The Plymouth Colony Archive Project

Plymouth Colony Legal Structure

© 1998 Copyright and All Rights Reserved
by Christopher Fennell

A.  The Duties and Rights of Freemen
B.  The General Court
C.  The Governor and the Court of Assistants
D.  The Grand Enquest
E.  Towns and Select Courts
F.  The County Courts

A.  Estate and Inheritance Rules
B.  Criminal and Immoral Conduct
C.  Domestic Conduct and Marriage Rules
D.  Servants and Masters
E.  Dealings with Outsiders
F.  Land Ownership and Land Use
G.  Resource Management
H.  Defense of the Colony

This paper sets forth an overview of the government organization, courts, and laws of the Plymouth Colony during the period of 1620 through 1691. The legal history of the New Plymouth Colony was once viewed as largely insignificant to the development of American law. However, legal historians have since recognized Plymouth's many contributions, including the institution of civil marriage, creation of a registry of deeds, adoption of inheritance rules other than primogeniture, and creation of the first statements in the colonies of representative government, a "constitution" and a "bill of rights" (Haskins 1969a: 121-23). The legal structure of the Colony also included some unusual aspects, such as a centralized "General Court" which performed both legislative and judicial functions. The primary sources for the information addressed in this paper are the Records of the Colony of New Plymouth in New England ("PCR"), supplemented by a variety of secondary sources.

I. Organization of the Government and Courts in Plymouth Colony

The legal and governmental structure for Plymouth Colony was not set forth in a royal charter from the Monarchy in England. The members of the Colony produced four sets of written codifications of their laws over time, the first in 1636, followed by collections of laws published in 1658, 1672 and 1685. Yet, none of this law-making was based on authority granted expressly by royal charter, and Plymouth was fairly unique in its time for lacking such a charter. The colonists did possess "land patents," which conferred title in the new "plantation" land to William Bradford and his "associates." However, these land patents lacked the full grant of authorities that a charter would provide (Langdon 1966: 40).

Such charters typically provided the recipients with the express authority to establish a colonial government and to exercise powers over the inhabitants of the colony. Royal charters also provided details as to sources for substantive law that should be utilized in the colony (Chafee 1969: 56-57). For example, John Winthrop obtained a Royal Charter from King Charles I in 1630 for establishing the Bay Colony, and that charter served "as the legal basis for the government of the Massachusetts Bay Colony for more than half a century" (Powers 1966: 511).

In the absence of a royal charter, the Plymouth colonists initiated their organization of a government and legal structure by formulating a self-declared "combination" in which the necessity of forming a "civill body politick" was set forth:

In the name of God, Amen. We whose names are underwriten, the loyal subjects of our dread sovereign, Lord King James, by the Grace of God, of Great Britain, France, and Ireland, King, Defender of the faith, etc. Having undertaken for the glory of God, and the advancement of the Christian faith, and the honor of our King and country, a voyage to plant the first colony in the northern parts of Virginia; do by these presents solemnly and mutually, in the presence of God and one another, covenant and combine ourselves together into a civil body politic, for our better ordering and preservation, and furtherance of the ends aforesaid; and by virtue hereof, do enact, constitute, and frame such just and equal laws, ordinances, acts, constitutions, and officers, from time to time, as shall be thought most meet and convenient for the general good of the colony; unto which promise all due submission and obedience. (PCR 11: vi)

Legal historians often emphasize that the Plymouth Colony applied a combination of English common law and Mosaic law in regulating the daily affairs of the settlers. This invocation of religious authority was also useful in establishing the Colony's own authority to govern. What they lacked by royal charter was often obtained by invocation of the Colony's service of the greater "glory of God," just as the Monarchy invoked this service of God as a source of legitimacy for its own claim of power and authority. Interestingly, when Plymouth Colony's General Court later directed that towns should establish their own regulations for managing the local, day-to-day affairs of the townspeople, the General Court required that such local regulations be made with fidelity to the laws of the "Govern[ment]" of the General Court, and not to England itself. The Bradford land patent required that no law be established by the colonists which would be repugnant to the law in England. Historian George Langdon, Jr. has emphasized that the Plymouth colonists resisted this restriction for some time, based on their view that "different circumstances" in the hazardous territory of the New World made "rigid adherence to English law" less impelling (Langdon 1966: 93).

Governor Bradford and other prominent officers of the Colony realized the riskiness of proceeding without a royal charter for their venture. They instead possessed only a land patent issued by the New England Council, a private corporation which did not possess the authority to grant the colonists any right to self-governance (Langdon 1966: 188). Bradford, Isaac Allerton and others attempted repeatedly over the years of the Colony to obtain a charter from the Crown. They failed to do so, and Plymouth Colony ultimately lost its self-governance and was annexed as part of the Massachusetts Bay Colony in 1691.

As a first step in organizing the government in 1620, those original settlers who concerned themselves with this effort convened and elected several "Assistants" and John Carver as the first "Governor." Carver died the next year, and William Bradford was elected as the next Governor and remained in that office for decades. These officers were elected again in each year by the General Court, which was convened on a fairly informal basis in the earliest years of the Colony (Powers 1966: 28). None of these officials were trained in the law, and there were no lawyers present in the Colony in these early decades (Chafee 1969: 65; Goebel 1969: 87).

Legal historians have stated that there were no lawyers in the Colony throughout the 17th century. However, by 1680, the General Court was sufficiently acquainted with attorneys to enact a limit on the fees they could receive in any case to five shillings (PCR 11: 251). The Governor and Assistants operated, through the Court of Assistants (also called the "Counsell"), to handle all matters on a subject-by-subject and case-by-case basis. They did not have the authority to enact comprehensive laws and ordinances, and rather issued orders on a limited array of subjects through the Court of Assistants. Only the General Court, attended by voting freemen, had the authority to enact such legislation, and it did not do so in a comprehensive manner until the codification of laws in 1636 (PCR 11: 7, 11; Langdon 1966: 92).

The structure of the Plymouth government was described in detail in this 1636 code (PCR 11: Part I). Legal historian George Haskins, Jr. describes the significance of this body of laws:

Two things are remarkable about this code, which turned out to be something more than a mere compilation and revision of existing laws. In the first place, the code sets forth the general scheme or frame of government of the colony: the source of legislative power, the duties and authority of the several officers of the colony, qualifications for the franchise, provision for the holding of courts, and the source of authority to declare war. Second, it contains a rudimentary bill of rights, certainly the first in America, antedating by five years that adopted by Massachusetts Bay in the Body of Liberties of 1641. These two features alone justify the statement that the 1636 code established a constitution of the type that was to become familiar in America after the Revolution. (Haskins 1969a: 123)

A. The Duties and Rights of Freemen

The adult men in the first settlement of Plymouth all held the status of "stockholders" in the joint-stock company that financed the Colony or "plantation." They thus shared in the ownership of the plantation's assets, its speculative economic venture, and its liabilities. They participated in the economic venture and its colonial government (Langdon 1966: 79). The colonists also began use of the separate term "freemen" early in the settlement, which indicated a citizen of the Colony, who possessed the right to vote for the Governor and Assistants and the right to hold office (thus, all stockholders were freemen, but not all freemen would be stockholders). Women and servants were not eligible for freeman status.

Sometime in the period from 1636 to 1671, the Plymouth colonists formulated a declaration called The General Fundamentals, which further emphasized their desire for self-governance as "freemen" or "associates":

Wee the Associates of New-Plimouth, comeing hither as Freeborn Subjects of the State of England, endowed with all and singular; the Priviledges belonging to such being; Assembled; Do in Act [enact], Ordain and Constitute; That no Act, Imposition, Law or Ordinance, be made or imposed upon us, at present or to come; but such as shall be made or imposed by consent of the Body of Freemen or Associates, or their Representatives legally assembled: which is according to the free Liberties of the State of England. (Powers 1966: 97, quoting from the 1672 Book of Laws).

The procedure for becoming a freeman was fairly simple, with a candidate being approved for status as a freeman by the existing freemen in his town, and then the name was submitted and accepted by the General Court. Laws passed in 1658 denied the grant of freeman status to those persons who were "opposers of the good and [wholesome] lawes of the Collonie or manifest opposers of the true worship of God or such as refuse to doe the Countrey seruice." (PCR 11: 65, 101; Langdon 1966: 81).

The Colony's General Court placed further restrictions on freemen status in 1658. The procedure for becoming a freemen now required that a candidate would have to wait a year after his name was presented to the General Court before he would be approved as a freemen. Restrictions focusing on Quakers were added as well. No Quaker could be a freemen, and a freemen who became a Quaker would lose his status, as would any freemen who aided Quakers (PCR 11: 79, 101; PCR 3: 162, 189; Langdon 1966: 88).

The duties of being a freeman may have been more than some persons cared to possess. Towns often were forced to threaten fines for freemen failing to attend town meetings (PCR 6: 265; Langdon 1966: 84). An even heavier fine was levied against freemen who failed to attend the General Court or to serve on the Grand Enquest when selected to do so (e.g., PCR 11: 10, 43, 157; Langdon 1966: 85). As a result, by 1638 the freemen had prompted legislation which permitted them to elect representatives, called "deputies," who would then attend the sessions of the General Court for each town. Those persons elected deputies tended to be re-elected year after year (PCR 11: 31; Langdon 1966: 98). While only freemen could be elected to be deputies, nonfreemen who paid taxes and swore fidelity to the Colony were permitted to vote for candidates for deputy. By 1652, the General Court instituted a process for freemen to vote by proxy at the General Court sessions, to prevent them from having to travel to Plymouth Town where the Court was convened (PCR 11: 81, 157; Langdon 1966: 85-86).

The declaration of "The Generall Fundamentals" set forth in the 1672 Book of Laws listed an array of rights and privileges possessed by freemen. No freeman was to be punished "but by virtue or equity of some express Law of the General Court of this Colony, the known law of God, or the good and equitable laws of our Nation" (Powers 1966: 97, quoting from the 1672 Book of Laws). From 1623 onward, the law required that all criminal charges and charges of trespass or debts were to be tried to a jury of twelve freemen (e.g., PCR 11: 3). A defendant could challenge the appropriateness of particular freemen sitting on their jury, including the use of "peremptory" challenges of 6 or 8 of the jurors in capital cases (a peremptory challenge is one for which the defendant need not give a reason). For a capital case to proceed against a freeman, there had to be at least two witnesses, "or that which is the equivalent thereunto," providing evidence against the defendant. Freemen 21 years or older also had the right to make wills and dispose of their property (Powers 1966: 97-98, quoting from the 1672 Book of Laws).

Freemen were required to take an oath of allegiance to the Colony and to England (e.g., PCR 11: 8). There were several instances of charges brought to the Court over the years of freemen failing or refusing to take such an oath. In 1659, for example, twelve men were convicted for refusing to take the oath, and were fined 5 pounds sterling each, although not banished or imprisoned (PCR 3: 70).

B. The General Court

The Colony's General Court was unusual in that it exercised both the legislative and judicial functions. The legislative function was carried out solely by the General Court in its sessions, at which the Governor and Assistants would preside. However, legislation required the vote and approval of the freemen, and acts of legislation could not be passed by government officers alone:

That the lawes [and] ordnanc[s] of the Colony [and] for the Governm[ent] of the same be made onely by the ffremen of the Corporation [and] no other. provided that in such rates [and] taxa[cions] as are or shall be laid upon the whole they be w[ith]out [par]tiallity so as the ffreeman be not spared for his freedome, but the levy be equall. And in case any man finde himselfe aggrieved that his complaint may be heard [and] redressed if there be due cause. (PCR 11: 11)

The role and power of this Court increased over time, likely as a result of pressure from freeman to have the power of other courts lessened. For example, in 1639, the General Court removed from the Governor and the Court of Assistants the power they had exercised in allocating and granting land to settlers. This issue of land allocation procedures is discussed further in Section II.F, below.

In 1646, the General Court further limited the role of the Governor and Court of Assistants to judicial concerns when sitting as a court (PCR 11: 54; Langdon 1966: 92). The Governor remained influential, however, because his position was the most influential within the General Court as well. The Governor had the authority to summon the General Court into special sessions, he presided over the Court when it was in session, and he cast deciding votes in the event of a tie. The Governor also possessed the authority of a judicial officer, and possessed the powers to arrest and commit persons to jail (PCR 11: 7, 81-82; Langdon 1966: 95). Particularly after 1640, the General Court involved itself in a pervasive role concerning the affairs of the Colony, including the sole authority to enact legislation, make war or alliances, distribute land, and approve the admission of new freemen (Langdon 1966: 93). The General Court met regularly in March, June, October and December of each year. From 1620 through 1642, annual elections of all government officials were held at the Court's March session, and in the June session thereafter (e.g., PCR 11: 6). After 1645, the December session was discontinued.

As to the General Court's judicial powers, historians such as George Langdon, Jr. state that the procedures followed in those proceedings are unknown, but that the Governor and Assistants likely sat at the bench as judicial officers while the case was decided by a jury of freemen (Langdon 1966: 94). It is difficult to discern the precise procedures required of each type of court when one reviews the court orders compiled in the Plymouth Colony Records. The 1636 code did not set forth great detail on what procedures were to be followed for trials in the General Court or the Court of Assistants, or precisely how the Grand Enquest was to be administered in each case. Nor does the 1636 code make specific reference to any procedural guides from England. Recall as well that there likely were no lawyers present in the Colony at this time. However, a persuasive argument has been made that the form of terminology used in the Colony's court orders shows that the colonists used the procedures of the local courts of England as a guideline. As George Haskins, Jr. cogently states:

The terms and the forms which appear in the records are in great part the forms and procedures of manor and borough courts rather than those of the king's courts that developed the common law. That this should be so is not surprising, for in the 17th century the legal center of gravity for the average Englishman was the local court of the neighborhood -- the borough court, the court leet, and the county court. There he would turn to collect a debt, replevy a cow, or abate a nuisance, and it is a matter of no small interest that the early Plymouth court records bear a striking resemblance to those of the English manorial courts of this period. (Haskins 1969a: 127)

[T]he code of 1636 is reminiscent of many 15th and 16th century English borough customals, which probably furnish the models on which the colonists consciously framed this and later compilations. In them, for example, are the same recitals of authority, the specifications of power, the election of officers, the oaths to be taken, that are found in the English customals. (Haskins 1969a: 127 (footnotes omitted))

D. C. Parnes (1971) has argued that the procedures for the Plymouth Colony's courts were based on William Lambarde's 1592 Eirenarcha: Or of The Offices of the Iustices of the Peace in Foure Bookes. Having compared this 1592 customal with the compilations of laws set forth in the Plymouth Colony Records (PCR 11), I find this argument highly persuasive. The Eirenarcha ("Eirenarcha" is the name for the office of justice of the peace used in England in the 16th and 17th centuries. Black's Law Dictionary (5th ed. 1979)), is a compilation of procedures for lesser courts which was intended to "serve for the present age wherein wee now live, and somewhat further the good endeavor of such gentlemen as be not trained up in the continuall studie of the laws" (Lambarde 1592: 2).

Parnes outlined evidence that William Cecil, who was Lord Burghly and a justice of the peace in England, gave a copy of this 1592 Eirenarcha to William Brewster sometime before Brewster's departure for Plymouth (Parnes 1971: 27-29). "Though scholarly, Eirenarcha's practical approach and mundane language, which was devoid of much technical phraseology, likely would have been the logical choice for transportation to and use in Plymouth" (Parnes 1971: 29). One original 1592 Eirenarcha, with the Cecil family seal on its front cover, was handed down "for many generations" in the local court in Plymouth Town. Sometime before 1907, this edition was given for safekeeping to Arthur Lord, the president of the Pilgrim Society of Plymouth and of the Massachusetts Bar Association (Parnes 1971: 28).

C. The Governor and Court of Assistants

The Governor and seven Assistants were elected annually in the March General Court session. They then appointed a number of lesser officials, including "Constables" for the keeping of peace in individual towns (e.g., PCR 11: 7). Also appointed were "Messengers" who held a variety of duties, from publishing announcements of intended marriages, executing punishments, acting as jailers, maintaining standards of measures, and conducting land surveys (PCR 11: 18-19). One of the Assistants was also appointed to serve as Colony Treasurer each year, and he would keep account of the income received by the Government "by way of fine amercea[ment] or otherwise" (PCR 11: 7; see PCR Vol. 7 "Treasury Accounts"). The Court of Assistants also selected someone each year to serve in the "office of Coroner" for conducting inquests when persons were found dead under unknown circumstances (PCR 11: 7).

The Assistants were also referred to as the "Counsell" to the Governor, and held the duty of "giving [their] best advice both in publick Court [and] private Councell [with] the Gov[ernor] for the good of the Colonyes [within] the limit[s] of this Governm[ent]" (PCR 11: 8). (For example, the early involvement of the Governor and the Court of Assistants in land allocations is discussed in Sections I.B and II.F.) The Court of Assistants also handled an array of judicial decision-making in the Colony. Each Assistant was charged with a duty of "hauing a special hand in the examina[cion] of publick offenders" and "a voice in the censuring of such offenders as shall not be brought to publick Court" (PCR 11: 8-9). An Assistant could also perform the role of examining, arresting and imprisoning suspected law breakers when the Governor was absent, as long as the defendant was presented to the full Court of Assistants or the Governor thereafter, and the Assistants often referred defendants to the full General Court for more serious charges. Assistants would often be referred to as "Magistrates" when performing these judicial functions in regard to criminal charges (PCR 11: 9).

The Court of Assistants typically convened their sessions the first Tuesday of each month, except when the General Court was in session, in which case the Assistants would convene on another day in that month (PCR 11: 37). A smaller assembly of the Governor and only two Assistants could decide civil disputes between "man [and] man" involving amounts of 40 shillings or less, and could decide "offenc[s] of smale nature" (PCR 11: 12). In time, only one Assistant was required to sit in judgment on matters of petty crime, much in the same way as a justice of the peace in England (Langdon 1966: 204). In contrast, cases of greater "waight" within their jurisdiction were not to be tried unless "the major part of the Assistant[s] be p[re]sent" (PCR 11: 41). Cases of "capital crimes" were tried to the General Court, with the Governor and Assistants serving as judicial officers and freemen serving as the jury.

D. The Grand Enquest

The 1636 laws set forth a description of the procedures for the "Great Quest," which was also referred to as the Grand Enquest, Great Inquest or Grand Inquest:

That a great Quest be pannelled by the Gov[ernor] and Assistants or the major [part] of them [and] warned to serue the king by enquiring into the abuses [and] breaches of such wholesome lawes [and] ordinance[s] as tend to the preserva[cion] of the peace [and] good of the subject. And that they present such to the Court as they either finde guilty or probably suspect that so th[ey] may be [pro]secuted by the Gov[ernor] by all due meanes.
It is enacted That no p[re]sentment hereafter shalbe exhibited to the Grand Enquest to be brought to the Bench except it be donn vpon oath and that it shalbe lawfull for any of the Assistants to administer an oath in such case. (PCR 11: 11).

These procedures for the Grand Enquest paralleled those used in the local, justice of the peace courts in England in this time period. The 1592 Eirenarcha by William Lambarde described a similar approach:

The Justices of the Peace, doe (at their Sessions) take knowledge of causes within their Jurisdiction, eyther by the Oath of Inquirors, or by the presentment or declaration of other men: And this Inquirie is first prepared, by the appearance of the Officers and Countrie, and by the Articles given in charge: and then performed, by the presentment (or inditement) of them that had the charge to make it. (Lambarde 1592: 342)

The Grand Enquest issued presentments not just for individuals suspected of criminal conduct (e.g., PCR 11: 18), but also to officers of the Colony for failure to uphold their duties, to freemen and officers for failure to take the required oaths of allegiance, to freemen and deputies for failure to attend sessions of the Court or jury duty, and to particular towns for failure to maintain the prisons, pounds, or highways entrusted to their care by the General Court and laws of the Colony. Such transgressions as these typically would result in punishments by fines.

A more remarkable feature of the Colony's approach to the Grand Enquest was a duty of surveillance placed upon the jurors themselves during the time they were assigned to the Grand Enquest panel. Thus, the "Grand Jury men" were to watch for illicit behavior while outside the General Court sessions, and report anything significant to the local Constable:

ffor the p[re]venting of Idlenesse and other euells occationed thereby It is enacted at Court That the Grand Jury men of euery Towne shall haue power w[it]hin their se[ver]all Townshipps to take a speciall view and notice of all manner of [per]sons marryed or single dwelling w[it]hin their se[ver]all Townes that haue smale meanes to maintaine them and are suspected to liue idlely [and] loosely [and] to require an account of them how they liue, And such as they fynd delinquent and cannot giue a good account thereof vnto them that they cause the Constable to bring them before the Go[vernor] and Assistant[s] at Plymouth the first Court of Assistant[s] after such delinquenct[s] shalbe found out. (PCR 11: 32).

E. Towns and Select Courts

With the expansion of the Colony, the need arose for an increasingly active role of town governments in handling daily affairs of the settlers. By 1636 the General Court authorized the towns of Scituate and Plymouth to enact local orders to manage the affairs of their inhabitants, as long as those orders were "not contrary to the publick ordnances of the Govern[ment]" (PCR 11: 18; Langdon 1966: 201). This authority was extended by the Court to all towns a few years later (PCR 11: 32, 36; Langdon 1966: 201). The towns were each required to construct and maintain jail houses, impoundment areas for stray cattle, stocks and whipping posts (e.g., PCR 11: 11, 16). Failure to do so often resulted in a Grand Enquest presentment and subsequent fine levied by the General Court against the town. Towns also were to care for the poor, and to care for and "put to worke in fitting ymployment" those children of persons who received "releef" from the town and yet left their children idle (PCR 11: 38, 41).

In 1665, the General Court further ordered that the towns each establish a "select" court, which would have authority to adjudicate "civil" (that is, non-criminal) disputes concerning amounts of 40 shillings or less, and to adjudicate any local disputes over damage to Indian crops by livestock. These courts would consist of three or five selectmen. The selectmen were freemen, to be elected by the town, but then approved as selectmen by the General Court (PCR 11: 213; Langdon 1966: 203). These local select courts eventually proved unsuccessful in practice, due to unfair advantages given to local interests, and the General Court curtailed their power and jurisdiction over the next decade (PCR 11: 227, 238; Langdon 1966: 203-04).

F. The County Courts

With a comprehensive body of laws passed in 1685, the General Court tried again to structure a localized court system. This time it copied a system of "county courts" that had been utilized from the 1630's onward in the Massachusetts Bay Colony. The judges for these county courts were Assistants or "county associates" appointed by the General Court, and a quorum of three was required for the court to hold session. The county courts were given the powers to levy taxes, enforce collections, ensure the adequacy of each town minister's salary, and guard against a failure of religious worship by townsfolk (PCR 6: 194; Langdon 1966: 205). A litigant could appeal a decision of a select court to a county court, and appeal a decision of a county court to the Court of Assistants (Langdon 1966: 206, citing Book of General Laws, 1685: 6, 7).

II. Substantive Law of Plymouth Colony

The legislative codes passed by the General Court evolved notably over time. The 1636 collection of laws was fairly succinct (PCR 11: Part I). In 1658, all laws passed from 1623 through 1657 were reviewed and compiled into the 1658 Book of Laws (PCR 11: Parts II and III). Another compilation was published in 1672 (PCR 11: Part III), and again in 1685 (Powers 1966: 97).

The 1636 codification set forth (among other things) the powers of the government, the duties and responsibilities of each of the governmental officers, the oaths of officers and freemen, a listing of capital offenses and other criminal offenses, and various laws concerning land conveyance, inheritance, bounties on wolves, and the management of livestock and other resources. Yet, this set of laws did not address in great detail the moral and civic conduct expected of all individuals, and it did not yet intrude notably into the private lives of the colonists. The 1685 laws, in contrast, are far more expansive, and include numerous detailed enactments concerning the moral, religious and civic conduct expected of all persons living in the Colony (PCR 11: Part III; Langdon 1966: 207-09).

It would be unmanageable to provide a survey here of all areas of the substantive laws enacted by the Colony. As a workable sampling, the following discussion addresses the body of substantive laws concerning estate and inheritance rules, criminal and immoral conduct, domestic conduct and marriage rules, servants and masters, dealings with outsiders, land ownership and use, resource management, and defense of the Colony.

A. Estate and Inheritance Rules

Plymouth established in the 1636 laws that it would adopt the inheritance rules of a particular "hold" in Kent County, England: "That Inheritance do descend according to the co[mm]endable custome of Engl. [and] hold of E[as]t Greenw[ich]" (PCR 11: 12). This jurisdiction, like several others in England, had earlier established the rule that a widow should receive a life estate with a one-third share of the lands possessed by her deceased husband during their marriage. This interest is known as a "dower" (Haskins 1965: 19). Plymouth Colony further provided that the widow would receive an absolute interest (not just a life estate) in a one-third share of all the deceased husband's goods and chattels (that is, all his personal property). As stated in the 1636 laws, "[i]f the husband die the wife shal haue a third p[ar]t of his land[s] during her life and a 3[rd] of his good[s] to be at her owne disposeing" (PCR 11: 13).

The inheritance rule for children provided shares going to all surviving children, and rejected the older English rule of primogeniture, in which only the eldest son would inherit the estate. Instead, the eldest son received a double share, and the others received equal shares of the remainder (Haskins 1969a: 130-31). The earliest evidence of this practice in the Colony appears in a 1627 letter from Isaak de Rasieres, Acting-Secretary of New Netherland, who visited Plymouth Colony in that year. He observed of the Plymouth colonists that "'in inheritances they place all the children in one degree, only the eldest son has an acknowledgement for his seniority of birth'" (Haskins 1969b: 206, quoting 1627 letter from Rasieres to Samuel Bloomart, a director of the East India Company).

A freeman could make a will in writing in which he directed how he wished to have his lands and goods divided up upon his death. A will could be made orally as well, but only as to the division of lands, and only if the person making the will was of sound mind and memory and his statements were witnessed by two or more freemen. Such an oral will would be recorded officially based upon the testimony of the witnesses (PCR 11: 46). Upon a freeman's death, any will was to be presented and proved to the Governor and the Court of Assistants within one month of the death. In the early years of the Colony, land could not be conveyed by inheritance, and was instead held communally (Langdon 1966: 29). This was superseded when the issue of land reserves for the original Purchasers was resolved. See Section II.F, below, on land regulation.

A full probate inventory of the deceased's "good[s] [and] chattels" was required to be conducted and presented with this proof of the will. If the deceased had no will, the probate alone was required to be presented within one month. When a single person with no near kin died, the Governor would appoint someone to conduct the probate inventory. Anyone conducting and presenting a probate inventory to the Governor and Court of Assistants was required to swear an oath as to its truthfulness. While this requirement of an oath created the potential for criminal charges of false statements on probate inventories, I have not yet seen a record of such a charge brought in the Plymouth courts. The Governor and Court of Assistants would not issue letters of administration (which provide for the final settlement of the estate) until such probate inventories and any will were presented and accepted (PCR 11: 15).

It is not clear from the record of Plymouth laws what system was used for assessing values for each item of land or personal property listed on probates. I have not yet located in the records an indication of the rate of estate tax that was typically charged. There was a system for assessing "rates" to be applied to each household's land and personal property on a yearly basis by each town. As stated in a 1642 law:

That in every Towne there be three or foure men or more chosen . . . to rate all the Inhabitant[s] of their Towne according to their estates or faculties that is according to goods lands improoued faculties and [per]sonall abillities, whether the rate be for any of the townes in [par]ticular of for ge[ner]all charges. And by ymprooued land[s] are vnderstood meddow land plowed land [and] howed lands. (PCR 11: 42).

Various questions could arise concerning the interplay of written wills and the one-third dower interest for surviving widows. For example, if a deceased freemen had left a written will that specifically granted portions of his personal property to his wife upon his death, would that personal property be included as part of the widow's one-third dower share or separate from it? The logical, legal answer must have been that the Court would treat the specific bequest as separate from the widow's one-third share in personalty. This results from the fact that the law created the widow's one-third share in personalty as an absolute right (PCR 11: 13), in contrast to the one-third share in the deceased's lands, which was granted only for the term of a life estate. Such an absolute right in a one-third share of the personalty would be inappropriately diluted if it were treated as overlapping with any other specific bequest of personalty in the will.

In 1633, a law was passed to address how debts were to be paid from the proceeds of an estate after someone died. Typically, the survivors of the deceased would endeavor to pay off any outstanding debts through the proceeds of goods and personal property of the deceased. In addition, if a person died with debts and had purchased lands that were not needed "for the subsistence of him or herselfe [and] family," the creditors could demand that such lands be sold and the proceeds used to pay the existing debts. Creditors could raise such debt issues directly with the surviving family, or they could appear in Court and raise objections when the family submitted any probate or will for approval of the Court. However, there was "no seisure being allowed the creditors" to demand the sale of land if that land was needed for the subsistence of the surviving family members (PCR 11: 15).

B. Criminal and Immoral Conduct

This section addresses criminal and immoral conduct, including capital offenses, lesser crimes, sex offenses and religious misconduct. Starting with the most severe form of crimes, the 1636 compilation of laws listed the following capital offenses, for which one could be punished by death (PCR 11: 12):

• "Treason or Rebellion against the [per]son of the King State or Co[mmon]wealth either of England or these Colonies."
  
• "Willfull Murder."
  
• "Solemn Compaction or conversing w[ith] the divell by way of witchcraft conjura[cion] or the like."
  
• "Willfull [and] purposed burning of ships [and] howses."
  
• "Sodomy, rapes, buggery."
  
• "Adultery to be punished."

The legislation of the General Court also provided for penalties to be imposed on those convicted of failure to uphold civic or moral duties, failure to attend worship, abuse of alcohol or tobacco, carnal copulation, libel, trespass or damage to property of another, damage to cattle enclosures, gambling, theft, or wearing disguises. The spectrum of punishment that could be imposed for this array of crimes included prison, stocks, whipping, and fines (called "amercements"). Each town had the duty of constructing and maintaining stocks, whipping posts and jail houses (PCR 11: Part I).

Historian Edwin Powers reviewed the Colony's court records and found no record of an individual being executed for "Treason or rebellion." When a "Captain North" was convicted of seditious and mutinous speeches in 1641, he was sentenced to banishment (PCR 2: 70). This was notably lenient, in view of his stated promise of dealing with the officials of the Colony by making "garters of their gutts" (PCR 2: 70; Parnes 1971: 36). Powers found a number of murder trials, with most ending in acquittals. Only a few persons were accused of engaging in witchcraft, with only one trial, which ended in acquittal (PCR 5: 223-24), and no executions. A few persons were charged with arson, but no executions resulted (Powers 1966: 300, 458).

Powers' review of the Colony records and William Bradford's history, entitled Of Plymouth Plantation, showed at least 11 men and one woman executed for murder. John Billington was the first to be hung in the Colony, executed in 1630. He was charged, tried and found guilty of murdering a neighbor by having "shote him with a gune, wherof he dyed" (Powers 1966: 301). This first execution by the Plymouth Colony government raised the issue of whether that government had the authority to execute someone for violating laws established by a government which lacked a royal charter. Invoking an array of sources for such authority, including the Biblical mandate for a severe response to murder, the Plymouth officers proceeded with the execution (Powers 1966: 301).

Others executed for murder in Plymouth included (Powers 1966: 303):

• Arthur Preach and two runaway servants were hanged for robbery and murder of an Indian youth (1638) (PCR 1: 96-97);
  
• Alice Bishope, hanged for "felonious murther by her commited, upon Martha Clark, her owne child, the frute of her owne body" (1648) (PCR 2: 134);
  
• Three Indians were executed, one by shooting and two by hanging, for murder of another Indian who had been an informant to the English concerning the plans for King Philip's War (1675) (PCR 5: 167-68);
  
• Three other Indians were hanged, and a fourth was beheaded, for murdering an English woman and for their involvement in three other murders (1676) (PCR 5: 205-06).
  

There was only one recorded execution for "Sodomy, rapes, and buggery." Thomas Graunger, a "servant to an honest man of Duxbury," was only 16 or 17 years old when hanged in 1642 (Powers 1966: 299-300). He attained infamy, not only for an extreme case of bestiality, but also as the only person put to death in the Colony for criminal conduct other than murder. Bradford's account of Graunger's execution again showed an example of the Colony's invocation of Biblical dictates as part of their legal authority for imposing punishments: "Horrible it is to mention, but the truth of the historie requires it. . . . first the mare, and then the cowe, and the rest of the lesser catle, were kild before his face, according to the law, Levit: 20:15. and he him selfe was executed" (Bradford's History Of Plymouth: 432-35; Powers 1966: 303; PCR 2: 44).

It is notable that the Colony listed sex offenses as capital offenses under the law, and yet in practice did not treat such conduct as warranting a death sentence. While there were a number of trials for sex offenses, only the bestiality of the infamous Mr. Graunger resulted in execution. Powers notes that even the case of an Indian man who raped an English girl in 1682 was treated with a leniency that did not match the category of a "capital" offense. The Court ruled that "although in an ordinary consideration hee deserved death, yett considering hee was but an Indian, and therefore in an incapasity to know the horibleness of the wickednes of this abominable act . . . he was centanced by the Court to be severly whipt att the post and sent out of country" (PCR 6: 98; Powers 1966: 303).

To obtain a measure of the relative frequency of different criminal charges and the types of punishments imposed, Powers reviewed the General Court and Court of Assistants records set out in the Plymouth Colony Records (PCR) for a ten-year period, from April 1, 1633 through 1643. The following is a summary of his findings, listed by category of crime and in descending order of the number of convictions for those crimes:

• Fornication: 19 convictions, resulting in 2 fines, 9 whippings, 1 bond for good behavior, and 9 stocks.
  
• Drunkenness: 18 convictions, with 11 fines, 2 whippings and 2 stocks.
  
• Lewd, lascivious, or wanton behavior: 16 convictions, resulting in 10 whippings, 2 stocks, 2 banishments, 2 burnings on the shoulder, and 2 "other" punishments. Other penalties included: to be whipped and forced to wear an AD for adultery, or to have to give a public account of one's way of living.
  
• Liquor law violations: 13 convictions, resulting in 13 fines.
  
• Vilifying authorities: 12 convictions, resulting in 8 fines, 2 bonds for good behavior, 1 stocks, and 1 banishment.
  
• Assault and battery: 9 convictions, resulting in 9 fines.
  
• Tobacco smoking: 8 convictions, resulting in 6 fines.
  
• Stealing: 7 convictions, resulting in 4 whippings, 1 bond for good behavior, 1 restitution (repayment), and 2 burnings on the shoulder.
  
• Swearing: 6 convictions, resulting in 2 admonitions, 1 stocks, and 2 prison sentences.
  
• Extortion: 6 convictions, resulting in 3 fines and 2 restitutions.
  
• Lord's Day violations: 6 convictions, resulting in 2 fines, 2 whippings, 1 bond for good behavior, 1 stocks, and 1 banishment.
  
• Murder: 3 convictions, resulting in 3 executions (Powers 1966: 406).
  

Powers also counted 68 convictions for crimes he categorized as "Miscellaneous." Among these, the most prominent in number was "keeping unringed swine" (letting them run loose), with 21 convictions, resulting no doubt in the imposition of fines. Among the other crimes Powers included in this miscellaneous category were a number of infrequent transgressions, such as: "cruelty to servant (1); living alone (1); runaway servant (1); . . . selling powder to Indians (1); scoffing at religion (1); sodomy (death penalty [of Graunger]); adultery (1); neglecting duty about the ferry (1); calling a man a 'rogue' (1)" (Powers 1966: 406). These 68 convictions resulted in 46 fines, 5 whippings, 3 restitutions, 1 admonition, 3 stocks, 1 prison sentence, 2 banishments, 1 death sentence, and 3 "other" penalties.

D.C. Parnes conducted a similar analysis of the court records compiled in the Plymouth Colony Records for the decade of 1660-1669. His findings are similar to those of Powers in regard to the relative prominence of some forms of criminal convictions. The leading crime in the 1660's, however, was being or aiding a Quaker, with 37 convictions (34 of which occurred in 1660 alone) (Parnes 1971: 53). He further found: 35 convictions for drunkenness; 35 convictions for fornication; 19 of assault; 16 of lying; 15 of lascivious carriage; 14 for profaning the Lord's day; 12 of refusal to take oath; 12 of cursing and swearing; 11 of breach of the peace; 11 for sales of guns or liquor to Indians; 11 of theft; 9 for unlawfully killing cows, hogs, or horses; 8 for trespass; 7 for failure to assist a Marshall; 7 for affronting an Officer; 6 for refusing court or jury duty; and 45 for other miscellaneous crimes (Parnes 1971: 53).

The results of these limited samplings of the Court records are interesting. Powers found a total of 191 convictions. Of these, 35 concerned fornication or lewd, lascivious behavior, 31 concerned drunkenness or liquor violations. These combined categories of "immoral" behavior account for 35 percent of all of the convictions over this ten-year period. In contrast, stealing and extortion account for only 7 percent, and murder, assault and battery account for only 6 percent. Swearing and Lord's Day violations account for 6 percent. In reviewing similar samplings of Court records for the Massachusetts Bay Colony, Powers concluded that the pattern of convictions in the Plymouth Colony "did not greatly differ" from that of the larger Massachusetts Bay (Powers 1966: 402). Parnes found that the total number of convictions climbed to 310 for the decade of the 1660's, during which a higher population existed in the Colony. However, the relative frequency of each type of criminal conviction was roughly the same (when one ignores the Quaker convictions and miscellaneous crimes) (Parnes 1971: 37-38, 53).

As one observes from these samples, drunkenness was a frequent concern of the Colony government. The law dictated that "such as either drinke drunke in their [per]sons or suffer any to drinke drunke in their howses" would be charged with misdemeanors and "punished or fined or both" (PCR 11: 17). Inns, "victualling howses" and taverns were recognized as useful facilities for people who were travelling, but it was forbidden for locals to frequent them: "none shall diett in Inns and Alehouses nor haunt them which are in the townes they live in nor make them the ordinary place of theire abode" (PCR 11: 30, 113). Tavern keepers and inn keepers were similarly forbidden by law in 1646 to permit "any townsmen to stay drinking in his house above an houre att one time" (PCR 11: 113; Powers 1966: 376). Similarly, a tavern keeper should serve no child or servant (PCR 11: 17).

The Colony's legislative acts concerning the proper observance of religious duties and morality increased over time. From the settling of the Colony until decades later, transgressions were handled largely on a case-by-case basis by the courts. An early example of religious misconduct was the charge in 1641 that Mark Mendlowe harvested his eel pots on the Sabbath. He was not punished because he was able to prove he did so out of "necessytie" (PCR 2: 4; Langdon 1966: 61). Similarly, Arthur Howland was presented to the Court in 1651 on the charge of "not frequenting the Publicke asemblyes on the Lord's daies" (PCR 2: 174).

Transgressions of proper religious and moral behavior prompted the General Court to pass legislation in 1650 which expressly declared it a crime to slander a church or minister. Similarly, those who profaned the Sabbath were susceptible to a fine of ten shillings or of whipping as punishment. Church attendance became mandatory by legislation (PCR 11: 57-58; Langdon 1966: 67). With the 1685 codification of laws, an even more extensive compilation of laws were set out concerning the details of religious and moral conduct (PCR 11: Part III).

C. Domestic Conduct and Marriage Rules

The Plymouth Colony is renowned for creating an innovative form of civil marriage. This form of marriage thus replaced a reliance on ecclesiastical authorities for handling the approval and administration of marriages. Parental consent was required for a civil marriage. If consent of the parents could not be obtained, the prospective spouses could seek consent from the Governor or an Assistant to whom they were known and who would be responsible for ensuring that the marriage was a proper and wise undertaking. The procedures for such a civil marriage included public notice, either by announcement at public meetings, or by a written notice by the Magistrate which would be posted for 15 days before the marriage could be finalized (or "solemnized") (PCR 11: 13, 29).

A variety of laws were passed requiring that each household be maintained in certain ways. For example, specific rules on house construction were issued in 1627, stating that "no dwelling house was to be couered with any kind of thatche, as straw, reed, [etc.] but with either bord, or pale [and] the like; to wit: of all that were to be new built in the towne" (PCR 11: 4). Similarly, each household was required by law to maintain a ladder on the property, to be readily available for use in fighting house fires (PCR 11: 26). Each household was also required to participate in the defense of the Colony, and would have certain allotments of arms and munitions assigned to it.

D. Servants and Masters

Many freemen had servants and apprentices under their control, typically based on indenture agreements between master and servant. Such indentures specified the time period of the service and the type of compensation to be paid. The time periods of such indentures ranged from just one or two years to several years. A number of court records over the years reflect a concern with apprentices or servants running away from their masters, the harboring of runaway servants, and even charges concerning servants courting without a master's consent. In addition, there were a number of civil disputes between servants and masters concerning fulfillment of the covenants of the indenture agreements. For example, some servants complained that they were being poorly treated and not compensated in accordance with their indenture agreements. Similarly, apprentices complained of the master's failure to deliver the expected training in a trade (PCR 8: passim).

The laws provided a fair degree of detail on how servants were to be treated when they had completed the term of their indenture. One law specified that a servant fulfilling his indenture, or buying out his indenture, would not be permitted to establish his own household unless "he haue beene a house keeper or master of a famyly or meete [and] fitt to bee so" (PCR 11: 33). Freed servants were to be given five acres of new land upon completing their indenture, but neither a freed servant nor any single adult were permitted to "keep howse" for themselves "till such time as hee or they be competently provided of Armes [and] muni[cion] according to the order of the Colonyes" (PCR 11: 17). Apparently some abuses of the law occurred in regard to the granting of five acres of new land to servants. The General Court found it fitting to specify that, if a master had agreed to give a servant land from his own holdings, the master must indeed do so from his own land holdings, and he could not use the Government's potential five-acre land grants to satisfy that obligation (PCR 11: 18).

E. Dealings with Outsiders

The Massachusetts Bay and Plymouth colonists reacted fairly extremely to incoming Quakers during the 17th century. Massachusetts Bay administered warnings, whippings, banishment and then ultimately hung four of the Quakers, including a woman, in reaction to the perceived threat of their religious beliefs and practices. The Plymouth colonists applied fines, whippings and banishment, but refrained from hanging any Quakers (Langdon 1966: 69; Powers 1966: 330). The other outsiders of primary concern were the neighboring Indians, and colonists were forbidden from conducting trade with them, providing them with Arms or munitions, or selling them tobacco or alcohol (e.g., PCR 11: 33). Colonists were similarly prohibited from the "purchase rent or hyre [of] any lands herbage wood or tymber of any of the Natiues" without prior consent of the Assistants (PCR 11: 41).

Some laws addressed the concerns of "nonfreemen" who resided in the Colony. Persons who were not freemen, but who were permitted to live within the Colony, did not possess the right to vote or hold offices in the colony government. Nonetheless, they were required to pay the same rates of taxation as freemen, and were given the ability to present any complaints they might have to the General Court (PCR 11: 11; Langdon 1966: 85).

F. Land Ownership and Land Use

Another of the Plymouth Colony's notable innovations was a detailed accounting and recording system for all sales, transfers, encumbrances and conveyances of houses and lands. By 1636, the laws required that "all sales exchanges gift[s] morgages leases or other Conveyanc[s] of howses [and] land[s] the sale to be acknowledged before the Gov[ernor] or any one of the Assistants [and] co[mm]itted to publick Record and the fees payd" (PCR 11: 12; PCR 11: 216). This established a system for each deed to receive acknowledgement by a government official and then be recorded in its entirety in an official record (Haskins 1969a: 132).

In the 1620's and 1630's, land within the Colony was divided and allocated by the Court of Assistants. For example, a 1627 law set forth a specific system of land allocations, reserving previous claims of original settlers, providing 20 acre plots for new parcels, establishing a general procedure for surveying the land before allocation into those new parcels, to be followed by allocation through a lottery assignment (PCR 11: 4-5; Langdon 1966: 31). The general usefulness of each parcel of land assigned was reinforced by laws requiring that pathways and access to waterways be kept open for all to use (e.g., PCR 11: 5). Nonetheless, these allocation procedures eventually led to frictions among the original settlers and incoming freemen.

A primary source of this friction was the fact that the majority of persons elected each year to sit on the Court of Assistants were "Purchasers" -- the individuals who bought out the Colony's share of the original joint-stock company in 1627 (Langdon 1966: 40). Early laws for land allocations favored the Purchasers by reserving tracts of land for them (e.g., PCR 11: 16). In March of 1639/1640, a Grand Enquest (consisting of freemen) issued a presentment in which they demanded that the Governor and Assistants show what authority they possessed to continue controlling this distribution of lands to townships and persons and to provide an accounting of how much land they were reserving for the Purchasers (PCR 1: 119; Langdon 1966: 41). This dispute was settled in 1640, with the Purchasers agreeing they would take a certain number of tracts of land for themselves and turn the Bradford patent over to the Colony so that all remaining lands could be distributed freely (PCR 2: 10-11; PCR 11: 34-35; Langdon 1966: 41).

Some preferential treatment in land allocations persisted longer. In 1636, the General Court voted that children born in the Colony should receive priority in land allocations over those persons newly arriving from England or other colonies. This preference was exercised in 1661, when the General Court gave those persons born to the first settlers in the Colony the ability to purchase land from neighboring Indians. Similarly, those servants who were owed land through the terms of their covenant of service, and who typically had been living in the Colony since 1640, were permitted to buy land along the Sakonnet River (PCR 11: 16; PCR 3: 215-16; Langdon 1966: 46).

A system for handling allocations of land parcels within Plymouth Town was also instituted. A number of parcels that were originally allocated came in time to be vacant due to the departure of settlers from Plymouth Town to other areas within the Colony. As a result, entirely new allocations were undertaken (PCR 11: 14). A similar system was instituted for any parcels vacated in the Colony to return to the Government for reallocation as it saw fit (PCR 11: 18).

G. Resource Management

A variety of laws were passed over the years by the General Court concerning the management of natural resources in the Colony. Of repeated and particular concern was the harvesting of timber, trade in timber, and prevention of uncontrolled forest fires (e.g., PCR 11: 28). While land was divided and allocated out among the settlers, early laws specified that "ffowling, fishing and Hunting be free" and uninhibited (PCR 11: 5). Similarly, the laws required that all pathways, waterways, and shoreline access to waterways be kept open and that they should not be blocked or monopolized by particular land holders.

Control of theions, with 11 fines, 2 whippings and 2 stocks.