The founding of New England

by James Truslow Adams

CHAPTER IX | | ATTEMPTS TO UNIFY NEW ENGLAND

As a result of the complete crushing of the power of the Pequots their whole country was opened to peaceful settlement, and the extension of the frontier in that direction became rapid. Within about two years from the signing of the treaty with the savages, the foundations were laid of Guilford, New Haven, Milford, Stratford, Fairfield, Norwalk, and Stamford along the Sound, and of Southampton and Southold on the eastern end of Long Island, thus making a continuous line of English settlement up to the Dutch boundary, if not, indeed, within it.[^[494]]

For its size, New Haven was undoubtedly the wealthiest colony in New England, its assessed valuation, the year after it was planted, having been £33,000, or the present equivalent of, perhaps, $700,000.[^[495]] Its founders, under the leadership of the Reverend John Davenport, a Nonconformist London clergyman, and Theophilus Eaton, a schoolmate of his, had arrived in the early summer of 1637, just in time to take part in the Antinomian controversy and the taxes for the Pequot war. Mr. Davenport was requested to contribute to the former, and Mr. Eaton to the latter.[^[496]] Their company was a distinguished one, including several other wealthy London merchants besides Eaton; five ministers; four school-teachers, among whom was the first president of Harvard; the father of Elihu Yale, the founder of Yale University; and Michael Wigglesworth, the “lurid morning star” of New England verse.[^[497]] Both Davenport and Eaton had been, for some years, members of the Massachusetts Bay Company, and that company's colony made great efforts to retain the new body of settlers within its own bounds. While the leaders took under consideration the various offers made to them, they either found them unsatisfactory, or had already determined to establish an independent colony of their own.[^[498]] After Eaton had examined the country around Quinnipiack, it was decided to plant there, and seven men were left to guard the site during the winter, the whole company following in the spring. Not only were the resources of the colonists unusually ample, but their preparations seem to have been exceptionally complete, and the little town soon contained the most stately dwellings in all New England. Some idea of their scale may be gained from the reputed presence in Davenport's of thirteen fireplaces, and of nineteen in Eaton's.[^[499]] The intention, apparently, was not only to found a Puritan state, but to have it become the chief mercantile centre of the New World, which accounts for their having built, as one of their Massachusetts critics wrote, “as if trade and merchandize had been as inseparably annexed to them as the shadow is to the body, in the shining of the sun.”[^[500]] One disaster followed another in their business ventures, however, and the dreams of the merchant-founders were never realized.

Davenport and most of his company were not only Puritans, but of the strictest sect, and the Bible Commonwealth which they proceeded to form was of the most extreme type. Like the Connecticut and Rhode Island people, they were without a charter, and were mere squatters upon the soil; but in June, 1639, a meeting was held of the “free planters,” to discuss a frame of government to replace a previously signed plantation covenant, now lost. We have no knowledge of what constituted a “free planter,” but the term undoubtedly excluded a large number of males in the settlement. The proceedings took the form of queries put by Mr. Davenport, upon which those present voted by raising hands. As a result of unanimous votes at this meeting, the fundamental agreement provided that the franchise should be restricted to church members, and that the free planters should choose twelve men, to whom should be intrusted the sole right of selecting from among the rest of the colonists those who should become church members and freemen, and who were to have the power of appointing magistrates from among themselves, of making and repealing laws, and, in fact, of performing all public duties.[^[501]] This was legalizing the most extreme claims of the Massachusetts oligarchy. Only one voice, apparently that of Eaton, was raised to protest “that free planters ought not to give this power out of their hands”; but he was, of course, overruled. Four months later, at the October court, it was further voted that “the worde of God shall be the only rule to be attended unto in ordering the affayres of government in this plantation.”[^[502]] As had been the case in Connecticut, no mention had been made of allegiance to England; but in this additional step, the new colony swept away all obligation to observe the common and statute laws of the mother-country. The conflicting texts of the Bible, as arbitrarily chosen and interpreted by the small self-perpetuating group of rulers, became the only laws that might safeguard, or hazard, the rights of dwellers in New Haven and the affiliated church-towns which soon sprang up. The reactionary thought of the framers of these fundamental orders, however, was to be without appreciable influence upon the growth of colonial political theory as then developing; for New Haven was to have only a quarter of a century of independent but unimportant life before being absorbed by Connecticut, while a more and more democratic tendency was manifesting itself in all the colonies, even in Massachusetts.

The effects of the frontier life, and of the distance separating England from her colonies, were already beginning to show themselves strongly. The semi-independent communities which had been established in Rhode Island, Connecticut, and New Haven were entirely without legal authority; and the two latter, in their “constitutions,” had utterly ignored the existence of any power outside of themselves. The situation was not wholly overlooked in England, but as the crisis in public affairs there was rapidly drawing near, the authorities were helpless to interfere. A new demand for the return of the Massachusetts charter, when flatly refused by that colony in 1638,[^[503]] could not be followed by any show of force; and during the next twenty-two years—which were those of the Civil War, the fall of the Stuart monarchy, and the reign of Cromwell—the New England colonies pursued their way almost wholly without reference to the power of England.

The influence of the frontier was being felt in their domestic concerns as well. Although the most aggressively radical of the inhabitants of Massachusetts had, perhaps, gone to the other colonies, there to establish themselves in greater freedom, the struggle of the citizens continued, nevertheless, against the arbitrary power of their government. From the first, the body of magistrates had acted in a judicial, as well as an executive, capacity. The only rule by which they were guided is indicated by a resolution in the General Court of 1636, which provided that they should “determine all causes according to the lawes nowe established, and where there is noe law, then as neere the lawe of God as they can.”[^[504]] As English law, in many cases, was not justly applicable, and as, in others, it was largely neglected, this really meant the comparatively few laws already enacted in the colony, and the same arbitrary selection and interpretation of Old Testament texts that we have just noted in New Haven. As the magistrates acted as both attorneys and judges, and as no appeals were permitted from their decisions, no accused person had any protection against them. Anyone, therefore, who might be obnoxious to the ruling powers on account of his views, could not hope for justice; and the so-called trials of Mrs. Hutchinson, Wheelwright, and other notable offenders, were, in reality, not trials at all, but “relentless inquisitions used by the government for the purpose of crushing opposition.”[^[505]] That condition was not, indeed, peculiar to Massachusetts, and was probably just as true of contemporary England. It was Hooker's glory in Connecticut to have raised his voice, as the leader of that colony, to plead for a legal restraint upon this arbitrary exercise of the judicial power of government, and for the creation of a body of fundamental law. In 1639, a committee was appointed in that colony for the purpose of drawing up such a code. The same had been formally demanded in Massachusetts even earlier, but there the wishes of the people had been steadily opposed by their leaders.

While the Massachusetts trials of the type just noted were exceptional, and in general, when passions were not aroused, the ordinary course of justice was fairly equitable, nevertheless, the entire absence of any restraint upon the unbridled will of the magistrates was a source of apprehension to the more serious thinking and liberty-loving residents of Massachusetts, outside the ring of authority. Not only was any opposition to the course pursued by the government liable to result in banishment, with the complete uprooting of a man's life, and perhaps the financial ruin of himself and his family, but in trivial matters all the inhabitants, and more particularly, of course, the four fifths who were not church members, were liable to constant interference by the authorities. Such a law, for example, as that declaring that whosoever should “spend his time idlely or unproffitably” should suffer such penalty “as the court shall thinke meete to inflicte”[^[506]] was typical, both in its utter lack of definition of the nature of the crime, and in its failure to specify the penalty to be incurred by the criminal.

In spite of the demands of the people in Massachusetts, however, it was not until 1640 that a draft of a fundamental law seems to have really been considered. The clergy and most of the magistrates had been opposed to any limitation of arbitrary authority, and had fought the requests with what their modern defender has called the weapon of “a good-natured procrastination,” but which may have worn another aspect to some at the time.[^[507]] Finally, in 1641, an Abstract of Laws, or Body of Liberties, was passed, which marked a distinct step forward, though by no means assuring full protection. One draft, which was not, however, accepted, was based entirely upon Bible texts, of which, characteristically, but two were drawn from the New Testament and forty-six from the Old.[^[508]] Additional safeguards were required, and four years later, the whole discussion as to specific penalties for specific offenses was again reopened. The clergy and Winthrop still opposed any limitation upon judicial authority, the Governor, indeed, going so far as to say that God had made specific penalties only in certain cases, and as “judges are Gods upon earth,” their power should not be more limited than his—which might be denominated strong doctrine.[^[509]] In spite of all opposition, however, a new code, based in part upon the Body of Liberties, was finally secured and printed in 1648, twenty years after the first demand, and ten after Hooker's famous sermon at Hartford.[^[510]]

The antagonism to the power of the magistrates was manifested also by new episodes in the struggle between them and the more democratic deputies, which we noted as beginning at the time of the Connecticut emigration. A dispute over the ownership of a sow, between a poor widow and a rich man notorious for his unjust business dealings, was finally brought to the General Court for decision. The evidence was by no means convincing, and the Court was divided, with a majority of the magistrates in favor of a verdict for the rich Keaynes, and a majority of the deputies in favor of the poor widow. The point was thus raised again as to whether the small number of magistrates, by a negative vote, could block the will of the much larger body of deputies.[^[511]] Winthrop wrote a treatise on the question, appealing to certain English precedents and the Old Testament, and stated that, if the magistrates were not allowed to veto the action of the deputies, the colony would be a democracy and “there was no such government in Israel.”[^[512]] So implacably did the grim shades of Moses and Aaron block the paths of Boston Common. The magistrates, in view of the strong opposition that developed, offered to leave the matter to the clergy, and to give way if the decision were adverse. They knew, of course, that it would not be so, and Winthrop records that it was “their only care to gain time,” until the people could be brought to the heel of their clerical leaders as usual. As part of the plan, the members of the Court were asked to take advice before the next meeting; and it is interesting as showing the normal danger for the ordinary citizen in discussing public matters, that a special act should be thought necessary making it “no offence for any, either publicly or privately, to declare their opinion in the case, so it were modestly.”[^[513]] The following year, a compromise was effected, which, however, was distinctly in favor of the magistrates; and thereafter the deputies and the magistrates sat as two separate houses, each with a negative vote on the other.[^[514]]

Another incident in the struggle, which soon occurred, involved both the question of the power of the local government over the colonists, and the relations of the colony to the home government in England. In 1644, it was suggested to the General Court that the condition of the large number of unrepresented inhabitants be improved by increasing the civil privileges that a citizen might possess without being a church member, such privileges then being limited, apparently, to a small share in local town business.[^[515]] Nothing, however, was done, and two years later, a petition signed by a Dr. Robert Child, Samuel Maverick, and five others was presented, reciting that there were many thousands in the colony who were debarred from all participation in government, although they paid taxes and were subject to military and other duties. Child was a newcomer, “a gentleman and a scholar,” and a graduate of the University of Padua. Maverick was the richest of the “old planters,” and the only freeman who was not a church member—a privilege which he owed to the circumstances connected with the first planting of the colony, as already related. Thomas Fowle, another of the signers, was a merchant; while yet another, David Yale, was a man of property, and both a stepson of Theophilus Eaton of New Haven and a brother-in-law of Governor Hopkins of Connecticut. At this very time, he was acting as attorney for the Earl of Warwick.[^[516]] The motives of the signers may not have been wholly disinterested, but the effort to make out that they were persons of no importance in the colony has been overdone.[^[517]]