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1643.

Town Courts, as of Justices' Courts now, was conducted without it. In Connecticut, while trial by jury was practised from the first, the Grand Jury of July 5. Inquest appears to have been a later institution. And the difficulty of bringing trial juries to unite in a verdict where there was so little of definite law for their guid ance, led to the singular provision, that, on a continued failure to agree, after conference with the Court, a majority of the jury should decide the issue, and, if they were equally divided, it should be determined by the sitting Magistrates.3

April 13.

Processes.

There were no professional advocates. A prisoner or suitor might plead his own cause, or a friend might appear in his behalf. The methods of process had a general conformity to those of the Common Law, with which some of the leading men were familiarly acquainted. Issues of debt and account were to be tried by the Court nearest to the defendant's place of residence; "other actions, within that jurisdiction where the cause of action did arise."5 Attachments were to be made by notice left at the defendant's house; and, in his absence, judgment against him was not to be executed till the plaintiff should have given a bond to make indemnity in case of a reversal on appeal. The only ceremony attendant upon an oath was the lifting of the right hand. The English practice of kissing the book was rejected as idolatrous.

1636.

The earliest colonial code of statutes was that of Plymouth." Not framed upon any theory of conformity to the Jewish law, or to the law of England, it consisted of such provisions as on general Plymouth.

1 Conn. Rec., I. 9.

2 Ibid., 91.

3 Ibid., 84.

* See Vol. I. 553. Lechford, 28. Body of Liberties, Art. 26, in Mass.

Nov. 15.

Hist. Coll., XXVIII. 220. Winthrop,
II. 36.

Mass. Rec., I. 169, II. 16, 17.

• Ibid., II. 80.

See Vol. I. 340 et seq., 546 et seq.

principles of jurisprudence, and after sixteen years' local experience, appeared suitable to secure the well-being of the little community. It was digested under about fifty titles. It asserted a right of exemption from all laws "but such as should be made or imposed by consent" of the body of the associates, or their representatives legally assembled. It recognized eight capital offences; namely, "treason or rebellion against the person of the King, State, or Commonwealth either of England or these colonies," wilful murder, witchcraft, arson of ships or houses, adultery, rape, and crimes against nature. Other crimes it made punishable "at the discretion of the Magistrates." It ordained, that offences should be presented by juries of inquest, and "that all trials, whether capital or between man and man," should "be tried by juries according to the precedents of the law of England, as near as might be." It allowed persons not possessing the franchise to be jurymen. It obliged towns to build and maintain roads, stocks, cages for the confinement of prisoners, and whipping-posts. In transfers of real estate, it required acknowledgment before a magistrate, and a public record. Inheritances were to "descend according to the commendable custom of England and hold of East Greenwich." A widow was entitled to the use, during her life, of a third part of her husband's real estate, and to "a third part of his goods, to be at her own disposing." Men and property might be impressed for the public service; the latter, or its use, was to be paid for, and soldiers disabled in war were to be maintained for life at the public charge. A uniform standard of weights and measures was prescribed. Marriages, even without the approval of parents, might be contracted, "with the consent of the Governor or some Assistant, to whom the persons were known." Every resident was to provide himself with certain arms and accoutrements. "None might retail wine, strong water, or beer, either within doors or with

out, except in inns or victualling-houses allowed;" no beer might be charged higher than "two pence the Winchester quart;" and inn-keepers and other householders were made responsible for the sobriety of their inmates. A bounty of "four bushel of corn" was allowed for the killing of a wolf.

1635-1644.

Added to these, a few simple regulations, relating mostly to the distribution of lands and the trespasses of domestic animals, made a body of law sufficient for the present needs of the orderly people of Plymouth.1 With the slow development of new wants and interests, legislation extended slowly in the hands of the Magistrates and Deputies, who were obliged to refer their enactments for confirmation to the whole body of the freemen assembled in General Court. Regulations were made respecting roads, ferries, bridges, alarms, markets and fairs, inns and alehouses, precautions against fire, "the safety of the person of the Governor," the taking and sale of fish, the trespasses of swine, contracts of service, the wages and diet of daylaborers, the burning of woods, the training of troops, the "trading guns and powder with natives," and the 66 great abuse in taking of tobacco in very uncivil manner openly in the town streets and as men passed upon the highways, as also in the fields and as men were at work in the woods and fields, to the neglect of their labors and to the great reproach of the government." To make any motion of marriage to any man's daughter or maid-servant, not having first obtained leave and consent of the parents or master so to do," was made punishable "either by fine, or corporal punishment, or both, at the discretions of the bench and according to the nature of the offence." Idlers were to give satisfaction as to their means of livelihood, or to be disposed of according to "the wisdom of the government." Profane

1 1 Brigham, Compact, &c., 41 - 54.

swearers were to be fined twelve pence, or set in the stocks, or imprisoned, "according to the nature and quality of the person." Towns were empowered to make by-laws, to assess and collect taxes for town expenses, and to apprentice the children of pauper parents. At every meeting of the freemen, or of their Magistrates, of which a record remains, attention was given to the military organization and supplies.1

sachusetts.

In Massachusetts, for more than ten years the administration of justice was without the security either of a Fundamental system of statutes, or of any recognition of the Laws of Mas- authority of the Common Law of the mother Body of country. The law dispensed by the magistrates Liberties. was no other than equity, as its principles and rules existed in their own reason and conscience, instructed by Scripture. The reader is apprised of the solicitude of the people to obtain the safeguard of a written code, and of the considerations which induced the leaders to obstruct their wish.2 This difference led to a long struggle, which, however, was carried on without acrimony, because the defensive party needed no other weapon than a good-natured procrastination, capable of being extended almost at pleasure. At length

1 Brigham, Compact, &c., 54–78. 2 See Vol. I. 442.

3 The process by which on this occasion the public will was obstructed by men who had nothing but the public good at heart, deserves to be related with some detail.

In the first year that Deputies from the towns took their place in the General Court, "John Winthrop and Richard Bellingham, Esq. [March 4, 1635] were desired by the Court to take a view of all orders already made, and to inform the next General Court which of them they judged meet to be altered, abbreviated, repealed, corrected, enlarged, or explained, &c." (Mass.

Rec., I. 137.) The General Court came together, May 6, and, the business remaining undone, "the Governor [Haynes], Deputy-Governor [Bellingham], John Winthrop, and Thomas Dudley, Esq. were deputed by the Court to make a draft of such laws as they should judge needful for the wellordering of this plantation, and to present the same to the Court." (Ibid., 147; comp. Winthrop, I. 160.)

A year passed. Another General Court assembled; and "the Governor [Vane], Deputy-Governor [Winthrop], Thomas Dudley, John Haynes, Richard Bellingham, Esq., Mr. Cotton, Mr. Peter, and Mr. Shepard were en

the time came when the force of the reasons which had prevailed against the measure was abated; and in a session which "continued three weeks," the General Court,

treated [May 25, 1636] to make a draft of laws agreeable to the word of God, which might be the fundamentals of this Commonwealth, and to present the same to the next General Court." (Mass. Rec., I. 174.) Provisionally "the Magistrates and their associates" were to "proceed in the Courts to hear and determine all causes according to the laws now established; and where there is no law, then as near the law of God as they can." The public attention was distracted by the Pequot war and the Antinomian controversy. Haynes was just going away; the young Governor had already enough upon his hands; and others of the commission had no heart for the business. held a ready pen, and loved a various activity. At the time appointed he was all prepared, and "did present a copy of Moses his judicials, compiled in an exact method, which were taken into further consideration till the next General Court." (Winthrop, I. 202.) It was probably easy for the quietists to persuade the Court that it would be scarcely decorous for them to act when one only of their committee had given his advice.

Cotton

Two years had followed since their last action, and still the freemen in General Court saw the Sisyphian stone lying at the bottom of the hill. Patient, but tenacious of their purpose, they tried the virtue of a more formal method (March 12, 1638), and "ordered that the freemen of every town (or some part thereof chosen by the rest) within this jurisdiction shall assemble together in their several towns, and collect the heads of such necessary and fundamental laws as may be suitable to the times and places where God by his providence hath cast us, and the heads of such

laws to deliver in writing to the Governor for the time being before the 5th day of the 4th month, called June, next, to the intent that the same Governor, together with the rest of the Standing Council, and Richard Bellingham, Esq., Mr. Bulkley, Mr. Phillips, Mr. Peter, and Mr. Shepard, elders of several churches, Mr. Nathaniel Ward, Mr. William Spencer, and Mr. William Hathorne, or the major part of them, may, upon the survey of such heads of laws, make a compendious abridgment of the same by the General Court in autumn next, adding yet to the same or detracting therefrom what in their wisdoms shall seem meet, so that, the whole work being perfected to the best of their skill, it may be presented to the General Court for confirmation or rejection, as the Court shall adjudge." (Mass. Rec., I. 222.)

Fifteen months came and went, but "most of the magistrates and some of the elders were not forward in the matter" (Winthrop, I. 322); and the General Court, vainly indulging the thought that a beginning, at least, might be made, was fain to order (June 6, 1639) "that the Marshal shall give notice to the Committee about the body of laws, to send unto the next General Court such drafts of laws as they had prepared, for the Court to take order about them what to settle." (Mass. Rec., I. 262.)

Still the coveted object did but mock their hopes with the show of having been approached. The tactics of delay were inexhaustible. Some "drafts of laws" indeed came in (two only, as far as we know,- Cotton's and Ward's); but the best that their friends could get done for them was an order (No

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