5.   The Body Of Liberties - 1636-1641

Apart from the creation of a bicameral legislative body, the outcome of the negative voice controversy was a promise made to the freemen that they would have a body of laws drafted. This time, the move was typically English in essence. Though England is famous for her unwritten constitution and her legal system based on custom and the slow process of accretion of precedents, the Barons had already successfully obtained the Magna Carta from King John in 1215, which amounted to a written guarantee of their rights and liberties, and a pledge that justice would be based only on known laws and what later came to be known as "due process" - which guaranteed trial by jury for instance - and not on the discretionary powers of judges, ideas that must have inspired the Massachusetts freemen in their struggle against the magistrates. Similarly, the freemen wanted a guarantee that their rights and liberties, as English-born subjects, would not be jeopardized, they wanted to restrain not the king, but those who thought to be naturally above them: the Magistrates. They wanted "a government of laws, not of men" which Morison has summarized - quite excessively - as "democracy against theocracy",[77] the deputies' case being simplified as democracy and the magistrates' as theocracy. We have already seen that there was no such thing as democracy in Massachusetts in the 1630s, but that the real struggle concerned the amount of participation of the freemen, and thus of church members, in that aristocracy. This leads to a discussion on the issue of theocracy, the topic of the following chapter. What we can say here is that such an oversimplification betrays the real nature of the system and could easily be misleading.

John Winthrop was altogether against the project of drafting a body of laws and did all he could to keep the process at a standstill. His two arguments, as they can be found in his Journal for the year 1640[78], were that first and foremost a written codification would make it clear that the settlers had departed from the laws of England, which had been explicitly forbidden by the Charter. As we have seen, the consequence could be that the Charter be confiscated, as Virginia's in 1624. Winthrop's other argument was more complex. He was in favor of an English-like law-making process based on progressive accretion of case-laws and judicial precedents. He wanted the magistrates to have a free hand to use their discretion in searching the Bible for each case as it would arise. To him the Colony was too young to be paralyzed by a wholesale, rigid and compelling body of laws. This argument, however wise, did not satisfy the freemen. How could they be sure that the precedents that would afterwards have to be followed would be the right ones?[79] How could they be sure that their rights, liberties and opinions would be respected if entrusted to magistrates with an obviously different conception of government? Discretionary powers were too close to arbitrary powers, and they reminded them too much of Charles I's personal rule, and Stuart absolutism in general. It was too dangerous and they would be heard.

The diverging interests of the two groups caused the process to be extremely long in view of the young age of the Colony, and it can be divided into at least four phases ranging from 1635 to the final adoption of the Body of Liberties in December 1641. At first, the General Court asked Winthrop and Bellingham to review all the existing laws and to propose amendments and alterations to the Court. As could be expected, nothing was done. The business was thus entrusted to a broader committee composed, aside from Winthrop and Bellingham, of Governor Haynes and Deputy Governor Dudley, the former governor, who had defeated Winthrop in 1634 because he opposed the negative, though himself a magistrate. They were to draft such laws as they thought would be beneficial to the Commonwealth. Yet Winthrop's opposition to the whole project prevented any constructive work to be done.

The General Court of May 1636 appointed an even broader committee with the task to draft laws "agreeable to the word of God, and which might be the fundamentals of this Commonwealth"[80], therefore an unalterable legal basis, according to the Bible. The novelty in this committee was that it was composed not only of laymen[81], but also of such clergymen as Hugh Peter, Thomas Shepard, and more significantly John Cotton. We shall return to the implications of clergymen being asked to draft a body of civil laws in the final discussion on theocracy, but we can already notice that it was perfectly understandable and consistent to have the help of clergymen when drafting laws supposed to be drawn from the Bible where there was no existing legislation. Who was more qualified but them for that task? Competent as this group may have appeared in theory, it was distracted from its task by the traumatic events of the year 1637, namely the war against the Pequot Indians and the Antinomian Controversy, which led to the banishment of Anne Hutchinson and her followers, and the departure of young Governor Vane to England as soon as his term ended.

Curiously, the only productive member of the Committee was John Cotton, who himself had been involved in the Antinomian Controversy for having influenced and inspired Anne Hutchinson in both Old and New England. The Code he produced came to be known as "Moses His Judicialls" and was probably the best example available of a practical adaptation of the theocracy of post-exilic Israel to Massachusetts. Every article was supported by marginal references, and his aristocratic opinions were reflected in his proposal to have the Magistrates elected for life. Appealing as this Mosaic Code might have been to the freemen, the life-term provision for magistrates was enough for the deputies to reject the draft. However, Cotton's labors had not been in vain, for his friend John Davenport used his code as the fundamental law of New Haven in 1639.

Seeing that three years had already elapsed and that nothing near an acceptable body of laws had been achieved so far, the deputies resorted to a much different method. On March 12, 1638, they asked the freemen in their towns to assemble and draft lists of heads of laws they wished to see in the codification, and to communicate them to the Governor for further revisions in a standing council also composed of such ministers as Peter, Philips, Bulkley, Shepard, and Nathaniel Ward. This appeal to every citizen in the law-making effort, although it would be moderated by men of the "higher sort", was a definitely democratic move, though confined to a restricted group of the adult male population. This shows that the Deputies strongly favored a wider electorate as a guarantee that the governed have a voice in the political affairs of their Commonwealth, which itself reveals the extent of self-government in early New England.

To make a long story short, we should say that the committee to which the preparatory work of the freemen had been handed was as (little) productive as its predecessors, and when, in November 1639, the General Court eventually asked its members to present the result of their work, they only came up with two drafts, one being almost identical to "Moses His Judicialls", the other being a code made by Reverend Nathaniel Ward, the bulk of which was to become the 1641 Body of Liberties. The General Court combined the two and submitted the product of their work to the freemen in each town for a second reading, a practice which was hotly disapproved of by both Winthrop and Ward, thus showing their elitist distrust even in regenerate men. Be that as it may, this movement was perfectly consistent with the original appeal to the freemen, and the circle was thus complete. The freemen's suggestions were debated in the next General Court, and a near-final body was at last adopted in December 1641. It became the fundamental law of the Commonwealth and thus would not be alterable. It was also put to the test until 1644, when it was to be completely ratified.[82]

Unlike the whole process that preceded its adoption, the content of the Body of Liberty is for the most part irrelevant in a discussion on citizenship and the participation of the people in the political life of the Colony, for it did not deal with issues treated in this chapter, but rather with civil and criminal laws, and the protection of the individual. However it contained a few interesting constitutional provisions, mostly making existing practices explicit, which deserve attention. Among them, it was stipulated that, even though church membership was a sine qua non for freemanship, the loss of church membership - through excommunication or censure - should not "degrad any man from any civill dignities, office or authority he shall have in the Commonwealth". The same principle had also been applied in Plymouth.[83]

Another article of the Body of Liberties granted the freemen of every town the power to make by-laws and to elect selectmen - something like municipal officers - for the regulation of purely local matters, provided that the by-laws were not contrary to the laws of the Colony - a practice actually dating back to a 1635 law. In a way, the laws of the Colony were already supposed to be agreeable to the laws of England, as the Charter demanded, so technically, if the bylaws were not contrary to the laws of the Colony, they would not be contrary to the laws of England either. This early example of decentralization - quite contrary to the centralizing efforts of Charles I in England[84] - reinforced the struggle of the freemen to secure their local interests, in the same manner as the right to elect deputies locally had a few years before. Similarly, we shall see what consequences the controversy around Robert Child's Petition had on the birth of democracy in local politics.

6. Robert Child and the Remonstrance - 1645-1648

Arrived in Massachusetts in 1645, Robert Child has been described as "the best educated man among the early settlers".[85] A rather wealthy man interested in the latest industrial developments of his times, he invested heavily into the nascent industry of New England and became a close friend and business partner of John Winthrop, Jr., the son the famous Governor. He was a liberal[86] and a Presbyterian, like many other Englishmen in those troubled times in England, a religious characteristic that happened to be quite unfortunate in Massachusetts, because he could therefore not be a visible saint, and was consequently barred from voting and holding office, and was also forced to attend Congregationalist services.[87] Accordingly he took the lead of a small group of politically discontented men who prepared a petition which they presented to the General Court in May 1646. The document itself, entitled "Remonstrance and Petition of Robert Child, et al. to Massachusetts General Court, 1646", contains three major demands justified by one warning to the rulers of the Colony: however distant they might have been from England, all the settlers were still English subjects, Massachusetts was in no way a free state, though the rulers acted as if it was one, and they were still legally bound by the Charter not to pass laws contrary to the laws of England. If they were not heard, the remonstrants threatened to appeal to Parliament. Had they actually done so, it would have meant closer control of the affairs of the Colony probably by a Governor appointed in England, and as had been the case in Virginia in 1624, the Charter would have been confiscated, and self-government lost. The stakes were very high indeed for the rulers of Massachusetts.

The three demands were as follows. First, since the colony was supposed to be subjected to England, and since the Charter said so, the remonstrants asked for laws with a more English character, which probably included the following two demands. Indeed the second called for the establishment of religious toleration, so that Presbyterians like Child or Anglicans like Samuel Maverick, another remonstrant who, as a reward for his hospitality in the earliest days of the settlement, had been admitted to freemanship before the religious requirement was applied, could worship freely, have their children baptized, and take part in the Lord's Supper. The third demand, and apparently the most relevant in a study of citizenship, was that the religious requirement of 1631, restricting freemanship only to visible saints, or church members, be dropped, thus letting non-church members but also non-Congregationalists the right to vote and hold office. Their argument was that it was unfair that "many thousands in these Plantations of the English Nation free born, quiet peaceable men", honest taxpayers who had supported both church and state and who, through their financial participation in the life of the Colony, deserved to have a voice in it, were denied that right.[88] This demand was consistent with the earlier constitutional history of Massachusetts, since at first only the stockholders, the men who put their capital in common for the advancement of the "venture", had been allowed to make decisions. Since the Company had become the Commonwealth, the stockholders had been replaced by the taxpayers, and it would therefore have been normal that these taxpayers be given a voice in the affairs of the government, as it had been the case long before universal adult suffrage. For a long time throughout Europe indeed, the suffrage was limited to men who could either qualify in terms of property holding, or who could pay a "poll tax".

Basically, Child and his followers wanted the "new" in New England to be less conspicuous, and asked to suppress the innovations they found too Puritan in essence, all of which had a religious basis, at the civil, political and religious level.[89] Out of the three complaints, two are actually relevant for our study, because interconnected, namely the abolition of the voting requirement and of the denial of church membership to the unregenerate and non-Congregationalists. If but one of these two had been applied, it might perhaps not have introduced total democracy in Massachusetts, but would have been fairly close. If the religious requirement had been dropped, it would have meant that all the men who had not qualified as visible saints, be they Congregationalists or not, would now be granted citizenship. This would have meant "manhood suffrage", since as we have already seen servants and women would not be allowed to vote. The second demand about religious toleration would have enabled all the Anglicans and Presbyterian to join with the Congregationalists in the enjoyment of the Sacraments, and thus to be accounted church members. So technically, even if the religious requirement had not been dropped, all the free men would qualify for church membership and consequently for citizenship, which would have also meant indiscriminate "manhood suffrage".

If these changes took place, all the free men[90] would elect their representatives, locally and at large, who would make laws for them directly (the deputies) and indirectly (the magistrates, who represented God, but for the good of the community). Thus Massachusetts would be a democracy in the same sense as Ancient Greece was, since suffrage was not restricted to a group of the eligible mass: the free men. However, one sizable difference with Ancient Greece was that, in Greece, it was a direct democracy in which every citizen voted directly for or against the laws, whereas Massachusetts, like the other colonies in the New England Confederacy, was based on a representative system. The system in Massachusetts was even more complicated since its assembly was bicameral. Therefore the difference is that the Greek system made the use of the negative impossible, whereas it was used by both houses in Massachusetts. This particular device alone prevented Massachusetts from becoming a democracy. The use of the negative by the lower and more numerous house has always been intended as a safety against potential arbitrary decisions made against the will of the majority. However, its use by the upper house, usually smaller in number, means that the will of the majority is not necessarily taken into account and reflected.

Therefore Child and the remonstrants, through an apparent conservatism, would have introduced (some form of) democracy at large, at colony-level, in America, had their Petition been better received. To a certain extent, we can call them the earliest American democrats. However, they probably did not want democracy as a political ideal, in the same manner as the deputies earlier on, and would have surely rejected the term democrats as a sort of insult.

Be that as it may, their opinion was widely circulated in Massachusetts, and was answered to by strong counter-propaganda issued by Winthrop and Dudley. They systematically answered every point: being a free-born Englishman was not enough to vote; if the Remonstrants were so virtuous, they could apply for church membership and thus for freemanship; if they wanted religious toleration, they were free to leave and go to Rhode Island, an opinion about dissenters that was also developed in Nathaniel Ward's Simple Cobbler of Agawam in 1646. The problem was that, at the time they were not quite free, since they had been jailed, during which time Edward Winslow of Plymouth was sent to London to explain the situation and reassure the Parliament of the good intentions of the rulers of Massachusetts. Thus when Child's letters of complaint reached England, he was not taken seriously. Once freed, he was judged, found guilty of sedition, heavily fined and went back to England, never to return to that New England in whose industrial development he had been so interested.

7. The Township Act and Local Democracy - 1647

Although it has never been treated as such,[91] it is highly possible that the revolutionary Township Act of 1647 was a consequence of the previous controversy. Indeed the General Court decided that non-freemen would now be allowed to vote for, and even become, selectmen. Given that local politics was simpler and much more basic than colony-level politics, since there was no assembly and thus no negative, this act was the birth certificate of democracy in Massachusetts. Serving on a jury, voting and holding office were no longer restricted: all that was required except being of age (twenty-one) was to take the oath of loyalty to the colony, which was much less demanding than the oath of 1631. An underlying reason behind this radical change may have been the decrease in the number of church members in each town. However, the danger was unchanged, non-freemen were supposed to be deprived of the wisdom necessary to vote for the right person, even though they were advised by the ministers. But it might not have been seen as too dangerous since only local affairs were concerned, and thus the commonwealth as a whole would not be endangered by unworthy elements. If it cannot be denied that a definite advance toward a broader and less restricted political participation had taken place - K. Lockridge has estimated that more than ninety per cent of the Dedhamite men over twenty-four years of age were entitled to vote after 1647 - we must also mention the fact that this level of participation was short-lived. Indeed, a new pattern of restriction was started in 1658, in the form of a property-based requirement: only men possessing a twenty-pound taxable estate were allowed to take part in local elections. However this move did not dramatically reduce the body of voters, since a 1666 voting list shows eighty-three out of the ninety-one male taxpayers of Dedham. In 1670, eighty pounds of taxable estate were required, but this measure was not really applied in Dedham since those who could vote before were not deprived. This measure was said to have been intended to bar the younger men from the political life of the towns, still in the aristocratic assumption that age was a guarantee of wisdom. Indeed, unless they inherited, men often had to wait till mid-life to reach the eighty pounds of taxable estate, and some never managed to reach that amount. In 1686, only twenty-five per cent of the Dedham men could meet the requirement, but in practice, only half the male population could not vote at town elections.[92] This law of 1658 must be seen as a turning point since the condition for freemanship was no longer only metaphysical (religious in this case) but also economic, and this definitive inclusion of economic considerations in the qualification for citizenship can be legitimately seen as prefiguring the end of the Puritan period and of the greater Anglicization of New England starting in the last decades of the seventeenth century. Democracy would therefore have to wait.

8. The Body Of Laws - 1648

The Body of Laws that was published the following year - 1648 - has been seen as indirectly owed to the remonstrants.[93] The deputies were not entirely satisfied with the 1641 Body of Liberties, which did not go far enough for them: a new one was needed that would cover broader fields, such as the economy, education or road-mending, would contain all the laws passed and applicable, and would no longer be fundamental.[94] Making it subject to alteration was a wise middle way between a fixed rigid code which would have left no room for discretion, and total discretion.

Whereas the introductory "epistle" to the Body of Liberties is almost secular in tone, and reads like the preamble to a bill of rights,[95] that of the Body of Laws reads rather like a sermon on the Epistle to the Romans, a text from which the Puritans drew their conception of divine government. In that particular introduction, there is one very interesting passage which can be taken as an address to potential political opponents or followers of Child or of his tracks, and deserves to be quoted in its entirety:

You have called us from amongst the rest of our Brethren and given us power to make these laws: we must now call upon you to see them executed ... If one sort of you, viz: non-Freemen should object that you had no hand in calling us to this worke, and therefore think yourselvs not bound to obedience &c. Wee answer that a subsequent, or implicit consent is of like force in this case, as an expresse precedent power: for in putting your persons and estates into the protection and way of subsistence held forth and exercised within this Jurisdiction, you doe tacitly submit to this government and to all the wholesome laws thereof.

This was a jewel of politics, such a convenient way to outlaw any attempt of opposition. It was the mere fact of immigrating and choosing to reside within the colony that bound the new settlers to her laws and government. Obedience would in no way be a reward on the part of the people for being let a voice in framing the laws and the system above them. There was an implicit covenant in the very act of immigrating. That way, the non-freemen would not be kindled by Child's spark and would continue to obey quietly and either accept their lot or try to apply for freemanship, or leave to "more democratic Connecticut"[96] or Rhode Island. They had been granted power locally, in exchange of what they could be held in control at the level of the colony. Even though the effects of the above-mentioned passage are difficult to assess, there was no other attempt on the part of non-freemen to alter the constitution, and neither were there on the part of the freemen for more than one decade.

9. The Halfway Covenant and the End of the Religious Restriction - 1662-1664

Indeed, the next change in the nature of church membership came only in 1662 in the form of the Halfway Covenant, whereas the next change in the requirement for citizenship occurred in 1664. The Halfway Covenant is a very controversial and complex document. Its direct causes are still debated. The figures tend to prove that admissions to church membership declined steadily throughout the mid-seventeenth century. In the town of Dedham, there were only eight admissions between 1653 and 1657, and, strikingly enough, none between that year and 1662. In that year, fifty percent of the men were not members of the church and the number of baptized children had fallen from eighty percent to barely forty.[97] Even more worrying, it came to be realized in the 1650s that soon the majority of the population would not be baptized, a bad sign of failure for a commonwealth founded on religious belonging. And a failure it was for the whole experience, since the rulers of the first generation had established the restriction of freemanship to church members in the hope that the requirement would attract only visible saints and that these future settlers would all pass the test, or at least a good proportion.[98] But it was not the case; church membership - and with it citizenship - decreased. Actually John Winthrop and his colleagues would have loved the whole adult male population to be given the vote if they were all regenerate, for it would have been a great sign of purity for the colony. They wanted the ultimate power to be restricted to a few pairs of hands for efficiency's sake - hence their opposition to have deputies play a part in the General Court. Unfortunately for them, the second generation, namely the children born in New England, had not experienced the same traumatizing experiences as their parents - persecution, crossing the ocean to build their lives anew in the wilderness - which would have helped to bring about the emotional conversion required to be admitted into the membership of the church.

To summarize, the Halfway Covenant enabled the grandchildren of full members to be baptized, even if their parents had not become full members themselves. However these children were not considered as full members but as halfway members, and thus did not qualify for the franchise.[99]

It was only two years after that an seemingly ground-breaking law was passed that apparently opened the suffrage and office-holding to the whole of the free male population over twenty-one years of age, without any religious requirement any longer.[100] Of course the oath of fidelity was still to be taken, but manhood suffrage had been introduced and a certainly more considerable amount of democracy had just made its way into Massachusetts. If such were the situation, there was still the veto, but the fact that the assistants who could use that veto were elected by the people made it less contradictory with democracy. However, only a system in which the negative voice of the smaller body can be overruled (like in Great Britain) and thus be no more than a formal expression of dissatisfaction and a call for a revision of the bill, is truly democratic. Therefore, if perhaps not a true democracy yet, Massachusetts had never been closer. Nevertheless, we must mention two disturbing facts. In 1665, non church members, and thereby non freemen who under the provisions of the law of 1664 as presented by Morgan and Morison could now easily become freemen, signed petitions in support of the "Godly, righteous and peaceable" system of Massachusetts. Even though they had been excluded from it at colony-level, they still thought that the idea of a pure state through a pure church was the right one.[101] Moreover, Lockridge has been the only author of a monograph to allude to a requirement that would have permitted only "a few very wealthy non saints to the colony suffrage".[102] Has this clause been voluntarily omitted by other historians, especially those writing during the Cold War, the consensus historians, whose aim was to present America as a democracy from the very beginning?

Fortunately, more light was shed on that law in B. Katherine Brown's article on the controversy over the franchise in Massachusetts, as well as in the answers to that article.[103] What can be read in it is quite different from what Morison and Morgan mentioned. The Law of 1631 was repealed in 1664 "at the insistence of the English government"[104] and was replaced by a law that opened the franchise to some non-members, but upon conditions that have been hotly debated in terms of implications. All the historians concerned agreed that church members continued to be enfranchised and vote as they had been used to do, regardless of property.[105] Non-members had to be "sanctioned by their minister as 'orthodox in religion'", they had to be at least twenty-four years old, "settled inhabitants, householders and certified freeholders."[106] The controversial change was in the inclusion of a property condition and what it really amounted to. To qualify, a man needed ten shillings of "ratable estates", which, without entering into complicated and tedious fiscal details, was deemed as a quite low and universal financial requirement by Brown, and on the contrary as high and restrictive by Stephen Foster and Richard Simmons.[107] Simmons has claimed that there were very "few admissions of non-church members to freemanship between 1664 and 1684"[108] therefore contending that the provision of the law of 1664 was quite drastic since few men qualified. Such an argument is in keeping with Kenneth Lockridge's allusion to a restriction of the franchise to the wealthiest men in the Colony and is at odds with the claims that since the suffrage was open - however narrowly - to non-church members at provincial level, the religious requirement had been dropped and democracy had emerged all of a sudden. After 1664, the franchise was thus no longer limited to Saints only, but to the Saints and the more affluent sinners, if we take the Congregationalist reasoning to its logical conclusion. Therefore, in 1664, the religious requirement established in 1631 was still partially valid and democracy was still a long way ahead. On top of a metaphysical limitation of the electorate was now added an economic condition. This intrusion of material considerations can be held to mark concretely the end of the Puritan era of Colonial New England, as we have mentioned above.

10. The Neighboring Colonies

It might be interesting to compare the political systems in the neighboring colonies of Connecticut, New Haven (united to Connecticut by the 1662 Royal Charter), Plymouth and Rhode Island. These colonies had all been founded by men who had previously lived in Massachusetts, apart from Plymouth of course, but evidence shows that this small colony underwent continuous political and economic pressure from bigger and comparatively wealthier Massachusetts, and often had to comply or conform to the will of its rulers.[109] Connecticut was founded in 1636 by Thomas Hooker, a friend and colleague of John Cotton's, and Roger Ludlow, who had been an assistant in Massachusetts for several years. They had left Massachusetts because they found it too theocratic and harsh. New Haven was founded in 1639 by John Davenport, another leading Puritan minister who found Massachusetts too lenient and not pure enough, and Theophilius Eaton, one of the original stockholders of the Massachusetts Bay Colony. And Rhode Island was founded by Roger Williams after he was banished from Massachusetts for "sinning repeatedly against his conscience."[110] We might deduce therefrom that at least the constitutional organizations of these colonies was either a reaction against, or inspired by, that of Massachusetts, which by its size and influence, must be seen as the political and influential center of New England. We shall not discuss the situation of New Hampshire and Maine first because large parts of them were annexed by Massachusetts and therefore fell under its rule respectively in 1643 and 1651,[111] and also because they were much less populated and politically significant.

Let us first examine citizenship and the powers attached to it in the oldest of these colony, Plymouth. The feature that must be immediately recalled is that the first waves of migrants, in the early 1620s, where all stockholders of the Plymouth Company. So the start was comparable to that of Massachusetts, the major difference being that it was more than a handful of men who had political powers, it was the entirety of the free adult males. Then, after the Company was finally dissolved in 1627 and hundreds of immigrants arrived from England during the Great Migration, another solution had to be found. There was no religious requirement for becoming a freeman, and if there had been, it seems that church membership, also reserved to the regenerate, was more easily accessible in Plymouth than in Massachusetts.[112] One first had to be admitted by the freemen of one's town, who then submitted the name to the General Court - the assembly of the freemen and the assistants, themselves elected by the freemen of the colony at large. A one-year delay was introduced between these two phases in 1658. That year, another restriction barred "manifest opposers of the true worship of God" from freemanship, which could refer to notorious sinners as well as to religious dissenters since that period saw a very reactionary backlash against toleration, again partly under the pressure of Massachusetts. As far as religious dissenters were concerned, the arrival of the first Quakers in the mid-1650s was answered by their being denied citizenship, but the measures went much further. Indeed, freemen who became Quakers would lose their freemanship, quite a harsh measure since even excommunication in Massachusetts did not have that effect. Similarly, a freeman who would only help or shelter a Quaker would lose his political rights. It seems that the reasons why some men were refused freemanship are unknown.[113]

The Constitution of 1636, drafted by a committee in which the freemen and the magistrates were equally represented, granted these freemen certain rights, and to that extent resembled a bill of rights. They were guaranteed due process and yearly elections, thus making their assembly a safer body than the English Parliament, which at the time had been dismissed by the King seven years before. They were also granted trial by jury, testimony under oath, and their consent was required to pass any law. However, these rights were accompanied by duties: not voting was liable to a three-shilling fine, and the freemen elected were compelled to hold office (they did not run for office like today, but were chosen by their fellows) which proves that, just like in Massachusetts, the freemen were not desperately keen on exerting their rights. As we have seen, a remedy was found in the form of the vote by proxy in 1652.

Plymouth also had a representative system since deputies were allowed to attend the General Court from 1638. If that office was restricted to freemen, all taxpayers who had sworn fidelity to the Colony could take part in the election and therefore be represented, which was quite fair since the General Court was the taxing body. Thus simple taxpayers but non-freemen could be represented at the "sole governing authority of the colony", which gathered judicial, legislative, executive and fiscal powers.[114] This very important feature of the constitutional organization of Plymouth made it much more democratic in outlook than Massachusetts at the same time, where the first bill of rights would appear only in 1641, manhood suffrage locally in 1647. If it appears that on the whole freemen had more privileges than non-freemen, they had to swear an oath of loyalty not only to the Colony, but also to England[115], which some refused to do. It is reported that in 1659, twelve freemen were convicted for refusing to take the oath, and were fined five pounds each.[116] However, the trend was not toward a more and more inclusive democracy since in 1656 the town of Plymouth deprived one third of the freemen of their rights - especially those arrived after 1640. Moreover, a property-based requirement was introduced in 1668: a man had to own twenty-pounds of taxable estate to qualify as a freeman.[117]

The 1639 Fundamental Orders of Connecticut provided for similar arrangements. Freemen did not have to be church members[118], but had to take the oath of fidelity, and had to inhabit within the jurisdiction. There were numerous provisions guaranteeing the civil rights of the freemen, which reflects how traumatic an effect Charles I's Personal Rule had had on the politically-minded population. For instance, the fear of tyranny called for two guaranteed yearly courts. There would be a governor and six assistants elected by the freemen, and four deputies by town, therefore twelve deputies since there were three towns (Wethersfield, Windsor and Hartford). The deputies were elected at town level, they had to be freemen, but could be elected by any inhabitant who had taken the oath of fidelity, which was more democratic a practice than that of Massachusetts. In a sermon in 1638, Thomas Hooker declared that political authority must stem "from the people."[119] Whoever he might have referred to (the Godly or the inhabitants) he meant from the bottom up and no longer from the top down, as in a theocracy (from God) or in a monarchy, in which system authority came from the king, who himself supposedly derived his authority from God.

The 1639 Fundamental Agreement of New Haven, on the opposite, demanded that "free burgesses", the local equivalent of the otherwise generally accepted term of freemen, had to be chosen among church members, and they had power to choose the magistrates and other officers, as well as to make laws "according to the Word", one of the many theocratic features of this text. However this restricting clause was the only one not to be adopted unanimously, one man disagreeing upon the idea that the "free planters" but non members should be deprived of political rights - an argument prefiguring Child's. The Agreement contains the record of his being converted by his neighbors to accept the clause. The conditions of admission and prerogatives of the free burgesses were further confirmed in the 1643 Government of New Haven Colony, which provided for the vote by proxy, two yearly General Courts, the yearly election of the governor, deputy governor and magistrates, and two deputies by town. An interesting clause stipulated that "nothing shall pass an act of the General Court but by the consent of the major part of the magistrates and[120] the greater part of the Deputyes." Technically, this article is fairly close to the law establishing the negative voice in Massachusetts. However it was nowhere indicated that a formal bicameral system had been set up, to which such a clause amounted. Regardless of the content of the laws therefore, the constitutional frame established in New Haven was strikingly close to that of Massachusetts, whose model they only wanted to improve in a more theocratic way. Given the resemblance between the two systems, aristocracy and democracy were similarly represented in New Haven and Massachusetts.

The difference with Rhode Island might then seem blatant, since the Government of Rhode Island of March 1641 explicitly declared that it was a "DEMOCRACIE[121], or Popular Government" (article 3), explaining that "it is in the Powre of the Body of Freemen orderly assembled, or the major part of them, to make or constitute just Lawes, by which they will be regulated, and to depute from among themselves such Ministers as shall see them faithfully executed between man and man." However, this description is not thoroughly distant from that of the neighboring systems. The main differences were that there seems to have been no oath, no veto, no religious restriction, the latter due to toleration, or freedom of conscience, which came to be the distinctive feature of Rhode Island, as confirmed in the Royal Charter of 1663.

11. A Dictatorship of the Regenerate?

All these developments help confirm that Perry Miller's claim that Massachusetts as well as Connecticut were dictatorships "and never pretended to be anything else"[122] is fallacious. Indeed, a dictatorship is originally the absolute rule of one individual, through coercion, and without any care whatsoever for the interest of the people, whoever this term might refer to. Miller has himself agreed that this so-called dictatorship was limited - he quoted John Cotton on the subject[123] - by term limits for example, which is thoroughly antithetical with a dictatorial regime. If we concede that he might have used the term "dictatorship" to refer to a group in power, and not only to one individual, it remains that the notion of coercion was contrary to the Puritan philosophy, as he has explained in his chapter on the covenants[124], the basis of which was free consent, to be a member of the church as well as a freeman. This was made blatant in the sheer fact that church members refused to take the oath of 1631. Moreover, the principle of representation and the slow process of partial democratization of the Colony proved that it was not even a "dictatorship of the regenerate", since non-freemen gained power little by little. However, it could be conceded that Massachusetts showed strong displays of authoritarianism, simply in making church non-attendance liable to fines - even though it had also been the case in England since Elizabeth's reign - and in repressing systematically religious and political opposition, as epitomized by Roger Williams, Anne Hutchinson, and Robert Child.

[To Chapter IV]
[To Table of Contents]