The charter goes on to give authority to commanders, captains, governors, and all other officers for the time being, “to correct, punish, pardon, govern and rule all such the subjects of us, our heires and successors, as shall from tyme to tyme adventure themselves in any voyage thither or from thence, or that shall at any tyme hereafter inhabit within the precincts and parts of New England aforesaid, according to the orders, lawes, ordinances, instructions and directions aforesaid, not repugnant to the laws and statutes of our realme of England as aforesaid.” And in order to make the laws of these officers known, it is provided, as printing would not be practicable, that they shall be “published in writing under theire common seale.”
But it would seem, notwithstanding, that the authority exercised by the company was at first executive rather than legislative; and Mr. Savage remarks, that the body of the people “submitted at first to the mild and equal temporary usurpation of the officers, chosen by themselves, which was also justified by indisputable necessity.” The first “Court of Assistants” was held at Charlestown, Aug. 23, 1630; and the first thing propounded was, “how the ministers shall be maintained,” and it was determined, of course, at the public charge. Gov. Winthrop, Lieut.-Gov. Dudley, and the assistants were present; and this body carried on the government—what there was of it—“in a simply patriarchal manner,” until “the first General Court or meeting of the whole company at Boston, 19 October,” 1631, and this was held “for the establishing of the government.” It was now determined that “the freemen should have the power of choosing assistants, and from themselves to choose a Governor and Lieut. Governor, who with the assistants should have the power of making laws and choosing officers to execute the same.” This is the brief history of the origin of a local government in the colony of Massachusetts Bay, if it may be so called. It was autocratic for the first year and afterwards, although fully assented to by a general vote of the people.
At first, of course, there were no laws; and punishments were adjudged and inflicted, under the authority of the charter, not only for trivial matters, as they would be now considered, but for very questionable, if not ludicrous, matters,—and all this, it would seem, without respect of persons: for, as early as Nov. 30, 1630, at a court, it was ordered that one of the assistants be fined five pounds for whipping two persons without the presence of another assistant, contrary to an act of court formerly made; so that this very early exercise of authority was not under a law made after the fact. At the same court another person was sentenced to be whipped for shooting a fowl on the sabbath day; and this, probably, was ex post facto. In 1631, a man was fined five pounds for taking upon himself the cure of scurvy by a water of no value, and selling it at a dear rate; to be imprisoned until he paid the fine, or whipped. In 1632, the first thief was sentenced to lose his estate, pay double what he had stolen, be whipped, bound out for three years, and after that be dealt with as the court directs. Other offences, or what not, were punished by “taking life and limb, branding with a hot iron, clipping off ears,” &c. Indians also were proceeded against, in many cases by fines, penalties, and punishments.
John Legge, a servant, was ordered “to be whipt this day [May 3, 1631] at Boston, and afterwards, so soon as convenient may be, at Salem, for striking Richard Wright.” Richard Hopkins was ordered to be severely whipped, and branded with a hot iron on one of his cheeks, for selling guns, powder, and shot to the Indians. Joyce Bradwick was ordered to pay Alexander Beck twenty dollars for promising marriage without her friends’ consent, and now refusing to perform the same. This was in 1632, and is undoubtedly the first breach-of-promise case that had occurred in the colony.
It was ordered if any one deny the Scriptures to be the word of God, to be fined fifty pounds, or whipped forty stripes; if they recant, to pay ten pounds, and whipped if they pay not that. A man, who had been punished for being drunk, was ordered to wear a red D about his neck for a year.
The case of one Knower, at Boston, 1631, is spoken of as curious, showing that the court, usurper and tyrant as it was, had no intention of being slighted, underestimated, or intimidated. “Thomas Knower was set in bilbows for threatening the Court, that if he should be punished, he would have it tried in England, whether he was lawfully punished or not.” And for this he was punished.
1631.—Philip Radcliffe, for censuring the churches and government, has his ears cut off, is whipped and banished.
1636.—If any inhabitants entertained strangers over fourteen days, without leave “from those yt are appointed to order the Town’s businesses,” they were made liable to be dealt with by the “overseers” (before there were selectmen) as they thought advisable.
In 1637, “a law was made that none should be received to inhabit within the jurisdiction but such as should be allowed by some of the magistrates; and it was fully understood that differing from the religions generally received in the country, was as great a disqualification as any political opinions whatever.” On this subject Judge Minot says, “Whilst they scrupulously regulated the morals of the inhabitants within the colony, they neglected not to prevent the contagion of dissimilar habits and heretical principles from without.... No man could be qualified either to elect or be elected to office who was not a church member, and no church could be formed but by a license from a magistrate.”
In 1640, in the case of Josias Plaistow for stealing four baskets of corn from the Indians, he was ordered to return eight baskets, “to be fined £5, and to be called Josias, and not Mr. Josias Plaistow, as he formerly used to be.”