This passage is characteristic both of the man and of the time. The prisoner now arraigned before the magistrates had been set in the stocks, all his property had been confiscated, and his house had been burned down before his eyes. He had been sent back to England, under a warrant, to stand his trial for crimes it was alleged he had committed. In England he had been released from imprisonment in due course of law. Having now returned to Massachusetts, he was brought before the magistrates, “that the country might be satisfied of the justice of our proceeding against him.” As the result of this proceeding, which broke down for want of proof, the alleged offender is again imprisoned, heavily fined, and narrowly escapes a whipping. Under all these circumstances, it becomes interesting to inquire what the exact offence alleged against him was. It was stated by Winthrop. He had made a “complaint against us at the council board.”
“The council board” thus referred to was the royal Privy Council. It represented the king, the supreme power in the state, the source from whence the charter of the Massachusetts Bay Company was derived. The complaint, therefore, charged to have been made, was made to the common superior, and it alleged the abuse, by an inferior, of certain powers and privileges which that superior had granted. It would seem to have been no easy task for the magistrates to point out, either to the prisoner or to the country it was proposed to satisfy, any prescriptive law, much less any penal statute, which made a criminal offence out of a petition to the acknowledged supreme power in the state, even though that petition set forth the alleged abuse of charter privileges.
But it is not probable that this view of the matter ever even suggested itself to Winthrop and his associates. It does not seem even to have been urged upon them by the prisoner. On the contrary he appears to have accepted the inevitable, and practically admitted that a complaint to the king was in Massachusetts, as Burdet had some years before asserted, “accounted a perjury and treason in our general courts,”[171] punishable at the discretion of the magistrates. Morton, therefore, denied having made the complaint, and the magistrates were unable to prove it against him. The most singular and unaccountable feature in the proceedings is that the New Canaan was not put in evidence. Apparently there was no copy of it to be had. Could one have been produced, it is scarcely possible that the avowed author of the libellous strictures on Endicott, then himself governor, should have escaped condign punishment of some sort from a bench of Puritan magistrates. But Winthrop merely mentions that he had “set forth a book against us,” and Maverick says that this was denied and could not be proved.[172] Had a copy of the New Canaan then been at hand, either in Boston or at Plymouth, a glance at the titlepage would have proved who “set [it] forth” beyond possibility of denial.
The only entry in the Massachusetts records relating to this proceeding is as follows:—
“For answer to Thomas Morton petition, the magistrates have called him publicly, and have laid divers things to his charge, which he denies; and therefore they think fit that further evidence be sent for into England, and that Mr Downing may have instructions to search out evidence against him, and he to lie in prison in the mean time, unless he find sufficient bail.”[173]
This entry is from the records of the General Court, held in November 1644. Among the unpublished documents in the Massachusetts archives is yet another petition from Morton, bearing no date, but, from the endorsement upon it, evidently submitted to the General Court of May, 1645, six months later, when Dudley was governor. This petition is as follows:—
To the honored Court at Boston assembled:
The humble petition of Thomas Morton, prisoner.
Your petitioner craveth the favour of this honored Court to cast back your eies and behould what your poore petitioner hath suffered in these parts.
First, the petitioner’s house was burnt, and his goodes taken away.