§ 101]

THE BALLOT

89

100. Judicial development kept pace with political growth. In the first summer in Massachusetts, a man was found dead under suspicious circumstances. The magistrates appointed a body of sworn men to investigate. This coroner's jury accused a certain Palmer of murder. Palmer was then tried by a trial jury (petit jury) of twelve men. All this was in accord with custom in England.1 No Massachusetts law upon the matter had been passed.

In 1634, however, the General Court did expressly establish trial by jury (§ 92),1 and a year later it ordered that a jury of inquest ("grand jury")2 should meet twice a year, to present to the court all offenders against law and public welfare. Thus the first five years saw the complete adoption of the English jury system.

It is said sometimes with much exaggeration—that in the absence of written law, the Puritans followed the Jewish law. But in this supremely important matter of legal machinery, they turned promptly not to the Old Testament but to the English Common Law.

101. At the General Court in May, 1635, the deputies demanded a written code of law. The magistrates were making law, almost at will, in their decisions, after cases came before them (Source Book, No. 65); and "the people thought their condition very unsafe," says Winthrop, "while so much power rested in the discretion of the magistrates." 3

The democratic demand could not very well be openly denied; but for a time it was evaded skillfully. The Court appointed four magistrates to prepare a code; but this committee failed to report. A second committee of "gentlemen" was equally ineffective. Then, in 1638, the Court ordered that the deputies should collect suggestions from the freemen of their several towns, and present the same in writing to a new committee made up partly of deputies.

1 On the origin of the jury in England, see Modern World, §§ 173, 174.

2 The terms grand and petit have reference to the size of the two kinds of jury originally in England.

3 Cf. the democratic demand for written law in early Athens and Rome; Ancient World, §§ 139, 364.

Now matters began to move. The suggestions from the towns were reduced to form in 1639, and sent back to all the towns for further consideration, "that the freemen might ripen their thought," and make further suggestion. The next lot of returns were referred to two clergymen, John Cotton and Nathaniel Ward. On this basis, in 1641, each of these gentlemen presented a full code to the General Court, and the

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NUMBER 1 OF THE

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of

BODY OF LIBERTIES." The original manuscript is now in the Boston Athenæum.

more democratic one, by Ward, was adopted. This famous Body of Liberties (Source Book, No. 78)1 marks splendid progress in law, English or American.

102. The next important fruit of the democratic movement was the division of the legislature into two Houses. For ten years after the "revolution of 1634" (§ 92), the General Court sat as one body. But it was made up of two distinct "orders."

The deputies were chosen each by his own townsfolk, and held office for only a few days. Often they were artisans or farmers, and as a whole they leaned to democracy. The Assistants continued to be in

1 Note especially (1) the provision that no punishment should be inflicted merely at the discretion of magistrates but only by virtue of some express law of the colony; (2) prohibition of monopolies; (3) right of jury trial with right of "challenge"; (4) the "Liberties of Women" and "Liberties of Children "

§ 102]

A TWO-HOUSE LEGISLATURE

91.

tensely aristocratic. They had many additional meetings for judicial business and to aid the governor. They had to know some law, and they served without pay. Only "gentlemen" were qualified for the office, or could afford to hold it. More yet to the point - the hottest democrat did not dream of selecting these "ruling magistrates" from any but the highest of the gentry class.

Naturally, friction was incessant. At the first clash, in the summer Court of 1634, the Assistants claimed "a negative voice," or veto. To grant this was to give as much voting

Br hands the day & node abon written

"MARKS" OF NAHNANACOMOCK AND PASSACONAWAY, affixed to a covenant submitting to an order of the General Court; dated June 12, 1644. From the Massachusetts State Archives.

power to the aristocratic minority as to the democratic ma jority. But the ministers were brought forward to argue for the plan,' and finally it was agreed to.

During this controversy, a pamphlet by Israel Stoughton, of Dorchester, attacked the claim of the Assistants-with what Winthrop calls "many weak arguments." The Assistants called Stoughton before them, forced him to recant, ordered his book burned, deprived him of his office (of deputy), and forbade him to hold any office for three years! The great Puritan leaders had no more place for free speech 2 than for the right of petition (§ 89).

1 The clergy commonly sided with the aristocracy and were often used in this way to bolster aristocracy. The democratic deputies were all earnest church members, and revered their ministers.

2 Thanks to English custom, debate in the General Court was free. Stoughton could have spoken his arguments there with impunity. But the Assistants denied the right of a citizen, outside the legislature, to criticize the government. Winthrop had written a pamphlet in favor of the negative voice"; but the Assistants saw no wrong in argument on that side.

66

The Assistants had now won much the greater weight in the legislature. They were a small disciplined body. They could agree upon plans before the Court met, and could act as a unit in the meeting, much better than could the deputies. Moreover, the Assistants monopolized debate: it was impossible for individual deputies to confront men of such social superiority and such political ability. The deputies saw that they would gain dignity and influence if they sat by themselves;1 and, in 1644, the General Court separated into two "Houses." Thereafter, each "order" had its own officers and committees, and managed its own debates.

This was the first two-House Legislature in America. The immediate occasion for the division was a quaint three-year dispute over a poor woman's pig, which had strayed into the pen of a rich gentleman and had been slaughtered.2 But the real cause lay in the the class jealousy that we have been tracing. When Assistants and deputies could no longer live in peace under one roof, the example of the two-House parliament in England suggested convenient escape from their troubles.

3

1 Compare the like movement in Maryland; § 54.

2 Says Winthrop, "There fell out a great matter upon a small occasion." Three law-suits regarding this pig came before the General Court. Each time the deputies sided with the poor woman; the Assistants, with the gentleman.

8 The law of 1644 refers to European experience as one reason for the division (Source Book, No. 80). For some years the leaders had seen that the change must come (Source Book, No. 75).

CHAPTER XII

LOCAL GOVERNMENT IN NEW ENGLAND

Town meetings are to liberty what primary schools are to science. -TOCQUEVILLE.

103. Most New England towns in the seventeenth century were merely agricultural villages. Farmers did not live scattered through the country, as now, each on his own farm. They dwelt together, English fashion, in villages of thirty or a hundred or two hundred householders, with their fields stretching off on all sides.

Such

104. At first, in Massachusetts, the General Court appointed justices and constables for each settlement and tried to attend to other local business. But from the first, too, on special occasions, the people of a town met to discuss matters of interest, as at the famous Watertown meeting of 1632. gatherings were called by a minister or other leading man, and were sometimes held just before the people dispersed from the Thursday "sermon (the ancestor of our midweek "prayer meeting"). The first Boston meeting that we know of was held at such a time-to choose a committee to divide the town lands (§ 97).

Then in 1633 Dorchester ordered that there should be 2 regular monthly town meeting to settle town matters (Source Book, No. 66). Watertown followed this example the next spring; and soon each town, old or new, fell into line. Each town, too, chose a town clerk to keep records of the "by-laws" passed at the meetings, and elected a committee ("the seven men," "the nine men," "the selected townsmen," "the Select