not being forfeited for felony or treason; and the convict might therefore, even after sentence, dispose of it by will.' Estates tail were recognised, and in such cases the heir took per formam doni, according to the common law, and not all the children as one heir.2

§ 74. In respect to ecclesiastical concerns they made ample provision for their own church, (meaning the Congregational Church,) exclusive of all others. In their parallel in 1646, they quote the provision of Magna Charta, that "the church shall enjoy all her lib"erties," and dropping all suggestion of the real differences of their own church establishment from that of England, they quote their own provision, that "all persons orthodox in judgment, and not scandalous in life, may gather into a church state according to the rules of the gospel," as of similar import. They gave to their own churches, when organized, full power and authority to inflict ecclesiastical censures, and even to expel members. But they reserved to the civil authority the further power to punish offences, and "the liberty to see the peace, ordinances, and rules of Christ observed."4 Every church had liberty to elect its own officers, and "no injunction was to be put upon any church, church officer, or member in point of doctrine, worship, or discipline, whether for substance or circumstance, besides the institution of the Lord." But the general court, with the assistance of the clergy, were in the habit of judging of all such matters with supreme authority, and of con

1 1 Hutch. Hist. 447.

2 1 Hutch. Hist. 447.

3 3 Hutch. Collect. 201; Ant. Colon. and Prov. Laws, ch. 39, p. 100; 1 Haz. Coll. 488.

4 Ant. Col. and Prov. Laws, ch. 39, p. 100, 101.

5 1 Hutch. Hist. 420, 421, 422, 423, 424, 434; 1 Belk. New-Hamp. ch. 4, p. 70, 71.

demning errors with no sparing hand. They had not the slightest scruple of punishing heresies with fines and banishment, and even, in obstinate cases, with death. Ministers were maintained, and public worship provided for by taxes assessed upon the inhabitants of each parochial district; and an attendance upon public worship was required of all persons under penalties, as a solemn duty. So effectual were the colonial laws. in respect to conformity, and so powerful the influence of the magistrates and the clergy, that Hutchinson informs us, that there was not "any Episcopal church in any part of the colony until the charter was vacated."3

§ 75. But the most striking as well as the most important part of their legislation is in respect to education. As early as 1647, the General Court, " to the end," as the preamble of the act declares," that learning may not be buried in the graves of our forefathers in church and commonwealth," provided, under a penalty, that every township of fifty householders "shall appoint a public school for the instruction of children in writing and reading, and that every town of one hundred householders" shall set up a grammar school, the master thereof being able to instruct youth so far as may be fitted for the university." This law has, in substance, continued down to the present times; and it has contributed more than any other circumstance to give that peculiar character to the inhabitants and institutions of Massachusetts, for which she, in common with the

1

1 Robertson's America, B. 10; 1 Belk. New-Hamp. ch. 4, p. 70 to 77; Ant. Col. and Prov. Laws, ch. 57, p. 120, &c. ; 3 Hutch. Coll. 215, 216; 1 Hutch. Hist. 431; 3 Hutch. Hist. 42; 1 Haz. Coll. 538; 1 Chalmers's Annals, 163, 164, 165, 167, 169, 189, 190, 191, 194.

2 1 Hutch. Hist. 427; Ant. Col. and Prov. Laws, ch. 39, p. 103, 104. 31 Hutch. Hist. 431.

4 Ant. Col. and Prov. Laws, ch. 88, p. 186.

other New-England states, indulges an honest, and not unreasonable pride.

§ 76. After the grant of the provincial charter, in 1691, the legislation of the colony took a wider scope, and became more liberal, as well as more exact. At the very first session an act passed, declaring the general rights and liberties of the people, and embracing the principal provisions of Magna Charta on this subject. Among other things, it was declared, that no tax could be levied but by the General Court; that the trial by jury should be secured to all the inhabitants; and that all lands shall be free from escheats and forfeitures, except in cases of high treason.1 A habeas corpus act was also passed at the same session; but it seems to have been disallowed by the crown.2 Chalmers asserts, that there is no circumstance in the history of colonial jurisprudence better established than the fact, that the habeas corpus act was not extended to the plantations until the reign of Queen Anne.3

§ 77. It does not seem necessary to go into any minute examination of the subsequent provincial legislation. In its general character it did not materially vary from that antecedently adopted, except so far as the charter required, or a progressive spirit of improvement invited a change. Lands were made liable to the payment of debts; the right of choosing their ministers was, after some struggles, secured in effect to the concurrent vote of the church and congregation in each parish; and the spirit of religious intolerance was in some measure checked, if not entirely subdued. Among the earliest acts of

1 2 Hutch. Hist. 64; Ant. Col. and Prov. Laws, ch. 2, p. 214. 2 2 Hutch. Hist. 64.

3 1 Chalm. Annals, 56, 74.

the provincial legislature, which were approved, were an act for the prevention of frauds and perjuries, conformable to that of Charles the Second; an act for the observance of the Lord's day; an act for solemnizing marriages by a minister or a justice of the peace; an act for the support of ministers and schoolmasters; an act for regulating towns and counties; and an act for the settlement and distribution of the estates of persons dying intestate. These and many other acts of general utility have continued substantially in force down to our day. Under the act for the distribution of estates the halfblood were permitted to inherit equally with the whole blood. Entails were preserved and passed according to the course of descents of the common law; but the general policy of the state silently reduced the actual creation of such estates to comparatively narrow limits.

1 2 Hutch. Hist. 65, 66.

2 2 Hutch. Hist. 66.

CHAPTER V.

NEW-HAMPSHIRE.

§ 78. HAVING gone into a full consideration of the origin and political organization of the primitive colonies in the South and North, it remains only to take a rapid view of those, which were subsequently established in both regions. An historical order will probably be found as convenient for this purpose, as any, which could be devised.

§ 79. In November, 1629, Capt. John Mason obtained a grant from the council of Plymouth of all that part of the main land in New-England "lying upon the seacoast, beginning from the middle part of Merrimack river, and from thence to proceed northwards along the sea-coast to Piscataqua river, and so forwards up within the said river and to the furthest head thereof; and from thence northwestwards until three score miles be finished from the first entrance of Piscataqua river; and also from Merrimack through the said river and to the furthest head thereof, and so forwards up into the lands westwards, until three score miles be finished; and from thence to cross over land to the three score miles and accounted from Piscataqua river, together with all islands and islets within five leagues distance of the premises." 1 This territory was afterwards called NewHampshire. The land so granted was expressly subjected to the conditions and limitations in the original

1 1 Haz. Coll. 289; 1 Holmes's Annals 199; 1 Belk. N. Hamp. ch. 1,