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premacy down to the period of the American Revolution. Marriages, except in special cases, were required to be celebrated in the parish church, and according to the rubric in the common prayer book. The law of inheritance of the parent country was silently maintained down to the period of the American Revolution; and the distribution of intestate estates was closely fashioned upon the same general model. Devises also were regulated by the law of England; and no colonial statute appears to have been made on that subject until 1748, when one was enacted, which contains a few deviations from it, probably arising from local circumstances. One of the most remarkable facts in the juridical history of the colony, is the steady attachment of the colony to entails. By an act passed in 1705, it was provided, that estates tail should no longer be docked by fines or recoveries, but only by an act of the legislature in each particular case. And though this was afterwards modified, so as to allow entails to be destroyed in another manner, where the estate did not exceed £200. sterling in value, yet the general policy continued down to the American Revolution. In this respect the zeal of the colony to secure entials and perpetuate inheritances in the same family outstripped that of the parent country.

§ 51. At a very early period the acknowledgment and registry of deeds and mortgages of real estate were provided for; and the non-registry was deemed a badge of fraud. The trial by jury, although a privi

1 I refer upon these subjects to Henning, Stat. 122, 123, 144, 149, 155, 180, 240, 268, 277, 434; 2 Hen. Stat. 48, 50; 3 Hen. Stat. 150, 170, 360, 441.

2 5 Henning, Stat. 456.

3 3 Henning, Stat. 320, 516; 4 Henning, Stat. 400; 5 Henning, Stat. 414; 1 Tuck. Black. Comm. App.

4 1 Henning, Stat. 248; 2 Henning, Stat. 98; 3 Henning, Stat. 321.

lege resulting from their general rights, was guarded by special legislation. There was also an early declaration, that no taxes could be levied by the Governor without the consent of the General Assembly; and when raised, they were to be applied according to the appointment of the Legislature. The burgesses also during their attendance upon the assembly were free from arrest. In respect to domestic trade, a general freedom was guarantied to all the inhabitants to buy and sell to the greatest advantage, and all engrossing was prohibited. The culture of tobacco seems to have been a constant object of solicitude; and it was encouraged by a long succession of Acts sufficiently evincing the public feeling, and the vast importance of it to the prosperity of the colony. We learn from Sir William Berkeley's answers to the Lords Commissioners in 1671, that the population of the colony was at that time about 40,000; that the restrictions of the navigation act, cutting off all trade with foreign countries, were very injurious to them, as they were obedient to the laws. And "this (says he) is the cause, why no small or great vessels are built here; for we are most obedient to all laws, whilst the New-England men break through, and men trade to any place, that their interest leads them." This language is sufficiently significant of the restlessness of New-England under these restraints upon its commerce. But his answer to the question respecting religious and other instruction in the colony would in our times create universal astonishment, "I thank God (says he) there are no

1 1 Henning, Stat. 290.

2 See 1 Hen. Stat. 126, and Index, tit. Tobacco, in that and the subsequent volumes; 2 Henning, Stat. 514.

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free schools nor printing; and I hope we shall not have these hundred years; for learning has brought disobedience and heresy and sects into the world; and printing has divulged them, and libels against the best government. God keep us from both." In 1680 a remarkable change was made in the colonial jurisprudence, by taking all judicial power from the assembly, and allowing an appeal from the judgments of the General Court to the King in Council.2

1 2 Hen. Stat. 511, 512, 514, 517; 1 Chalm. Annals, 328; 3 Hutch. Collect. 496.

2 Marsh. Colon, ch. 5, p. 163; 1 Chalm. Annals, 325.

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CHAPTER III.

ORIGIN AND SETTLEMENT OF NEW-ENGLAND.

§ 52. We may now advert in a brief manner to the history of the Northern, or Plymouth Company. That company possessed fewer resources and less enterprise than the Southern; and though aided by men of high distinction, and among others by the public spirit and zeal of Lord Chief Justice Popham, its first efforts for colonization were feeble and discouraging. Capt. John Smith, so well known in the History of Virginia by his successful adventures under their authority, lent a transient lustre to their attempts; and his warm descriptions of the beauty and fertility of the country procured for it from the excited imagination of the Prince, after King Charles the First, the flattering name of New-England, a name, which effaced from it that of Virginia, and which has since become dear beyond expression to the inhabitants of its harsh but salubrious climate.1

§ 53. While the company was yet languishing, an event occurred, which gave a new and unexpected aspect to its prospects. It is well known, that the religious dissensions consequent upon the reformation, while they led to a more bold and free spirit of discussion, failed at the same time of introducing a correspondent charity for differences of religious opinion. Each successive sect entertained not the slightest doubt of its

1 Robertson's America, B. 10; Marsh. Amer. Col. ch. 3, p. 77, 78; 1 Haz. Coll. 103, 147, 404; 1 Belknap's New-Hampshire, ch. 1.

own infallibility in doctrine and worship, and was eager to obtain proselytes, and denounce the errors of its opponents. If it had stopped here, we might have forgotten, in admiration of the sincere zeal for Christian truth, the desire of power, and the pride of mind, which lurked within the inner folds of their devotion. But unfortunately the spirit of intolerance was abroad in all its stern and unrelenting severity. To tolerate errors was to sacrifice Christianity to mere temporal interests. . Truth, and truth alone, was to be followed at the hazard of all consequences; and religion allowed no compromises between conscience and worldly comforts. Heresy was itself a sin of a deadly nature, and to extirpate it was a primary duty of all, who were believers in sincerity and truth. Persecution, therefore, even when it seemed most to violate the feelings of humanity and the rights of private judgment, never wanted apologists among those of the purest and most devout lives. It was too often received with acclamations by the crowd, and found an ample vindication from the learned and the dogmatists; from the policy of the civil magistrate, and the blind zeal of the ecclesiastic. Each sect, as it attained power, exhibited the same unrelenting firmness in putting down its adversaries. The papist and the

1 Dr. Robertson has justly observed, that not only the idea of toleration, but even the word itself in the sense now affixed to it, was then unknown.* Sir James Mackintosh, a name equally glorious in judicial and ethical philosophy, has remarked, that this giant evil (the suppression of the right of private judgment in matters of religion) had received a mortal wound from Luther, who in his warfare with Rome had struck a blow against all human authority, and unconsciously disclosed to mankind, that they were entitled, or rather bound to form and utter their own opinions, and most of all on the most deeply interesting subjects.f

The whole passage deserves commendation for its catholic spirit. Robertson's America, † Mackintosh's Dessertation on the Progress of Ethical Philisophy, (Phila. 1832,) p. 36.

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