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1646

BOTH PARTIES APPEAL TO ENGLAND.

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tioners showed too that there they had something more in view than the removal of an unjust restriction, and we may be sure that those further designs were understood by the government of Massachusetts. Johnson has aptly described the situation with an unwonted approach to epigram. Some, he says, were for a plebsbytery, some for a presbytery 1 presbytery1 The petitioners, like most religious reformers, sought, not freedom, but the substitution of one restriction for another. The circumstances of the time made such a movement specially dangerous. In England the battle between Presbyterian and Independent was at its height, and the issue hung in the balance. The Congregational clergy of New England were bearing a prominent part in the struggle. Whatever may have been the merits of the dispute as regards England, there could be little doubt in the case of Massachusetts. Theoretically, all religious disabilities are equally to be condemned. Practically, the hardship imposed on those whom the existing system disfranchised was as nothing compared with the hardship of imposing Presbyterianism on the colony. The one might cause occasional disaffection, the other would have been a signal for civil war.

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The measures taken by the government are the best proof of the position and influence of the petitioners. Winslow Gorton, it will be remembered, had carried his England us grievance to England, and those in power had Plymouth shown themselves not unfriendly to his claims. chusetts. With attacks impending from two quarters, it seemed needful that the colonial government should have some special representative in England. Their choice fell on Edward Winslow. Vassall's agitation extended to Plymouth as well as Massachusetts, and thus Winslow had a direct interest in opposing the petitioners. His sufferings at the hands of Laud and 1 Johnson, b. iii. ch. 3.

his position as one of the earliest leaders of Puritan colonization would insure him a favourable hearing. A proposal was made to associate Winthrop with him. Unwilling though the Governor was to undertake an embassy of which he could ill afford the cost, and which his advanced age made irksome, yet he expressed himself ready to obey the will of his countrymen. But the need of his presence at such an emergency and the dread that he might be absorbed by public life in England prevailed.1 Winslow's written commission merely empowered him to answer the things already alleged against the Massachusetts government by Gorton, or any other charges that might arise. Over and above this he was intrusted with discretionary powers to meet certain questions and complaints which might be put forward by the Commissioners themselves. The main points in these were the same which had been already embodied in the resolutions of the Assistants and the Elders. Winslow was to maintain that the charter gave a free donation of absolute government, which would be violated either by appeals to England, by any claim to jurisdiction made by the Admiralty, or by the appointment of a General Governor. The exclusion of those who were not freemen was also defended on the ground that the privileges of that order were expressly conferred by the charter, and might therefore be given or withheld at the pleasure of the grantees.2

At the same time the Court took the somewhat perilous step of exactly defining the constitutional relations between the colony and the English government. To this end the Assistants and the Elders, each body separately, made a formal statement of

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2 Winslow's commission is in the Records (vol. iii. p. 93) and in Winthrop (vol. ii. pp. 299-301). Winthrop appends the private instructions given to Winslow.

1646

PUNISHMENT OF THE PETITIONERS.

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their views. These declarations are of great interest. Among the Assistants there was a division of opinion. Some held that Parliament had the right to overrule the Court. At the same time they wished to petition. for more extended powers. Winthrop, in all likelihood, was among those who thought differently, if we may judge by the minuteness with which he sets forth their views. They held, in his words, that by our charter we have absolute power of government; for thereby we have power to make laws, to erect all sorts of magistracy, to correct, punish, pardon, govern, and rule the people absolutely.' They admitted, at the same time, a certain claim which Parliament had to allegiance, but they made no attempt to define that claim or specify its nature and extent. This view was confirmed by the opinion of the Elders. They added, furthermore, that the colonial government could not be called to account by Parliament, except on the ground that any of its proceedings were inconsistent with the formal provisions of the charter.

The Court, having thus defined its constitutional position, proceeded to deal with the petition. That the Trial and petitioners really aimed at the introduction of punishment Presbyterianism can hardly be doubted in the petitioners. face of their later conduct. We may be sure too that their opponents understood that from the outset. But no such purpose was expressed or even implied in their petition. Accordingly the Court was precluded from even noticing what in all likelihood was the uppermost motive with many of its members. A series of charges, twelve in number, was drawn up against the petitioners.2 Substantially the charges came to this: they had defamed the government of the colony, and thereby discredited it both with its own subjects

1 These are very fully given in Winthrop (vol. ii. pp. 279–83).

2

Winthrop, vol. ii. p. 286; Mass. Records, vol. iii. pp. 90, 91.

and in England. One head of the accusation merits special notice. The petitioners sought so to interpret the charter that it entitled any Englishmen settled in Massachusetts to the privileges which it granted, instead of conferring those privileges on a certain limited body, with the right of self-extension.

Each of these charges was met in detail by the petitioners, and the answers, together with the rejoinders of the Court, are fully given by Winthrop. Most of these were little more than verbal fencing, and left the main points still in dispute. The really important questions were the exclusion of those who were not church-members from civil rights and the right of appeal to the government at home. In the latter were involved the whole relations between the colonies and the mother country. According to the petitioners, the Company was but a corporation like a merchants' company in England. The Court contended that there was a difference between one corporation and another, and that the position of the colony necessarily emancipated it from obedience to the laws of England generally, and left it only amenable to such laws as specially applied to foreign plantations. This doctrine. was stated twice, each time in emphatic words: 'Our allegiance binds us not to the laws of England any longer than while we live in England, for the laws of the Parliament of England reach no further, nor do the King's writs under the great seal go any further.' 'There is a difference between subjection to the laws in general, as all in England are, and subjection to some laws of state proper to foreign plantations.' It does not appear whether it is the formal judgment of the Court or the comment of Winthrop which finds a voice in these prophetic words: Among the Romans, Grecians, and other nations, colonies have been esWinthrop, vol. ii. pp. 287-90.

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1646

PUNISHMENT OF THE PETITIONERS.

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teemed other than towns, yea, than many cities, for they have been the foundation of great commonwealths. And it was a fruit of much pride and folly in those petitioners to despise the day of small things.'

One other point is worth noticing, as illustrating a sophism which ran through much of the reasoning of New England politicians. The petitioners complained that the laws of the colony were repugnant to the laws of England. To this the Court answer that this cannot be; for no law of the realm can be contrary to the law of God and right reason,' since, if anything hath been otherwise established, it was an error, and not a law, being against the interest of the law-makers, however may bear the form of a law.' The conclusion that a law of the colony may be contrary to the law of God and right reason serves as a reductio ad absurdum. Here we have exactly the same fallacy that underlies Winthrop's argument as to political liberty. No one would object to the exercise of authority, given an infallible ruler.

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The policy of the petitioners may have been fraught with real danger to the colony, but assuredly there was no justification for the severity of the punishment imposed on them. Childe was fined fifty pounds and Smith forty, on the ground that their offence was aggravated by their position as new-comers. The rest were fined thirty pounds, excepting Maverick. He had not as yet lodged an appeal to the English government, and his fine was therefore limited to ten pounds.1

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Childe now resolved to carry his case himself to England. On the eve of his intended departure the Further Court ordered that his papers should be ings searched. This was done, and two petitions petitioners. were found, together with a list of queries, all addressed to the Commissioners for Plantations. The queries dealt with the validity of the patent and the Winthrop, vol. ii. p. 291; Mass. Records, vol. iii. p. 94.

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