men and boats or finances, at the public charge, to pursue such persons by sea or land, and bring them back by force of arms." Charters, &c., ch. 68. Title,-Acts respecting masters and laborers, § 3.

1636. It is ordered that no servant shall be set free, or

have any lot, until he have served out the time covenanted; under penalty of such fine as the quarter courts shall inflict, &c. Charters, &c., p. 42. Title-Acts respecting freemen and ser

vants.1

1641. This is the date of the celebrated "Massachusetts Fundamentals" or "Body of Liberties," the preamble of which is as follows:

"Forasmuch as the free fruition of such liberties, immunities and privileges as humanity, civility, and christianity call for as due to every man, in his place and proportion, without impeachment and infringement, hath been and ever will be the tranquillity and stability of churches and commonwealths, and the denial or deprival thereof, the disturbance, if not the ruin of both, we hold it therefore our duty and safety, whilst we are about the further establishing of this government, to collect and express all such freedoms as for the present we foresee may concern us and our posterity after us, and to ratify them with our solemn consent. We do therefore this day religiously and unanimously decree and confirm these following rights, liberties and privileges concerning our churches and civil state to be respectively, impartially and inviolably enjoyed and observed throughout our jurisdiction forever." (Cambr. ed. laws, 1675, p. 1.)

The ninety-eight articles of this code are classed under distinct headings or titles, commencing with a general statement of the rights of the inhabitants in seventeen articles; the first of which is as follows: "No man's life shall be taken away, no man's honor or good name shall be stained, no man's

By the Mass. Records, vol. I., pp. 246, 269, it appears the General Court sentenced certain offenders, in 1638, 1639 "to be delivered up a slave" to persons appointed by the court.

It is believed that there is no mention made of negro slaves previous to the act of 1696 or 1698 hereinafter cited. But it appears from "Josselyn's Voyage," see Mass. Hist. Col., 3d series, vol. III., p. 231, that there were, in 1639, some negroes in the colony held in slavery; and see Dr. Belknap's letter to Dr. Tucker, in Mass. Hist. Col. 1st series, vol. IV., p. 194.

"For the history of this act and an abstract of its provisions, see 1 Hildr. p. 274. 1 Savage's Winthrop, p. 160. Mass. Hist. Col. 3d series, vol. VIII., p. 191; a paper by F. C. Gray, L.L. D., containing the history of the previous publications, and a more authentic copy. Commonw. v. Alger, 7 Čushing, 67.

person shall be arrested, restrained, banished, dismembered, nor any ways punished, no man shall be deprived of his wife or children, no man's goods or estate shall be taken away from him, nor any way indamaged under color of law or countenance of authority, unless it be by virtue or equity of some express law of the country warranting the same, established by a General Court and sufficiently published; or, in case of the defect of a law in any particular case, by the word of God, and in capital cases or in cases concerning dismembering or banishment, according to that word, to be judged by the General Court."

Article 2. "Every person within this jurisdiction, whether inhabitant or foreigner, shall enjoy the same justice and law that is general for the plantation, which we constitute and execute towards one another without partiality or delay."

Article 17. "Every man of or within this jurisdiction, shall have free liberty, notwithstanding any civil power, to remove both himself and his family at their pleasure out of the same, provided there be no legal impediments to the contrary."

The next forty-one articles are called ' rights, rules, and liberties concerning judicial proceedings.' There is no mention made among these of involuntary servitude as a punishment. Though 'barbarous and unusual punishments' are prohibited, it seems not to have been taken as applying to whipping, the pillory, cropping and other similar inflictions.'

Twenty articles contain 'liberties more particularly concerning the freemen,' which relate to the civil polity of the colony. In one of these articles it is enacted that no prescription or custom may prevail to establish any thing morally sinful by the word of God.' (Laws, Cam. 1675, p. 126.) 'Liberties of women' is the subject of two articles; liberties of children'

1 In 1681, a negro who had been convicted of arson, was publicly burned alive in Boston; this was the old common law punishment. 4 Blacks. Comm., 222. In 1755 a man and a woman, negro servants of Captain John Codman, of Charlestown, were executed under sentence of the Assizes, for poisoning their master; the woman was burned. Oliver's Pur. Commonwealth, p. 84. 2 Elliot's Hist. New E., 187. The crime was petit treason by common law, and to be drawn and burnt, instead of being drawn and hanged, was "the usual punishment for all sorts of treasons committed by those of the female sex," until 30 Geo. III., c. 48. 4 Bl. Comm., 204. It would seem from these instances that, after all, the courts were obliged to resort to "common law" to find out what punishments were not "barbarous and unusual.”