Bodies of Liberty: The Making of Legal Institutions in Colonial New England

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1 Bodies of Liberty: The Making of Legal Institutions in Colonial New England Katherine A Hermes* Throughout modem history, legal institutions have been the provinces of lawyers, judges, rulers, and politicians. Yet without the ordinary citizen to utilise these institutions, they would be nothing. Even in the most coercive regimes, the people must agree to accept the settlement of disputes or the punishment of transgressors by the law. In seventeenth-century New England, the reform ideas of religious dissenters influenced the nature of legal institutions. Ironically, the institutional underpinnings of New England were less the product of jurisprudence than of juris-practice; less the product of religion than of criminal forms of dissent. Mutiny, sedition, and contempt for authority created New England s legal institutions. They were defined and formed as much by the governed as the governors. This paper will focus on one event, the signing of the Mayflower Compact in November 1620, and its immediate consequences for the development of New England s legal institutions. The signing of the Compact was once thought to be of major importance as a prototype for American democracy and constitutionalism. That notion has been debunked, so that now most historians see the event as a minor episode in which pious Pilgrims managed Acknowledgments: I am grateful to Jon Butler, Thomas P. Davis, Mark Francis, Paul Hagan, Christine Heyrman, Edmund S. Morgan, Marie Morgan, and Liam O Mellin for their advice and comments on earlier drafts of this paper. I would also like to thank the participants of the Law in History Conference, April 16-18, 1993, at Macquarie University School of Law for their critical responses to the portion of this paper delivered there. 91

2 AUSTRALIAN JOURNAL OF LAW AND SOCIETY (1995) 11 to avoid a conflict with uncouth adventurers by drawing up a civil covenant. The circumstances that led to the Compact are not as atypical or insignificant as historians have made them out to be. The same type of circumstances; challenges to authority and demands by ordinary people for their greater inclusion in public affairs, preceded the formation of every major legal institution from the creation of a lower house, the House of Deputies, in the Massachusetts General Court to the codification of Massachusetts laws in The Compact was the first among many attempts by regular folk to take advantage of the liberty offered by the colonisation experience, and even to turn that liberty into a tradition. It is a popular misconception that the immigrants to New England were all some variety of religious zealots who called themselves Puritans. In fact, the Puritan migration, though more organised, was not more substantial than the migration of other English persons. As two recent studies have shown, the emigrants to New England represented the population of England to a remarkable degree.1 Those who were not Puritan were not necessarily anti Puritan, but the presence of "strangers", as they were known, meant that the settlement intended as a "Citty upon a Hill"2 was indeed a novel, often violent experiment. That experiment began on the first ship which brought colonists, as opposed to adventurers and traders, to the coast of what is now Cape Cod, Massachusetts. The first to arrive were the members of an ultra-puritan sect (Brownists or Separatists). They had renounced the Church of England, unlike more mainstream Puritan groups. In 1620 they did manage to procure a land patent from the King to settle in Virginia with the understanding that theirs would be an economic enterprise. They engaged a ship, the Mayflower, to take them on the voyage. "The Pilgrims," as the Mayflower's voyagers have become known, were a diverse group of settlers. The bare majority were Separatists who had emigrated to Leiden, Holland, and their relatives who had remained in England. They gathered in Southampton, along with others not of their religious beliefs, to sail for Virginia. The Mayflower was blown off course, 1 David Cressy, Coming Over: Migration and Communication between England and New England in the Seventeenth Century, Cambridge University Press, Cambridge, 1987, pp ; Virginia DeJohn Anderson, New England s Generation, Cambridge University Press, Cambridge, 1991, pp John Winthrop, "A Modell of Christian Charity," Winthrop Papers, Number 2, Boston, Massachusetts Historical Society, 1931, pp

3 BODIES OF LIBERTY: and it arrived in what is now New England in November 1620, with 102 passengers.3 Plymouth Colony, founded in 1620 by the Pilgrims, was significant, according to historian Samuel Eliot Morison, because of "the influence of their story on American folklore and tradition. And the key to that story...is the faith in God that exalted them and their small enterprise to something of lasting value and enduring interest." Morison pointed out a paradox, though: while significant in our time, the Pilgrims were of little significance in their own.4 The Mayflower Compact, perhaps the most famous document of American history before the Declaration of Independence, was not "the First American Constitution, a Charter of Democracy," or a social contract a la Rousseau. "The Compact was simply an agreement made by Englishmen who, finding themselves on English soil without any specified powers of government, agreed to govern themselves until the king s pleasure should be signified."5 Morison successfully cleared up the myth of the Compact as the foundation of democracy in America, but he added some problems as well. Historians now frequently associate the Compact with the Plymouth church covenant, believing that the Pilgrims would naturally have turned to the model they knew best when writing the agreement.6 The Pilgrims were probably Samuel Eliot Morison, "The Pilgrim Fathers: Their Significance in History", Plymouth Plantation, Inc., Plymouth, 1951, p 13, says 37 were from Leiden; 65 were not. (Eugene Stratton, Plymouth Colony: Its History and Its People, Ancestry Publishing, Salt Lake City, 1986, pp 262, 294, identifies two persons previously listed as non-leiden as members of the Leiden group.) Morison found 26 heads of households, 13 of whom were Separatists. Of the non-leiden passengers, he names Hopkins, Standish, and Warren as future "pillars of the Pilgrim state," and concludes that there is "not a very substantial basis" for seeing the majority of settlers as hostile to the Leiden group. Labelling the settlers is difficult: The most important distinction was between Separatist and non-separatist. But only males could exercise political power. Of the forty-one names that Nathaniel Morton provided as signers of the Mayflower Compact, 21 can be positively identified as Separatists, 12 as non-separatists, and eight uncertain (by my figures) at the time of the signing. Nathaniel Morton, New England s Memoriall, 1669, pp Using the signers makes the Separatists seem dominant numerically, because it does not include women, children, or male servants. It is not certain that these were the actual signers, because there is no extant copy of the Compact. Bradford did not list the signers; only the passengers. It is even doubtful that only free adult males signed, since two of the names on Morton s list are known to have been servants. Morison s comment about Hopkins and Warren as "pillars" is also misleading. Morison, above, n 4, p 7. Morison, above, n 3, p 11. See, e.g., Crispin Gill, Mayflower Remembered: A History of the Plymouth Pilgrims, David and Charles, England, Newton Abbott, 1970, pp 70-73, who wrote, "[The Compact was] based on the form used by the Separatists to bond themselves together in a church, adapted now for political 93

4 AUSTRALIAN JOURNAL OF LAW AND SOCIETY (1995) 11 coerced into joining the Compact by a group of mutineers who insisted that they would not be governed without a patent. The Compact was then drawn up to resemble, as much as was legally possible, a land patent. That event foreshadowed future battles for political power. It is also evidence of the attachment of lay Englishmen to what they understood as proper legal authority. Many of the internal problems faced by New England were due to competing ideas about the legitimate sources of law. George Langdon, author of the most recent general history of Plymouth, recounted the story of the Compact as follows: During those grim winter months a few men tried to oppose the elected civil government. Because the patent obtained from the Virginia Company was useless and because some men had threatened disobedience while the Mayflower was still at sea, the Pilgrims on November 11 had drawn up and signed the Mayflower Compact at Provincetown. Forty-one men, including all the free adult males who were passengers, promised to "covenant and combine ourselves togeather in to a civill body politick."* 7 This is the typical story, but it fails to convey either the seriousness of the "disobedience" or the true nature of the claims that the rebellious men made. Understanding the Compact as part of a series of struggles over authority, liberties, and most of all reform, provides a new picture of colonial society. Because the Mayflower landed at Cape Cod and not in Virginia, the patent was invalidated, but hardly "useless". A new patent would have to be applied for, but it would have been reasonable to operate under the old until another was obtained. William Bradford told a more dramatic story. While still aboard ship (but probably while docked) "some of the strangers amongst them [made] discontented and mutinous speeches...that when they came ashore they would use their own libertie; for none had the power to command them, the patent they had being for Virginia." So at least one of the mutinous passengers was astute enough to realise that the destination had to be correctly specified by the Virginia Company in the patent. "And partly purposes." See also Morison s note in his edition of William Bradford, Of Plymouth Plantation, , n. 1, Alfred Knopf, New York, 1952, p 75: "[T]he church covenants, or compacts, with which all Puritans were familiar, suggested this Compact." I have printed the texts of the Mayflower Compact and the Plymouth Church Covenant in Appendix A. 7 George Langdon, Pilgrim Colony: A History of New Plymouth, , Yale University Press, New Haven, 1966, pp

5 BODIES OF LIBERTY: that shuch an acte by them done (this their condition considered) might be as firme as any patent, and in some respects more sure," they entered into a "combination".8 By arguing that the patent was useless, the strangers created the need for the Compact. The phrase "use their owne libertie" indicates that the idea of a compact may have originated with the strangers, i.e. non-separatists, as well. They believed that "an acte by them done" had the force of law, suggesting that some among them may have understood the natural law principle that people may combine to form a government.9 It is a distinct possibility that the Separatists may have had a figurative gun to their heads when they signed the Compact. The Compact was certainly not directly modelled from a church covenant. The preamble, in which the signatories declared themselves "loyall subjects of our dread soveraigne Lord, King James", was a standard opening for charters and letters patent. The Compact bears the imprint of a patent, even though in length and specificity it falls short, no doubt because the settlers realised they could not grant themselves the land but only form a government. No copy of the original patent of the Mayflower group is extant, but patents were generally drawn up in a standard form, with the only differences being in the particular details of time and place. The letters patent issued to Sir Humphrey Gilbert stated that "it shall be necessary for the safety of all men... to determine to live together in Christian peace and civil quietness with one another."10 The Compact likewise expressed its purpose to "covenant and combine ourselves together into a civil body politick, for our better ordering and preservation."11 The East India Company Charter allowed the company "to make, ordain, and constitute such and so many reasonable laws...as to them...shall seem necessary and x William Bradford, in History of Plymouth Plantation, , Worthington C Ford, et al (eds) Massachusetts Historical Society, Boston, 1912, pp All quotations are taken from this edition, which keeps Bradford s spelling. Morison s edition has been used only for his commentary in the notes and will be designated as such. 9 The idea that the Compact invoked natural law principles is one that Morison rejects. It was accepted by nineteenth-century historians. See, e.g., Francis Baylies, in An Historical Memoir of New Plymouth, Samuel Drake (ed) vol 1, Wiggin and Lunt, Boston, 1866, p 27; Cotton Mather, Magnalia Christi Americana, in Thomas Robbins (ed) n 1, Silus Andrus and Son, Hartford, 1855, p 52, said that "the light of nature itself directed them" to draw up the Compact. 10 Letters Patent to Sir Humphrey Gilbert (1578), in Sources of English Constitutional History: A Selection of Documents from A.D. 600 to the Interregnum, Carl Stephenson and George Marcham, n 1, Harper & Row, rev. ed. New York, 1972, pp See Appendix A for the full text of the Compact. 95

6 AUSTRALIAN JOURNAL OF LAW AND SOCIETY (1995) 11 convenient for the good government of the same company."12 In the Compact it was agreed "to enact, constitute, and frame such just and equall laws, ordinances, [and] acts...as shall be thought most meet and convenient for the generall good of the Colonie". The form of the Compact had its origins in contemporary legal documents, but it did not lack characteristics of its particular time and place. The actual authorship would appear to belong to Mr. William Brewster, the elder of the Leiden church who served as the chief spiritual leader of the colonists. On December 15, 1617, John Robinson, the pastor of the Leiden church and Brewster composed a letter to Sir Edwin Sandys of the Virginia Company. Describing the sort of people they were and their reasons for wanting to colonise, Robinson and Brewster wrote: We are knite togeather as a body in a most stricte and sacred bond and covenant the Lord, of the violation wherof we make great conscience, and by virtue whereof we doe hould our selves straitly tied to all care of each others good, and of the whole by every one and so mutually.13 It is the style, not the substance, of the letter which is similar to that of the Compact. The references in the Compact to forming a "covenant" and undertaking "the advancemente of the Christian faith" were not necessarily Separatist ideas, though they may have imbued the phrases with special meaning. The use of the word "covenant" was so common in the seventeenth century that a non Puritan could easily have employed the term in its legal sense. The idea of propagating the gospel, which Bradford named among his reasons for removing to Virginia,14 and which the Compact mentions, was also commonly included in any instructions for colonisation. King James I told the government in Virginia that one of its duties was to convert the Native Americans "to the true knowledge of God".15 References to the Christian faith in the Compact were quite general; King James was addressed by his 12 Charter to the East India Company (1601), Stephenson and Marcham, eds., English Constitutional History, 1: Bradford, above, n 8, p Bradford, above, n 8, p King James, quoted in Edmund S Morgan, American Slavery, American Freedom: The Ordeal of Colonial Virginia, W W Norton, Inc., New York, 1975, p

7 BODIES OF LIBERTY: title "defender of the faith," an appellation that must have caused the Separatists to wince. If the Compact was initiated by a group of discontented colonists, one might wonder what they had to gain by it. It is possible to identify, tentatively, the mutinous strangers. Stephen Hopkins was not of the Leiden group. He brought with him two "servants",16 his wife, and four children. Hopkins had previously been to the New World. In 1609 he was a passenger on a ship that wrecked in Bermuda, and he was almost hanged for mutiny. He managed to get to Jamestown, where he lived for two years. When he decided to join the 1620 venture, he was living in London. His knowledge of Virginia would have made him valuable, and not nearly as costly as Captain John Smith, the self-proclaimed saviour of Virginia during its starving time.17 Presumably, he also had a knowledge of patents. Hopkins may have decided to play his hand when the Mayflower landed at Provincetown instead of Jamestown. The hired men who accompanied him probably assisted him. Richard Warren was an affluent man from London, who, like Hopkins, was later to become prominent in the Colony.18 John Billington seems also to have had a mutinous and even violent disposition.19 These were men whose relative status in the colony would depend on their own exertions. The Separatists were clearly in charge of the venture, and they planned to bring over more of their group. Men like Hopkins, Warren, and Billington, and especially the two servants, Doty and Lister, had much to gain and little to lose in pushing for their "libertie". The Compact assured them of a voice. Hence, a more plausible version of the story than the one usually told is as follows: Realising that the patent was no longer valid once they arrived in New England, Hopkins, who was familiar with the horrendous conditions of 16 Bradford, n 2, above, n 8, pp 400, 411. The servants were Edward Doty and Edward Lister. Bradford mentions above, n 8, p 7 that there were "untoward persons mixed amongst them from the first, which came out of England," and that some had moved to Virginia, which Lister did. These are the only two designated servants who appear on Morton s list as signers of the Compact. Morton, above, n 4, p Stratton, above, n 4, pp Stratton, above, n 3, pp See also Bradford, n. 2, above, n 8, p 7. Warren and Hopkins were both referred to as "Mr" by Bradford. 19 Stratton, above, n 4, p 245. Billington, Hopkins, and Warren all became Purchasers when 53 of the Plymouth settlers assumed the shares of the company in Billington was hanged for murder in Bradford, n. 2, above, n 8, pp

8 AUSTRALIAN JOURNAL OF LAW AND SOCIETY (1995) 11 Virginia in ,20 began to speak to others about his concerns. Perhaps he feared something like the Lowes Divine, Morall, and Martiall that had imposed a military-like discipline on colonists in Virginia.21 A man of means, but not a Separatist, Hopkins found comrades in men like Warren, also from London, and Billington. Hopkins hired men, Doty and Lister, had ambitions of their own. Perhaps, hearing of the tobacco boom, they had envisioned getting rich in Virginia after their terms of servitude were ended. Hopkins, who had once risked his neck in a mutiny, did not go so far this time. Instead, he chose to speak in terms that might appeal to the Separatists as well. He demanded a mutual agreement, that would assure its signers of an equal standing under the law. As a Londoner, Hopkins probably knew about the arguments over "ancient liberties" and the primitivist approach of reformers. He knew the Separatists would not, and could not, argue with principles that based the authority of government upon a compact or covenant or that reserved certain rights to the people. The Separatist leaders, while not pleased with the discontent, accepted the idea of a compact, as it coincided with their conception of government. They modelled the agreement after their patent, but simplified it since they possessed no power to grant themselves certain things, such as land. There was one peculiar omission in the Compact, given that the models for it were other letters patent. The prohibition that no laws be made "contrary to the laws and statutes of this our realm of England", was conspicuously absent. This phrase, or one similar, appeared in nearly every other charter or letters patent in which the power to govern was granted.22 The Virginia Company, after granting the first patent to the Pilgrims, voted that they could form a government "for the better ordering...of their servants and business, provided [the laws] be not repugnant to the Laws of England."23 It is unlikely that the exclusion of the phrase from the Compact was accidental. 20 Hopkins was in Virginia then. For a description of the conditions there, see, Morgan, above, n 15, pp Morgan, above, n 15, pp The Lawes were enacted in 1610 and were extremely severe. They prescribed death for sacrilege or derision of the Bible, among other crimes. 22 "The Great Patent of New England," (Nov. 3, 1620), in The Compact with the Charter and Laws of the Colony of New Plymouth, William Brigham (ed), Dutton and Wentworth, Boston, 1836, p 8, (hereinafter, New Plymouth Laws). Such a stipulation was included, for example, in the East India Company charter, the Massachusetts Bay charter, and the letters patent to Sir Humphrey Gilbert. The exception is the second Pierce patent granted to Plymouth in June 1621, which does not contain the phrase. I have offered an explanation for this infra. 23 Morison (ed) of Bradford, n. 1, above, n 8 and n 6, p

9 BODIES OF LIBERTY: The Separatists had the greatest reasons for omitting the words. They were, after all, proponents of religious and legal reform,24 and had broken from the Church of England, contrary to the laws of England. Moreover, there was another event in New England s founding decade that bears some resemblance to this one. In the latter case, the Puritans seem to have deliberately excluded the phrase from their document. In the winter of 1629, John Endicott, the newly arrived governor of Massachusetts Bay, convened an assembly of all the planters, both old and new, in the settlement of Salem. He presented them with a set of articles to be signed in an effort to provide law and order, especially regarding trade. The articles, according to the irascible, Puritan-hating Thomas Morton, sought to establish: "That in all causes as well Ecclesiastically, as Politicall, we should follow the rule of God s word." Morton refused to sign the articles. He informed Endicott the words "So as nothing be done contrary, or repugnant to the Lawes of the Kingdome of England" should have been included. As a lawyer trained at Clifford s Inn, Morton deemed the words necessary. "Without these same [articles] would proove a very mousetrapp to catch somebody by his owne consent, (which the rest nothing suspected), for the construction of the worde would be made by them of the Separation to serve their owne turns."25 How much the Separatists were involved intellectually with legal reform is debatable. Morison thought their only concern was religion. Plymouth had the first written law code of New England in 1636, but that proves nothing about their knowledge or ideas in One indication might be the Separatists decision in 1621 to make marriage a civil act rather than a religious one. Bradford mentions this was the law in Holland, and says it was "most consonante to the scriptures." In 1619 Robinson wrote a tract, "Just and Necessary Apology," in which he considered the proper authority of ministers and magistrates regarding marriage. His arguments were consistent with Puritan and legal reformers in England. Bradford, n.l above, n 8, p 218. Thomas Morton, "New English Canaan...containing an Abstract of New England composed in three bookes," in Tracts and Other Papers Relating...to the Origin, Settlement, and Progress of the Colonies in North American, n 2, Peter Force, Washington, 1838, p 106. Not enough is known about Endicott s articles to make the claim that the Compact was used as a precedent. Endicott was ordered by the Virginia Company to ensure that only "peaceable men" who "conform[ed] themselves to good order and government" were allowed to partake of "privileges and profits." The company was afraid of a "factious spirit" and tried to prevent mischief. The company s letter to Endicott is quoted in C F Adams, n 1, Three Episodes, p 226. Morton s reference to "Separatists" is probably directed at Endicott s Puritans, who were not actually separated. On the other hand, he might have been thinking of the "strangers" who signed the Compact without having those words inserted and who then found themselves under the Plymouth Separatists collective thumb. Donald F Connors, Thomas Morton, Twayne Publishing, New York, 1969, p 154, thinks Morton s actions were meant as a threat that he might seek remedy in an English court if his rights were infringed. 99

10 AUSTRALIAN JOURNAL OF LAW AND SOCIETY (1995) 11 The Mayflower passengers knew that they would have to apply for a new patent, and they did so in Whether the Separatists deliberately left out the words or, as one historian has suggested, the strangers "seemed to anticipate a perfect freedom from the restraints of law",26 a position that seems highly unlikely, all apparently agreed that the Compact was legally binding. The Separatists may have omitted the usual requirement that they make no laws contrary to those of England. They could argue the stipulation was understood, the Compact was temporary or the phrase seemed hazardous to them, perhaps limiting the measures they could take if there was an outright rebellion. No doubt, the non-separatists were willing to let the omission stand, if indeed they noticed it, as they wanted as few restraints as possible. The Compact was the first of many conflict resolutions that would be necessary in the founding decades of New England, and the first dilemma that the Puritans would face in which they had to measure their own desires for reform against the threat of rebellion. The Compact did not result in a revolution, but Bradford s words reveal the winds of change: "After this they chose, or rather confirmed, Mr. John Carver...their Governour for that year."27 The men made laws, civil and military, of which no copy exists. "[S]ome discontents and murmurings arise amongst some," Bradford wrote, "and some mutinous speeches and carriages in others, but they were soon quelled and overcome by the wisdome, patience, and just and equall carrage of things by the Gov[erno]r and the better part". Forty-four of the colonists died, almost immediately thereafter, (three more than had signed the Compact), and the grumblings then were not against the government.28 Of those who were left after the winter, the percentage of Separatists and non-separatists remained about the same as it had been.29 Bradford was chosen governor after Carver s death in the autumn of 1621, and an Assistant, Isaac Allerton, was chosen to help him.30 The question of who would govern was not resolved by the mere act of choosing a governor. 26 Baylies, n 10 above, p Bradford, n. 1, above n 8, p 192. Historians dispute the meaning of the inserted phrase "or confirmed," some seeing it as an inadvertence or as a qualification (that Carver was "governor" on the ship, The Speedwell), (n.l, p 192) I think it shows Bradford s ambivalence about the powers conferred on the people by the Compact. 28 Bradford, above, n 8, pp 1: Cotton Mather, above, n 9, p 54, said the colonists resolved "to be governed by rulers chosen from among themselves, who were to proceed according to the laws of England", but it is not clear where Mather gets his evidence. 29 Morison, above, n 3, p 13; Stratton, above, p Bradford, above, n 8, p

11 BODIES OF LIBERTY: Conflicts over freemanship were present in New England from the first. As new colonies formed in Massachusetts, Connecticut, and Rhode Island, membership to the body of freemen would be a recurring problem. The issue cut to the quick of the ties between church and state and the relationship between religion and law. Each battle over who was admitted and who was refused reflected the unique origins of each colony in New England as well as the reform beliefs of its population. The colonists at Plymouth were, for the next four decades, continually struggling to define their relationship to England, its laws, and institutions. Bradford s History is replete with references to dissension, discontent, and fear of rebellion. Nor was the problem simply domestic. Financial problems, disagreements with the London Adventurers who had sponsored their voyage (and who now seemed reluctant to send over any more from the Leiden group), and legal uncertainties all plagued the colony. Freemanship was pivotal. In 1621, the colonists applied for a new patent to give them rights over the territory they occupied. The first patent had been granted to John Pierce by the Virginia Company, the second was granted to Pierce by the Council of New England in June 1621, in the form of an indenture. King James granted a charter to the Council of New England in November, Their powers were to be specified in "several letters patent",31 of which the second Pierce patent became one. Pierce and his "Associates Undertakers and Planters" could "upon request unto the said President and Counsell... make orders Lawes Ordynaunces and Constitucons for the rule government ordering and dyrecting of all persons to be transported and settled."32 The patent required a "request" before laws could be made, thereby reserving the greater legal authority to the Council. Since the Council s charter specified that plantations could not make any laws contrary to the laws of England, it was not necessary to repeat that language in the second Pierce patent. The patent was good for seven years, and it stated that until a more permanent grant was made, the planters could elect officials to establish laws "Charter," above, n 22, p Bradford, n. 1, above, n 8, p Bradford, above, n 8, p 250. Historians view the wording of this patent as confirmation of the Compact, since the two are similarly worded. See Morison s edition of Bradford, above, n 6 and n 8, p 93, and Stratton, above, n 3, p 142. Consistent with what I have argued above, I think the second patent resembled the Compact, because the Compact resembled the first patent. 101

12 AUSTRALIAN JOURNAL OF LAW AND SOCIETY (1995) 11 Pierce did not deal squarely with the colonists. He attempted to use the patent as an instrument for his personal gain, making the Plymouth settlers his tenants. The Council was forced to purchase the patent from Pierce at a substantial loss in order to keep the enterprise on its original course.34 Disagreements between the colonists ranged from the amusing to serious, but in 1624 there occurred the colony s biggest crisis to date. What appeared on the surface as a religious squabble materialised as a political timebomb. On April , James Sherley, the treasurer of the Council, and some other members wrote to Bradford, Allerton, Winslow, and "the rest whom they think fit to acquaint therewith". Stating that their aim was the comfort and contentment of the planters, as well as the return on their investment, the Council was concerned: "[Ejither the country is not good where you are, for habitation; or else there is something amiss amongst you; and we much fear the willing are too weak and the strong too idle." The Council then enclosed several objections against the Plymouth colony leaders. They encouraged the leaders to make covenants with the "particulars", the non-separatists, and to consult with them whenever possible. They also warned about the dangers of the Separatists letting go of the government; stressing the need for diplomacy but not capitulation.35 Part of the Council again wrote to Bradford, Allerton, and Brewster, "and the rest of the general society of Plymouth" in December The Council acknowledged that it had been split by factions for two years. Some of the Council opposed the Separatists and charged that those in Plymouth were "contentious, cruel and hard hearted, among your neighbors and towards such as in all points both civil and religious, jump not with you".36 The friendlier segment of the Council repeated its earlier advice more specifically, telling the Separatists to guard against harshness so as not to alienate the particulars Stratton, above, n 3, p 141; Bradford, above, n 8, pp 1: Pierce never made the voyage to New England. After two attempts at crossing, "when he was half way over," an "extraime tempest" made him turn his ship back. The Council had to pay 500 pounds for the patent that had cost him fifty. See also, William Bradford, Letterbox Massachusetts Society of Mayflower Descendants, Boston, 1906, p 13. Pierce threatened to "make a parliamentary matter, about our grand patent," and Bradford suspected a conspiracy between Pierce and another Adventurer, Thomas Weston (letter from Bradford to Robert Cushman, June 9, 1625). 35 Bradford, above, n 34, pp Bradford, above, n 34, p Bradford, above, n 34, p

13 BODIES OF LIBERTY: The Separatists had been trying to get more of their group from Leiden to New England, but so far had not succeeded. Others did come, but the Separatists were matched or outnumbered by "strangers".38 In addition, there was no minister in the colony; the teaching elder, Brewster, could preach but not administer the sacraments. The Company took matters into its own hands and sent over the Reverend John Lyford in Bradford could scarcely conceal the venom in his pen as he wrote about Lyford years later: "When this man first came ashore, he saluted [the people] with that reverence and humilitie as is seldome to be seen... he so bowed and cringed... and would have kissed their hands if they would have suffered him."39 Lyford stirred things up in Plymouth, probably making the Mayflower mutiny seem a mere spat by comparison. Bradford, with hindsight, saw Lyford as a threat to the whole religious and political fabric of the colony. William Hubbard, an early settler and chronicler of the Bay, wrote a narrative in 1680 which favoured Lyford and depicted the dispute as primarily a religious one. The Separatists did not like Lyford, Hubbard asserted, since he adhered to the rites of the Church of England. Hubbard s informant on these matters was probably Roger Conant, who, with Lyford and another colonist named Oldham, began a fishing venture at Cape Ann in Like Bradford, Conant was both an eyewitness and a partisan.40 Lyford s main defender in print was none other than Thomas Morton, who also characterized the episode as a religious fight. According to Morton, Lyford refused to renounce his calling in the Church of England, maintaining that it was legal and that he had a right to execute his office.41 Upon his arrival, Lyford joined the Plymouth Church and made every appearance of sincere conversion. He made a confession of faith "and blessed God for this opportunity of freedom and libertie to injoye the ordinances of God in puritie." Soon after, he took up with John Oldham, a 38 Lyford, in a letter dated Aug. 22, 1624, said that the Separatists, or more exactly "church members," were the "smalest number in the collony." See Bradford, n. 1, above, n 8, p Bradford, n. 1, above, n 8 p 380. Historians differ in their interpretations of this event. Charles Andrews adopted a minority view, which thought that Bradford maligned Lyford. See Charles M Andrews, The Colonial Period of American History, Yale University Press, New Haven, 1934, p 276 and note. 40 William Hubbard, in Chronicles of the First Planters of Massachusetts Bay, Alexander Young (ed), Charles C Little, Boston, 1844, pp 20, 23, 24; see also, editor s note, p Thomas Morton, NEC, pp Morton never denied that Lyford was as lecherous as the Separatists accused him of being, instead seeming rather amused by the idea. 103

14 AUSTRALIAN JOURNAL OF LAW AND SOCIETY (1995) 11 man who "had been a cheefe sticler in the former faction among the particulars".42 In 1624, the year after Oldham and the particulars had arrived, a change was made in the Plymouth government. The number of assistants increased from one to five, and the Governor was given a double vote. In September 1623, Bradford wrote to London that: Touching our governmente you are mistaken if you think we admite weomen and children to have to doe in the same, for they are excluded, as both reason and nature teacheth they should be; neither doe we admit any but such are above the age of 21 years, and they only in some weighty maters, when we thinke good.43 The particulars, having arrived in June, would not have been able to vote in any election until 1624, if they were to have the franchise at all. As Bradford s letter indicated, the franchise was quite limited, though he was willing to entertain proposals to extend it. His reluctance, he claimed, was it was not actually "so ordered in our patent." Whatever his feelings, he seems not to have implemented any changes toward the expansion of the vote, only of the governing power. In the list of the conditions that the colony and the particulars were to meet, the particulars were subject to the colony s laws, freed from the general employment (and therefore not entitled to the general stores), required to pay a bushel of Indian wheat to the government for its maintenance, and prevented from trading with the Indians. The colony s only condition was to welcome them and allot them land.44 The events that followed the alliance between Lyford and Oldham suggest that the right to vote was at the crux of their dispute with Plymouth leaders. Lyford began sending letters full of complaints back to England via the transport ships. His grumblings were mostly against the Separatists, whom he thought intolerant. They had disagreed with him about two orthodox doctrines which he defended. There were other accusations that were economic rather than religious. The established planters "sought the mine of 42 Bradford, n. 1, above, n 8, pp Bradford mentioned trouble with the particulars in vol. 1, p. 317, though he did not mention Oldham by name. Particulars were to be "subjecte to the generall Government," but in other ways to "be for themselves." Their position was ambiguous, not to mention precarious. 43 Bradford, above, n 8, 1: Bradford, above, n 8 pp 1:

15 BODIES OF LIBERTY: the perticulers," trying to starve them out.45 Moreover, Lyford gave the company a few recommendations. Firstly, immigrants from Leiden should be held back, so as not to increase the number of Separatists. Secondly, "the perticulers should have voyces in all courts and elections, and be free to bear any office." To effect this, Lyford suggested changing the status of every particular to that of adventurer, even if he was only a servant. Thirdly, Lyford hoped Standish would be replaced with another captain. If the company was not willing to heed him, Lyford warned, the particulars might have to settle elsewhere, or would possibly end up "joyning with these hear."46 Bradford intercepted the letters, copied them, and sent them on to the company. He then waited for Lyford and Oldham to further ensnare themselves. A letter sent by an unidentified "confederate" said that Oldham and Lyford "intended a reformation in church and commone wealth."47 Oldham began challenging the authorities, fighting with Standish about having to stand watch, insulting the governor, and calling "them all treatours, and rebells."48 Finally, Lyford held a public meeting on the Sabbath, administered the sacraments according to Anglican rites, and baptised the child of William Hilton, who had come over in 1621 and had previously been well-disposed toward the colony.49 The governor called a general court, and Oldham and Lyford were accused of "shuch things as they were guilty of."50 Lyford claimed that John Billington and others had made the 45 Bradford, above, n 8, 1: Bradford, above, n 8, pp 1: Bradford, above, n 8, p 1: Bradford, above, n 8, pp 1: Stratton, above, n 3, pp Bradford, above, n 8, p 1:386. This weak statement of the nature and substance of the proceedings may indicate a procedural innovation, a quasi-civil hearing in which a person is brought before the court to answer accusations that he or she has caused turmoil in the community. A similar process took place during the Antinomian Controversy in 1637 in Massachusetts. In my Ph.D. dissertation, Religion and Law in Colonial New England, , which is still in progress, I argue that the proceedings against the Antinomians were not criminal proceedings in which formal charges were levied against the defendants, but rather, were modifications of a form of canon law in which parties were called together by summoning the defendant and attempting to resolve differences between the community and him. There is not enough information about this incident with Lyford to be sure of the procedural posture. As with the Antinomians, Lyford was banished, a criminal sanction primarily inflicted upon political offenders. 105

16 AUSTRALIAN JOURNAL OF LAW AND SOCIETY (1995) 11 complaints, and he was simply forwarding them on their behalf.51 Billington denied any involvement; Lyford then made a tearful confession. The court sentenced Oldham and Lyford to banishment, Oldham to leave immediately and Lyford within six months. Bradford acknowledged that the court hoped for Lyford s reform and to eventually commuting the sentence. Oldham, on the other hand, was given no quarter After Oldham left, Lyford seemed to fall into line. Although, he was soon writing letters back to England and he came again before the court. His own wife testified that he was a rake. Edward Winslow found damaging information in London about Lyford s tenure as a minister in Ireland.53 He was then expelled. Yet that was not the end. John Oldham returned. "[T]hough it was part of his censure for his former mutinye and miscarriage, not to returne without leave first obtained, yet in his dareing spirite, he presumed without any leave at all." It so happened that Oldham arrived at "the time of their Election Court".54 He called all who did not support him traitors and rebels. As punishment, the court made him walk through a line of musketeers who hit him on his "brich" with the butts of their muskets. Oldham s return for the election was more than coincidence. The government of the colony was in the hands of a few, and there were repeated proposals by Lyford, Oldham and the company to change that. Even the signatories of the Mayflower Compact in the years after the second patent may not have had the right to vote in all matters. Although Billington, for example, was a signatory, he may not have been empowered by the Compact once the new patent was issued. The government underwent two changes in the period from 1620 to When John Carver died in 1621, Bradford became governor and an Assistant was elected. Four Assistants were added later. The first, Isaac Allerton, was 51 Bradford, above, n 8, vol. 1, p 395. Billington was the only other person named by Bradford as on Lyford s side. This fact makes George Langdon s argument that the quarrel was between old-comers and new-comers less acceptable as a complete explanation. Billington was a Mayflower passenger, but a non-separatist. Also, William Hilton, whose child Lyford baptised, was an old planter but a non-separatist. 52 Bradford, above, n 8, p 1: Bradford, above, n 8, pp 1: Bradford, above, n 8, p 1:

17 BODIES OF LIBERTY: a thorn in Bradford s side.55 Allerton was not an overt actor in the Oldham- Lyford affair, but the addition of the four Assistants and the doubling of the governor s vote may have been steps taken in order to ensure he would not undermine the government s stance. Freemanship, as the means by which men had a voice in their government, was an explosive issue in early New England society. No colony escaped the controversy over who would be admitted to the franchise. Plymouth did not restrict its franchise to church members, as Massachusetts and New Haven were later to do. A number of non-separatists were admitted to freemanship by the time the first records appeared: Edward Doty, the former servant; Miles Standish; Stephen Hopkins. No extant records remain for the years prior to Billington s execution for murder to reveal whether or not he was a freeman.56 It was not predetermined that Plymouth would have a franchise based on neither property qualifications nor church membership. It was the result of protest and compromise. One became a freeman in Plymouth by applying to the General Court, a process that was only as restrictive as the members of the court would allow.57 The franchise in Plymouth reflected the colony s composition of Separatists and non-separatists. The arguments over participation in government had at their roots a difference of opinion over the applicability of English law in the colony and the place of religion within the society. In general, those who wanted a broader franchise had a greater connection to the economic faction of the Company than those who favoured restriction. The latter were closer to the Company members who supported the religious enterprise. Lyford saw the connection between political and religious divisions, and he realised the potentially harmful role religion played in the economic life of the colony. The "wicked Machiavellians," as Nathaniel Morton called Lyford and Oldham, believed the Separatists were traitors. The Separatists attacked Lyford for derogating from "the libertie we have in Jesus Christ."58 Plymouth, despite the Separatist/non-Separatist, old planter/new planter divisions among its settlers, developed with less ideological conflict than 55 See Stratton, above, n 3, pp 44, Nathaniel B Shurtleff (ed) Records of the Colony of New Plymouth, n. 8, William White, Boston, 1857, pp See also, Stratton, above, n 3, pp Billington s son, Francis, never became a freeman, which may indicate the father s status as well. 57 Stratton, above, n 3, pp 147; K Nathaniel Morton, above, n 3, p

18 AUSTRALIAN JOURNAL OF LAW AND SOCIETY (1995) 11 Massachusetts. The Bay Colony drew its colonists from a wider base than Plymouth, having among its first inhabitants an ill-defined Puritan following. Its settlers ranged from the radically separatist to the politically moderate, to the religiously indifferent. Freemanship gave men both legislative and judicial power, and control of the extension of freemanship determined the future of the colonies.59 Freemen elected officials to the legislatures, which also served as courts. They comprised the juries and grand juries, and as such shaped ideas about criminality and social deviance, morality, and human relations. Freemanship was for males analogous to, and in Massachusetts and New Haven dependent upon, church membership. Once a man was part of the body, he had certain privileges and responsibilities. His voice in the decision-making process was recognised, but he submitted himself to greater degree of control and discipline should he choose to deviate from established practice and thought.60 According to the Charter of Massachusetts Bay, the grantees held the land in "free and common Socage", with all "jurisdiccons, rights, royalties, liberties, freedomes, ymmunities, privileges, franchises, preheminences, and commodities whatsoever" they needed "for the planting, ruling, ordering, and governing of Newe England".61 The Governor or Deputy Governor, the Assistants and the freemen would meet in assembly as the General Court. More freemen, stockholders in the company, could be added by the Governor, Deputy Governor, and six Assistants as they saw fit, though they were under no obligation to do so.62 When John Winthrop emigrated in 1630 most of the freemen in the Company remained behind. The first General Court was roughly equivalent to the Governor, Deputy Governor and Assistants. Death claimed some of the first Assistants upon arrival, and the Charter required a minimum number of seven Assistants at all times. A need for freemen therefore existed.63 Even if the Assistants had wanted to keep the number of freemen low, they may not have been able to, as evidenced by the results in Plymouth s 59 Black, The Judicial Power, pp 30-33, wonders whether it was philosophic commitment or fear that made Massachusetts Assistants grant freemanship rather liberally, given that the Charter imposed "no directive whatsoever." 60 Rutman, Winthrop's Boston, pp , observed that the General Court passed laws in 1643 and 1647 addressing the problem of men who were eligible for freemanship but who neglected to apply. 61 MCR, vol 1, p MCR, vol 1, p George Haskins, Law and Authority in Early Massachusetts, Macmillan, New York, 1960, p

19 BODIES OF LIBERTY: struggles. In October 1630, 109 men asked to be made freemen in Massachusetts. Whether they are threatened to rebel is unknown. In May 1631 they were admitted. At the same time "it was likewise ordered and agreed that for the time to come noe man shalbe admitted to the freedome of this body polliticke, but such as are members of some of the churches within the lymitts of the same".64 In the next three years, Massachusetts evolved into a representative government in which the freemen elected the Governor, Deputy Governor, and Assistants once a year. They were represented by their chosen deputies at the other three General Courts held during the year.65 In the early 1630s Haskins estimates there were 1300 freemen,66 a number although seemingly large, tells little given the population growth in New England at the time. The number of white settlers (men, women and children) in 1630 was approximately 1800; in 1640, 13, Moree telling is Robert Wall s estimate that in the late 1640s the counties of Suffolk and Middlesex registered over 50% of their adult males as freemen (825 out of 1535), with Essex and Norfolk registering approximately 40% (380 out of 965).68 As George Haskins aptly observed, the majority of freemen were subordinate to the magistrates, ministers and elders, but "their sentiments and attitudes are not to be discounted, for the strength of Massachusetts institutions ultimately depended upon those who accepted them and lived within their framework".69 By 1635, some had chosen not to live within this framework, and the concept of freemanship was often a major factor. In 1636, Massachusetts instituted a test for church membership in which a persion narrated his or her conversion experience. The test limited church membership and, by extension, freemanship.70 Moreover, a conflict over whether the magistrates had a "negative voice", or veto power, sparked a heated controversy among those who were already freemen.71 Between 1635 and 1640 several groups of colonists departed the Bay for Rhode Island, Connecticut, New Haven and New Hampshire. The 64 MCR, 1:79-80; Haskins, above, n 63, pp Haskins, above, n 63, p 29-31; see also Robert Wall, Jnr, Massachusetts Bay: The Crucial Decadec, , Yale University Press, New Haven, 1972, pp Haskins, above, n 63, p Cressy, above, n 1, pp X Wall, above, n 65, p 39. fv9 Haskins, above, n 63, p Morgan, above, n 15, p Wall, above, n 65, p 11; Winthrop, above, n 2, p 2:118. In 1643 the issue of the negative voice continued to plague the Bay. Winthrop claimed the order of the General Court in 1634 in favor of the magistrates reflected the intent of the patent. See also William K Holdsworth, Law and Society in Colonial Connecticut, p