wich in the county of Kent, in free and common soccage and not in capite or by knight-service, reserving in full of all other duties, demands and services, one fifth of all the ores of gold and silver. This reservation amounted to nothing, so that in fact, the grant constituted what we now understand by an absolute estate in fee simple for allegiance only. This was the parent stock of all the grants in New-England. We shall soon see how the puritans understood, or affected to understand, this tenure by free and common soccage, and how they moulded it to their own views.

The fact here furnished is among the most important in our civil and political history. All vassalage was excluded. Every man became the absolute proprietor and lord of his own fee. Under God, it was the fostering nurse of that spirit of independence, that self respect, that consciousness of possessing all the rights that belong to a man, equal to the rights of any other man, and that rising of indignation in the bosom at every thing like oppression, by which the yeomanry of this country are so peculiarly distinguished. It is the parent also of our system of general education, for these peers or equals claimed an equal share in its advantages for themselves and their children.

It is impossible to say with much precision what a different impress of character, a different tenure and distribution of landed property might have communicated to the people, that spread themselves over the United States; but no one can doubt, that our destiny would have been less cheering to the friends of civil and religious liberty. We might not have been, as we now are, an example to the world of the peaceful enjoyment of equal rights, or the teachers to mankind of the difficult lesson of self government.

So utterly opposed were our puritan ancestors to the feudal burdens, as if to make certainty more

sure, in 1641, the great and general court of Massachusetts ordered and declared that all lands and heritages shall be free from all fines and licenses upon alienations, and from all heriots, wardships, liveries, primer seisin, year and day waste, escheats and forfeitures upon the death of parents or ancestors, natural, unnatural, casual or judicial, and that forever."

No records remain to inform us by what rules, in the first years of the colonies of New-Plymouth and Massachusetts, the estates of persons deceased were distributed, but there is no reason to doubt that the governor and assistants in both colonies, and sometimes the whole general court acted as a court of Probate, and distributed estates, not according to any uniform rule established among themselves, or by any rules established in England. What strikes us with amazement is, that in the first dawnings of their legislation they break down all the leading distinctions prevailing in the mother country, and of which they cannot be ignorant, between real and personal estate, and place land very much upon the same footing with goods. When their county courts were established, the probate jurisdiction was given to them, with an appeal to the court of assistants. Distribution was made according to their views of the wants and merits of the family. The whole estate, both real and personal, was sometimes assigned to the widow or the administrator, or some relation who would undertake to support the widow and provide for the children. Lands were made equally liable with goods for all debts, giving no preference to bond or judgment debts over those by simple contract, and making no distinction in favor of those debts, where the ancestor by seal had bound his heir. When the estate was insolvent, application was made to the general court, who took measures to ascertain the

estate and the debts, and to have them satisfied in a ratable proportion. Both real and personal property was set off to creditors by appraisement.

Now nothing could be more inconsistent with English law, than these proceedings of the Puritans, who have been said, and I think too unguardedly, to have brought with them the laws of England.

Nothing could be more loose and informal than their probate proceedings. The same looseness also prevailed in their conveyances of land; for by a law of the Massachusetts Colony, in 1651, which was twenty years after their settlement, we find the legislature enacting, that no deed of land, intending to convey an estate of inheritance, shall be valid for that purpose, unless the word heirs is used; providing, however, that this law should not operate against former conveyances.

The people of both Colonies grew dissatisfied with the wide discretion exercised by their county courts, in disposing of the estates of persons deceased, and called for some more uniform rule. The colony of Plymouth, somewhere between the years 1633 and 1636, established their law of descent. They recognize the free tenure of East Greenwich, in the county of Kent, as that by which they held their lands, and they adopt the custom of gavelkind, that is, a descent to the males in exclusion of females, as if that were the general quality of free and common soccage, instead of primogeniture; with a proviso, however, that the eldest son shall have a double portion. This they do out of regard to the law of Moses, referring to Deuteronomy, xxi. 17. The personal estate, after bringing up small children, and setting aside a sum for the decrepit and helpless, the payment of debts and funeral charges, was to be equally divided among all the children, saving to the eldest son a double portion, unless the lands

assigned him should amount to a double portion of the whole estate.

It has been brought as a reproach against the Plymouth colony, that they gave to the daughters no share in the real estate. This reproach is unjust, and comes from those who are not sufficiently acquainted with their legislation. They had a very prompt and effectual method of providing for them. Their county courts were authorized to apportion the daughters, as should be just and reasonable, out of the estate of the heir or heirs male, and to issue execution therefor. Thus did this pious, kind hearted and chivalrous people satisfy their own views of justice; pay due deference, as they supposed, to the law of their tenure and the still higher authority, in their estimation, of the laws of Israel.

About 1641, her younger but more powerful, as well as more stern and arrogant sister, the Colony of Massachusetts, began to approach the subject of distribution by legislative enactments. The county courts of the jurisdiction where the intestate had his last residence' were authorized to assign to the widow such part of the estate as they should judge just and reasonable, and to assign to the children and other heirs their several parts and portions, providing that the eldest son shall have a double portion, and where there were no sons, the daughters to inherit as coparceners, unless the court, upon just cause alleged, should otherwise determine. They had before, in their fundamentals, laid down the general rule in the following words: "Estates shall descend to the next of kin according to the law of God."

We see here that the discretion of the court must, in a considerable degree, have constituted the law of the land; but real and personal estate were placed under the same rules of distribution, and the equal rights of all the children in both

species of property acknowledged, with the exception of a double portion to the eldest son. From time to time the laws assume a more definite character, as the exigency of the people required. It is impossible, however, in many cases to fix the dates of their various enactments. For in the several revisions of the laws, both of Plymouth and Massachusetts, the old laws were brought forward and incorporated with alterations into the new, without their original dates, or with such confusion of dates, as to leave it very much a matter of conjecture.

The committee of the legislature of Massachusetts, appointed in 1812, to collect and publish the laws of the colony and province, which had become scarce and difficult to be found, were not able to remedy this inconvenience. It is very much to be regretted, also, that their authority did not extend to the colony laws of Plymouth. Considering that Plymouth, before she was incorporated with Massachusetts by the province charter of William and Mary, in 1691, had been a colony for eighty years, equally independent, wise and peculiar in its legislation; that she brought to that province a most interesting and valuable territory, then divided into three counties and twenty towns, with a population estimated at thirteen thousand souls, it is somewhat surprising that her laws should not have been thought worthy of being collected and published. As matter for history they are surely as interesting, and have as much bearing on land titles within the territory to which they applied, and would be as explanatory of subsequent and existing laws, as the colony laws of Massachusetts. It seems to me that this strange neglect can be accounted for only upon the entertained belief that those laws did not exist, or could not be found. Hutchinson, in his history, had said that Plymouth had never