'CHAPTER IX.

GOVERNMENT AND LAWS.

332. Government and laws of the New England colonies. The charter under which the first settlements in New England were made, vested in the corporations the power of making all laws which should be deemed expedient, provided they were not repugnant to the laws of England. By the charter of Massachusetts, the powers of government were lodged in the governor, deputy governor, and eighteen assistants, who were to be chosen by the freemen, and who constituted a court to be held monthly; and in the whole body of the freemen, who were to be summoned to hold a general court at least once in a year. The first general court in Boston was held May 17, old style, 1631, when all the freemen attended and took the oath.

333. First practice under the charter. At the first election, the freemen chose the assistants, and these chose the governor and deputy governor from among their own number; but this was a departure from the charter; and at the general court in May, 1632, it was ordered that the freemen should choose the governor and assistants annually, and the governor be always selected from among the assistants. The governor and assistants at first exercised great powers, even to the laying of taxes, without consulting the freemen. The people in Watertown opposed this practice, but the court of assistants summoned them to appear before the court at Boston, and convinced them that the government was rather in the nature of a parliament, than of a city corporation." The opposers, therefore, submitted, and retracted what was called their error; but, in fact, was a correct opinion.

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334. Qualifications of a freeman. In addition to the usual qualifications of electors, the possession of property and a good character, the first settlers of New England made it requisite, that a man should be in full communion with the church, to entitle him to the privi

lege of voting for rulers, and it was usual for the candidate to procure a certificate from his minister, of his orthodox principles and moral conversation. In Massachusetts, a proposition was made to the court, in 1644, to repeal this law, and extend the rights of freemen to others, who were not church members; but it was postponed, and the law continued till the year 1662, when it was repealed, in conformity with the injunctions of king Charles the 2d.

335. Changes in the government of Massachusetts. It was customary at first for all the freemen of the colony to meet in general court, and the governor, assistants, and freemen, all assembled in one body or house. As the freemen multiplied, it became inconvenient for all to attend, and at the election in April, 1634, the freemen chose two of their number from each town to meet and consult upon some matters, previous to the general court in May, which had for their object a limitation of the powers of the court of assistants. After a consultation, and a perusal of the charter, they were convinced that the court of assistants had exceeded their powers, and repaired to the governor to advise with him, and to propose the abrogation of some of their laws. The governor suggested, that as it was inconvenient for all the freemen to attend, a select number of them should revise, consider, and prepare new laws or alterations, for the general court.

336. Establishment of representatives. In consequence of these proceedings, the general court in May, 1634, enacted that there should be four general courts annually, but the whole body of freemen should be present only at the court of elections, and at the other three courts, deputies only from the towns should attend and manage the public concerns. The number of deputies from each town was three, until the year 1639, when by an order of the general court, the number was reduced to two. This ordinance excited much popular jealousy, which gradually yielded to a full conviction of its expedience.

337. Origin of a negative vote in the court of assistants. At the general court in September 1634, the

Newtown people under Mr. Hooker, presented a request for permission to remove to Connecticut; alledging, as reasons, the want of more room to accommodate themselves with pasturage, the fertility of the Connecticut land and the urgency of their wishes. Many objections were raised to this proposal; among others, the unity of the Newtown people under the charter, and their duty to protect the colony, which was weak and exposed to assaults from the savages; they urged also the exposure of the people to the Dutch and Indians on the Connecticut. After great debate, the vote was taken; the governor and two assistants were in favor of the removal; the deputy governor and the rest of the assistants were against it; of the deputies, fifteen were for it, and ten against it. As the charter required seven of the assistants, to make a quorum, and there was not a majority of that number for the removal, the governor and assistants contended, that the vote was not carried in the affirmative. On the other hand, there was a majority of the deputies in favor of it, and the deputies contended that the assistants could not impose a negative on their vote.

338. Progress of this dispute. As neither of the parties would yield the point in dispute, the court adjourned without entering the vote on record; all agreeing however to keep a day of religious humiliation on that occasion, which was observed by all congregations. Mr. Cotton, an eminent and influential clergyman, preached a sermon, in which he maintained the "strength of the magistracy or assistants to be their authority that of the people, their liberty-that of the ministry, their purity," and he gave such reasons for the negative power of each, that, if not convinced, all were satisfied to let the question subside. A few days after, the court met, and business was carried on amicably: the assistants maintaining their negative voice, even while the representatives sat with them in the same room and all formed but one house or legislative body.

340. Division of the legislature into two branches. The assistants and deputies continued to sit in the same room and vote together about ten years; but not with

out great discontent on the part of the deputies, who conceived themselves abridged of their just rights, by the negative vote of the assistants. In March 1644, this dispute gave rise to a motion on the part of the deputies that the assistants and deputies should separate and hold their deliberations in different rooms; and that the concurrence of both houses should be necessary to pass a bill into a law or resolve. The motion prevailed; and thus was established the distribution of the legislative power into two houses, which remains to this day, and has been adopted as a principle in the American constitutions. In Connecticut, however, the practice of the assistants and deputies, sitting and voting together continued, until the October session in 1698, when the legislature passed an act by which that body was divided into two houses.

341. Attempts in Massachusetts to create magistrates for life. It was an opinion among our pious ancestors that great respect should be paid to elderly men, to magistrates and to ministers. This opinion was justified by the scriptures, and productive of very salutary effects. Some persons, carried their attempts farther than was agreeable to public opinion. Before the general court at Boston in May, 1634, Mr. Cotton in a sermon maintained that a magistrate ought not to be turned into the condition of a private man; and the question afterwards coming before the court, was prudently postponed. In May 1636, a law passed to continue certain magistrates or assistants in office for life, as a standing council, and two were chosen for the purpose. But in May 1639, one of the elders giving his opinion that the governor ought to hold his office for life, popular jealousy was alarmed and a bill was presented to prohibit a councilor from exercising his office, unless annually elected to be a magistrate. This bill to quiet the apprehensions of the people was readily passed into a law.

342. Introduction of voting by proxy. As the people were resolutely opposed to the extension of the power of the assistants, always pleading the charter to justify their opposition; so they took the liberty to depart

from the letter of that instrument, when it was judged expedient. The charter vested the powers of government in a court of assistants and the whole body of freemen; making no provision for voting by proxy. But in May 1636, a law passed permitting freemen of remote towns to send their votes by proxy to the court of elections. One reason for this alteration, was, the difficulty of procuring provisions for the whole assembly of freemen. This precedent being established, was afterwards followed by all the towns.

343. Manner of voting. In electing officers, the freemen at first used beans and corn; a bean gave a negative; and a kernel of corn, an affirmative vote. In 1634, pieces of paper were used; those for the governor and deputy governor containing the name of the person voted for; but in choosing assistants, the name of a person was proposed by the governor or presiding officer; those who voted for the person, gave a paper with some writing on it; those who voted against him, gave a blank paper. This gave rise to the manner of electing the council of Connecticut by nomination, which was practised till the formation of the present constitution in the year 1818.

344. The choice of the governor. It was an established law in the colonies to elect one of the assistants to be governor. This law in Connecticut was repealed in 1708, and the freemen were empowered to elect a governor from among their own body at large. But in such estimation were the governor and assistants usually held by the people, that the same persons were almost uniformly re-chosen annually to their respective offices, during life, or during their ability to perform public business. This unchanging confidence in their rulers, was a principal means of the stability of government and harmony of councils, which distinguished the New England republics.

345. Laws of the first colonies. For a few years after the colonies were settled in New England, the magistrates governed by temporary regulations, or discretionary decisions; aiming to bottom all their laws and proceedings on the word of God. But as many