Local law in Massachusetts and Connecticut, historically considered

Preface

The annals of Massachusetts and of Connecticut show that each of these commonwealths have been ever ready to maintain the right of local self-government. The rights granted in charters by the British Crown, in one era, and the rights reserved to the states in the Federal Constitution, in another era, were dearly prized by each commonwealth, as the basis of its local laws.

This love of local law, and the struggles to maintain it, are, in the following pages, set forth in a series of historical facts, in the hope that they would furnish lessons of wisdom for political students of this and future times. A like induction of facts from the annals of other states, of the Old Thirteen^ would show that they too were animated by the same spirit to struggle for the same object.

Nor is there now any reason for the decay of that spirit, or the cessation of those struggles. After the states had ceased to be colonies, and had formed their o^vn separate Constitutions, they proceeded in due time unitedly to form the present Federal Constitution, as supplementary to the State Constitutions. They so adjusted the Federal Constitution to the State Constitutions, that under a two-fold government the internal concerns of each state could be taken care of by local laws enacted by itself, while the external concerns of the whole could be taken care of by federal laws enacted by the states in cono-ress assembled. Thus the states are separated as to one class of interests, and united as to another class. Thus too, as sepaiv PREFACE.

rated, the states, each of them, can pass such local laws as it sees fit, within the limits of its reserved rights ; and the states, as united, can pass such federal laws as they see fit, within the limits of their delegated powers. Under this two-fold government, with two sets of laws, with two sets of agents, the problem is to keep each state government on its own domain within the limits of its reserved rights, and to keep the federal government on its own domain within the limits of its delegated powers. K this problem shall not be worked out, our two-fold government may become the worst government on earth. If it shall be worked out, according to the original idea of the founders of the smaller republics, the separate states, and of the larger, federal republic, the United States, it may become the best government on earth.

W. C. F.

Durham, Conn., 1872.

LOCAL LAW IN MASSACHUSETTS.

Local law is a relative term. It stands contrasted with imperial law. As used in this paper, it means the laws of the town as distinguished from the laws of the colony or state. Moreover, it means the laws of the colony or state as distinguished from the laws of Great Britain or of the United States.

Plymouth Colony. — The Residence in Holland.

In 1608 a company of English separatists left their native country by stealth, to dwell in Amsterdam. Wliy did they leave the fruitful fields which they had cultivated, to dwell in a commercial city, inhabited by a strange people, speaking a strange language, and engaged in business foreign to their own ? Because, as separatists from the Church of England they had felt or feared the pains and penalties of the imperial laws enacted by the British parliament. After residing in that city, where their religious opinions were tolerated for perhaps a year, why did they with their pastor, John Robinson, and their teaching elder, William Brewster, remove to Leyden? Because there were violent feuds between two other congregations of separatists, which threatened to embarrass them in their self-government as a church. After staying in Leyden about eleven years, why did they leave that " pleasant city," to brave the dangers of the ocean and to dwell in the wilderness exposed to savages ? Because they could not practically carry out their principles of self-government as a church, and transmit them to their posterity, among a people to whom they were in danger of becoming assimilated, so that their children, instead of being English, would become Dutch. To preserve their nationality, their Ianguage, and their cherished form of church government, they must leave Lejden.

After they had come to this resolution, " the world was all before them where to choose." Guiana, described in the glowing language of Sir Walter Raleigh, as an earthly paradise, was proposed to them. This locality they rejected, because it would expose them to the interference of the jealous and fiery Roman Catholic Spaniard, from whom Leyden had lately suffered so much. Zealand in Holland was proposed to them. But Holland was no longer acceptable as a place of residence. They cast their eyes across the broad Atlantic upon the new world. Here was the soil, here was " ample room and verge enough," where the germs of their civil and religious institutions could take root and expand fully ^^dthout repression. They were " well inclined " to cross the ocean and take up their home in the colony of 'New N^etherland, on the island of Manhattan, under the protection of the Prince of Orange and the High and Mighty Lords the States General. But this inclination on their part, though encouraged by the directors of the New Netherland company, was not destined to be gratified.

Extract from the Petition or the Directors of the New Nethbrland Company.

[From the original in the Royal Archives at the Plague ; File entitled Aclmiraliteit.]

Dated February 12, 1620.

" To the Prince of Orange, etc.

" Now it happens, that there is residing at Leyden a. certain English Preaclier, versed in the Dutch language, who is well inclined to proceed thither to live, assuring the petitioners that he has the means of inducing over four hundred fiimilies to accompany him thither, both out of this country and England, provided they would be guarded and preserved from all violence on the part of other potentates, by the authority and under the proteittion of your J'l-incely Excellency and the High and Mighty Lords States General, in the i>roi)agation of the true, pure Christian religion, in the instruction of the Lidians in that country in true learning, and in converting them to the Christian Faith, and thus through the mercy of the Lord, to the greater glory of this country's government, to jilant tlicre a new C'ommonwealth, all under the oi'der and command of your I'riucely Excellency and the High and Mighty Lords States General."

LOCAL LAW IN MASSACHUSETTS.

Eesolution of the States General on the Petition of

THE N'eW NeTHERLAND COMPANY.

[Prom the Register of Resolutions of the States General, in the Royal Archives at the Hague.]

" The petition of the Directors of the l^ew ITetherland Company, that they, for the peopling of said Island, may he assisted with two ships of war, is rejected."

In the Petition from which the above is taken application is made for two ships. In the refusal to grant the petition for the two ships no notice is taken of the four hundred English families whom the Preacher at Leyden, John Robinson, ottered to conduct to America under patronage of the States General. The inference is that the States General did not wish to take them under their patronage. — New York Colonial History, vol. i, pp. 24, 25.

A portion of them were in favor of settling with the English planters in Virginia. But it was replied by the others,

" If they should live with the English (Episcopalians) there planted, and under their government, they would be in as great danger to be persecuted for the cause of religion, as if they lived in England, and it might be worse."

Thus there seems to have been some repulsion between themselves and others. They were Aryan in race, but they were Semitic of the Hebrew type, in their proclivity to isolation. On the whole it was, in the language of Bradford, decided " to live in a distinct body by themselves," under the patent of the Virginia company in London ; and by their agents to sue his majesty to grant them "free liberty and freedom of religion." From these facts we learn what was the ruling desire in their hearts. It was that they might be in a place where they might have full power to make their own laws. They did not want English laws, or Dutch laws, or Virginia laws, but their own laws.

So intent were they upon obtaining this " free liberty, and freedom in religion," or, in other words, the power to make and enjoy their local laws as separatists in religion, and as separatists in civil polity, that they sent to the great council of England, by their agents, Robert Cushman and John Carver, seven articles adopted by the Leyden church, in which they make large concessions to the church of England, and to the king.

LOCAL LAW IN MASSACHUSETTS.

Articles from the Church of Leyden. — 1617.

Seven Artikes which y' Church of Leyden sent to y* Connsell of Eno:land to bee considered of in respeckt of their judgments occationed about theer going to Virginia Anno 1618.

1. To y* confession of fa;si:h published in y' name of y' Church of England & to every artikell thereof wee do w* y' reformed churches wheer wee live & also els where assent wholy.

2. As wee do acknolidg y* docktrine of fayth theer tawgth so do wee y* fruites and eifeckts of y' same docktryne to y* begetting of saving fayth in thousands in y* land (conformistes & reformistes) as y* ar called w*^ whom also as w"" our bretheren wee do desyer to keepe sperituall communion in peace and will pracktis in our parts all lawful thinges.

3. The King's Majesty wee acknolidg for Supreame Governor in his Dominion in all causes and over all parsons, and y* none maye deckljTie or apeale from his authority or judgment in any cause whatsoever, but y' in all thinges obedience is dewe unto him, either active, if y* thing commanded be not agaynst God's woord, or passive yf itt bee, except pardon can bee obtayned.

4. Wee judg itt lawful! for his Majesty to apoynt bishops, civill overseers, or officers in awthoryty onder hime, in y' severall provinces, dioses, congregations or parrishes to oversee y* Churches and governe them civilly according to y" Lawes of ye Land, untto whom y^ ar in all thinges to geve an account & by them to bee ordered according to Godlynes.

5. The author}i;y of y® present bishops in y® Land wee do acknolidg so far forth as y® same is indeed derived from his Majesty untto them and as y'' proseed in his name, whom wee will also theerein honor in all things and hime in them.

6. Wee l)eleeve y' no sinod, classes, convocation or assembly of Ecclesiasticall Officers hatli any power or a\\i;hor}i:y att all but as y® same by y® Majestraet given unto them.

7. Lastly, wee desyer to geve untto all Superiors dew honnor to preserve y® unity of y® speritt w"* all y' feare God, to have peace w"* all men what in us lyeth and wheerein wee err to bee instructed by a^iy. Subscribed by

John Robinson, and

WiLLYAM BrUSTER.

The Concessions accounted for.

Those concessions are remarkable, coming as they do from men who some twelve years before had ilcd Iroiii England with a deep sense of injury in their souls, and, it may be, with maledictions on their lips. How can they be accounted for ? It may be that a fuller acquaintance with the fruits of separatism had inspired them with modesty ; or that the excellent and liberal Robinson, their pastor, had softened any severity in their feelings ; or that the mellowing influence of time and suiFering had made them charitable and catholic. But we can also believe that these large concessions, this language of Christian courtesy respecting the Episcopal church, which they once regarded as their mother, and this language of loyalty towards him whom they still considered as their king, can be accounted for by their strong desire to conciliate the king to grant them " free liberty and liberty of religion," that is, authority to make their own laws for their self government. Their love of local law in ci\dl concerns must have been streng-thened, if not originated, in Holland, at that time the freest country in Europe, having a system of local law, adopted it is said in N'ew l^etherland or New York when under the government of the States General, and if their pride, or principle, or passion, had kept them during the years of their exile, aloof from the king, they were now, when about to seek a forest home in his uninhabited dominions, willing to present their petition to the king through the pri\'y council, accompanied by these propitiatory articles. But all that they could obtain from the king, James L, after the most diligent " sounding," was an oral promise, that he would " connive at their separatism," and not molest them so long as they gave no public oflfence. But to allow and tolerate them " under the great seal," he would not consent. With this slender encouragement, and putting their trust not in princes but in providence, they hastened the preparations for the voyage to their expected home in the wilderness.

Letter to Sir Edwin Sandys.

The following letter, dated Dec. 15, 1617, and signed by some of the principal members of the Leyden church, shows their self reliance and their competency to self government.

" We believe and trust the Lord is with us, ... . and will graciously prosper our endeavors according to the simplicity of our hearts therein. We are well weaned from the delicate milk of our mother country, and inured to the difficulties of a strange and hard land. The people are, for the body of them, industrious and frugal We are knit together in a strict and sacred bond and covenant of the Lord, of the violation Avhereof we make great conscience, and by virtue whereof we liold ourselves strictly

tied to all care of others' good It is not with us, as with

others, whom small things can discourage, or small discontentments cause to wish themselves home again."

Origin of their true Love of Local Law.

From these historical facts we learn how it was that this company of emigrants became the practical advocates of local law. La England, they knew by bitter experience the oppressive tyranny of imperial law, the laws of the national church, and the laws of parliament. Li Holland, they had seen with their own eyes the beneficial workings of local law. Thus schooled, they understood that imperial law, under a centralized government, is made by those legislators who do not fully understand the wants and interests of many of the people for whom they legislate ; but that local laws ape made by the people themselves, for the people themselves, who fully understand their own interests and their own wants. As separatists they believed that every local church is competent to take care of its internal concerns, and they were prepared to believe that towns also are competent to take care of their internal concerns. Thus they were prepared to adopt and illustrate, in due time, the general proposition, that local laws made by the people on the spot for themselves, whether as members of a church or citizens of a town, are more likely to be good and appropriate than imperial laws made by men residing at a distance.

Compact formed on Board the Mayflower.

The Mayflower put to sea from Plymontli, England, September 6, 1620, freighted with one hundred and two passengers, the seed corn for a continent, the future representatives of local law in church and state. On the 9th of Xovemher, they sighted Cape Cod, and cast anchor in tlie roadstead of what is now Provincetown. Here they prepared and signed the celebrated compact in tlie following words:

"In the name of God, Amen. We whose names are underwritten, the loyal subjects of our dread sovereign lord. King James, by the grace of God king of Great Britain, France and

Ireland, defender of the faith &c. having undertaken for the glory of God and the advancement of the christian faith and honor of our king and country a voyage to plant the first colony on the northern parts of Virginia, do by these presents, solemnly and mutually in the presence of God and one another, covenant and combine ourselves together into a civil body politic, for our better ordering and preservation, and furtherance of the ends aforesaid ; and by virtue hereof to enact, constitute and frame such just and equal laws and ordinances, acts and constitutions, and offices, from time to time, as shall be thought most meet and convenient for the general good of the colony, unto which we promise all due submission and obedience.

" In witness whereof we have hereunto subscribed our names, at Cape Cod, the 11th of j^ovember, in the year of the reign of our sovereign Lord, King James of England, France and L-eland, the eighteenth, and of Scotland the fifty-fourth. Anno Domini, 1020."

On the same day under this compact or constitution, John Carver was elected governor of the Colony for one year.

In thus combining themselves into a body politic, and choosing a governor, they acted in accordance with their original purpose, as stated in the letter of their pastor, Robinson, addressed to them.

DOCTRINES' OF THE COMPACT.

In this compact or coaBtitution we find the central doctrines of the Declaration of Independence, adopted one hundred and fifty-six years afterwards by descendants of those who entered into this compact. In equivalent language interpreted by the subsequent acts of the signers of each we have in both instruments the doctrine, that government is founded on compact ; that it derives its just power from the consent of the governed ; that the people are competent to understand what are the true ends of government, and to adopt the best means for promoting those ends, by passing just and equal laws. Thus viewed, the first five signers of the compact on board the Ma^-flower, namely : John Carver, William Bradford, Edward Winslow, Will. Brewster and Isaac Allerton, should be placed on the same high level in the annals of the world as the immortal five who drafted the Declaration of Lidependence, namely : Thomas Jefl'erson, John Adams, Benjamin Franklin, Roger Sherman and Robert R. Livingston.

It is remarkable that tlie signers of the compact made no allusion to parliament, the law-making power of England, but speak as if competent to make their own laws.

These noble men have been called pilgrims. Thej were more than pilgrims. They were the founders of the free institutions of a sovereign state, and largely of the free institutions of a mighty republic, composed of sovereign states. They were not pilgrims with scallopshell, and crucifix, and staif, and scrip, visiting some venerated shrine. They were no saunterers on a professed pilgrimage to the holy land. These voyagers, " weaned from the delicate milk of their mother country," were strong men and brave men, armed with the shield of faith, and the sword of the spirit.

Commisit pelago ratem

Primus.

If this could be said by the Roman poet of the fifty-four heroic voyagers on board the Argo, in search of the golden fleece, with how much more emphasis can it be said of those moral heroes who embarked on board the Mayflower, to find beyond the stormy Atlantic the precious boon, liberty.

True they can be called pilgrims, inasmuch as they were foreigners, whether their home was England or heaven. They were pilgrims in the same sense in which Christian is a pilgrim in the immortal work of Bunyan.

The Landing.

Having landed on Monday, the 11th of December, old style, and the 2lBt, new style, at a place on Cape Cod bay, afterwards called Plymouth, they here, under the compact of government formed in the cabin of the Ma^^ower, enacted such laws from time to time, as their exigencies required ; by a sovereign act injBlicting capital punishment without sending the criminal to England for trial ; by sovereign acts declaring and carrying on war ; by a sovereign act entering into a treaty or comjtact in the confederation of 1643, with Massachusetts, Connecticut and New Ilaven.

Exclusive Jurisdiction Claimed.

In 1636 the following declaration was ordered : "We the associates of New-Plymouth, coming hither as freeborn subjects of the state of England, and endowed with all and singular the privileges belonging to such, being assembled, do ordain that no act, imposition or law or ordinance be made or imposed upon us at the present or to come, but such as shall be made and imposed by consent of the body of associates, or their representatives legally assembled, which is according to the free liberties of the state of England."

In this order, then, is the distinct declaration that the local laws of the colony are paramount to all other laws, those of parliament not excepted.

Moreover, the right of local self government, that is, of making its own laws, which it claimed and exercised in its relation to England, it accorded to each of the towns, each town making and administering its own laws as to its internal concerns under the decisions of its own courts, while each town was represented in the general court of the colony, which legislated on those matters which concerned the whole. Thus each town was a little republic complete in itself for its own purposes, while all the towns confederated Avith one another formed a larger republic complete in itself for its own purposes.

The New England Confederacy.

In the year 1643 the New England Confederacy was formed between the Massachusetts, Plymouth, Connecticut, " and the government of New Haven and the plantations in combination with it." The league or compact thus entered into was declared to be perpetual, and the united colonies were spoken of as a nation for certain purposes, while each colony remained a nation for other purposes.

This confederation or union, was an act of sovereignty of each of the four parties which formed it, shadowing forth the confederation or union of the thirteen states in 1781, by the adoption of the first federal constitution of the united thirteen states, and also the confederation or union of the same thirteen states, by the adoption of the second or present federal constitution of the United States. In being a party to this compact or constitution,

Plymoutli did but carry out the compact or constitution made on board the Ma^ilower, in which, as a body politic, she dechired herself competent to form " laws and constitutions."

The third article of this compact of the " united colonies " provides that each colony, or rather that the plantations or towns of each colony, shall retain power to manage its internal concerns. These are the words :

" It is further agreed, that the plantations which at present are, or which shall be hereafter settled within the limits of the Massachusetts, shall be forever under the Massachusetts, and shall have peculiar jurisdiction, among themselves in all cases as an entire body, and that Plymouth, Connecticut and ISTew-Haven shall each of them have like peculiar jurisdiction and government within their limits."

Here we have in this third article of the federal constitution of 1643 just as distinct if not as full provision made by the united colonies for the preservation of local laws and colony rights, as we have in the ninth and tenth articles of the present federal constitution for the preservation of local laws and state rights.

At a meeting of the commissioners of the united colonies of New England, September, 1644, the commissioners of Massachusetts moved that Massachusetts should have the first place in naming the colonies, as a matter of right in the judgment of the general court, as well as in their own judgment. This claim of right the other commissioners would not allow. Yet out of res]3ect to the government of Massachusetts, they granted that the commissioners of Massachusetts should sign first after the president. To this ambitious claim of Massachusetts to precedence, Plymouth the elder sister modestly yielded.

This same spirit of modesty was shown in a letter written in 1665 by the governor of Pl}niiouth, on the subject of forming a new confederation, after New Haven had been absorbed in Connecticut. " We find not our reason seated in suflicient light to continue confederation with three colonies as we did with four." After gi\dng three solid objections, which reflect on the acts of both MaKsachusettw and of Connecticut in the confederacy, he goes on to say :

" Tlio truth is, avc are the meanest, weakest, least nble to stand of ourselves, and little abk^ to (•oiitribute any hcljiiiihiess to others; and we know it, though none should tell us of it; yet

LOCAL LAW IN MASSACHUSET'fS. 15

tliroiigli God's goodness, we have not hitherto given you much trouble, and hope it shall be our study and endeavors, as we are able, to be serviceable to our countrymen, brethren and fellow subjects ; and doubt not to find the like from yourselves if needed."

Plymouth annexed to Massachusetts.

Plymouth colony had long been striving in vain for a separate charter according to the original purpose of living in a " distinct body by themselves," and that they might thus live under their own laws. On a certain occasion, when it was proposed to connect the colony with ISTew York, it expressed a preference to be connected with Massachusetts as the lesser of two evils. This was improperly construed by the government of England as a willingness to be connected with Massachusetts. Accordingly in the new charter granted by William and Mary, in 1691, Plymouth was merged in Massachusetts just as New Haven had been merged in Connecticut some thirty years before. However gratifying this arrangement may have been to Massachusetts, the feeling in Plymouth colony may be learned from the following letter dated Nov. 6, 1691, from Mr. "Wiswall to Governor Hinckley :

" All the frame of heaven moves upon one axis, and the whole of New England's interest seems designed to be loaded on one bottom, and her j)articular motions to be concentric to the Massachusetts tropic. You know who are wont to trot after the Bay Horse."

Colony of Massachusetts.

In June, 1628, a company of English emigrants under the auspices of John Endicott arrived at Naumkeag, now Salem, to settle upon a territory granted by the " Council for New England," to six patentees, of whom John Endicott was one. Here they found the remains of a small colony which in 1624 had settled at Cape Ann, now Gloucester, but in despair of success there, had removed to this place.

Under a charter obtained, March, 1629, from Charles I., a government was formed for the colony there, by the company in London, John Endicott being appointed governor of the colony. In June, 1629, the colony was strengthened by the arrival of several hundreds, among whom were Francis Iligginson, and Samuel Skelton, ordained ministers of the Church of England, but non-conformists. In June, 1630, a still larger reinforcement arrived with John "Winthrop, who had been appointed governor.

Sympathy with the Episcopal Church.

It will be recollected that these emigrants, when in England, were non-conformist Episcopalians : puritans, but not separatists. And after their removal to Salem, services were conducted in the Episcopal manner, on the arrival of the second company with Higginson. With so little favor did this second company view the separatists, that Mr. Higginson speaking for them said :

" We will not say as the separatists are wont to say, on their leaving England, Farewell Babylon ! Farewell Rome ! But we will say. Farewell dear England ! Farewell the Church of God in England, and all the christian friends there ! We do not go to New England as separatists from the Church of England ; though we cannot but separate from the corruptions in it ; but we go to practise the positive part of church reformation, and propagate the gospel in America."

Having said these words in the presence of his children and other passengers whom he had called to the stern of the ship to take their last sight of England at Land's End, he concluded with a fervent prayer for the king, and church, and state in England.

Entirely in harmony with this are the utterances of the third company with Governor Winthrop, when they left England, April, 1630. The following language they address to their " brethren," as they style them, " in and of the Church of England:"

" We desire you would be pleased to take notice of the principals and body of our company, as those who esteem it our honor to call the Church of England from whom we rise, our dear mother, and cannot part from our native country, wliere she specially resideth, witliout nuu-li sadness of heart, and many tears in our eyes, ever acknowk'dging tliat such hope and part as we have obtained in the common salvation, we have received in her bosom, and sucked in from her breasts : We leave it not, therefore, as loatliiiig tliiit milk wliorcwith we were nourished there, but blessing God for the parentage and education, as mem-

LOCAL LAW D^ MASSACHUSETTS. 17

bers of the same body, sball always rejoice in her good, and iTnfeignedly grieve for any sorrow that shall ever betide her, and while we have breath, sincerely desire and endeavor the continuance and abundance of her welfare, with the enlargement of her bounds in the knowledge of Christ Jesus."