1641. apparently with unanimous consent, established one hundred fundamental laws, which were called The December. Body of Liberties. In the Act for their adoption, however, the wariness of past years was not abandoned. "Because our duty and desire is to do nothing vember 5, 1639) that "the Governor [Winthrop], Deputy-Governor [Dudley], Treasurer [Bellingham], and Mr. Stoughton, or any three of them, with two or more of the Deputies of Boston, Charlestown, or Roxbury, shall peruse all those models which have been, or shall be, further presented to this Court, or themselves, concerning a form of government and laws to be established, and shall draw them up into one body (altering, adding, or omitting what they shall think fit), and shall take order that the same shall be copied out and sent to the several towns, that the elders of the churches and the freemen may consider of them against the next General Court." (Ibid., 279.) And the case must have seemed to be getting well-nigh desperate, when, six months later yet (May 13, 1640), in consideration that "a breviate of laws was formerly sent forth to be considered by the elders of the churches and other freemen of this Commonwealth," it was "desired that they would endeavor to ripen their thoughts and counsels about the same by the General Court in the next eighth month." (Ibid., 292.) "The next eighth month" accomplished no more than its predecessors. The Court met, but the question was somehow kept out of notice. It came to be differently treated, when, on the one hand, from several years' experience, the characteristics of a useful jurisprudence had at length disclosed themselves, and, on the other, Parliament was crowding on the King, and in Massachusetts the fear of impending hostility from England was all dying away. There had probably grown up a sincere disposition among the guides of public action to meet the popular wish for a legal code, when (June 2, 1641), in the place of an interminable consultation of the towns, the service of a learned lawyer was enlisted, and “the Governor [Bellingham] was appointed to peruse the laws, and take notice of what may be fit to be repealed, what to be rectified, what to stand, and make return to the next General Court." (Ibid., 320.) And when, sufficient time having been allowed for this examination, "the Governor and Mr. Hathorne were desired [October 7] to speak to Mr. Ward for a copy of the Liberties and of the Capital Laws to be transcribed and sent to the several towns" (Ibid., 341), the order may be held to indicate a general desire in high quarters that the Deputies might next come together prepared for definitive action in favor of his code. The session of the General Court which adopted this vote was continued by adjournments more than two months. And that the project of a Statute-Book, and of Ward's in particular, was still gaining favor, may be inferred from the passage of an order (December 10) by which "Mr. Deputy Endicott, Mr. Downing, and Mr. Hathorne are authorized to get nineteen copies of the laws, liberties, and the forms of oaths transcribed and subscribed by their several hands, and none to be authentic but such as they subscribe, and to be paid for by the constable of each town, ten shillings apiece for each copy, and to be prepared within six weeks." (Ibid., 344.) suddenly which fundamentally concerns us, we decree that these Rights and Liberties be audibly read and deliberately weighed in every General Court that shall be held within three years next ensuing; and such of them as shall not be altered or repealed, they shall stand At length, in a session which "continued three weeks," (in December,) the General Court "established the hundred laws which were called The Body of Liberties. They..... had been revised and altered by the Court, and sent forth into every town to be further considered of, and now again in this Court they were revised, amended, and presented." (Winthrop, II. 55.) This extremely important document was printed for the first time in the Collections of the Massachusetts Historical Society (XXVIII. 191 et seq.) from a manuscript copy, which Mr. Francis Calley Gray found, forty years ago, in the Boston Athenæum. The manuscript was bound up with a volume of the Colony Laws published in 1672, which had belonged to Governor Hutchinson's grandfather. Mr. Gray has illustrated the work in a learned and judicious essay. It is proper to add, that the abortive treatise of Cotton, mentioned above, was printed in England, in 1641, in a small quarto volume of seventeen pages, with the unauthorized and incongruous title, "An Abstract of the Laws of New England as they are now established." Copies of this edition are not very rare. Another edition (London, 1655) was, according to its title-page, "published after his [Cotton's] death, by William Aspinwall." Aspinwall's edition does not adopt the error in the title of its predecessor, but calls the book "An Abstract of Laws and Government ..... collected and digested into the ensuing Method by that godly, grave, and judicious divine, Mr. John Cotton of Boston in New 3 VOL. II. England, in his Lifetime, and presented to the General Court of Massachusetts." The truth is, it never got further than to be presented. It never had any authority. Nor is there any good foundation for Hutchinson's remark (Collections, 161), that, when the freemen "compiled their laws, they made this abstract their plan in general." The provisions of the "Body of Liberties," adopted five years after Cotton presented his compend, have no such resemblance to it as would justify the calling of one "an Abstract," or even the basis, of the other. ..... to Cotton endeavored to furnish Biblical authority for most of the provisions of his code. For instance, he says, "The Governor hath power send out warrants for the calling of the General Court;" and he proves it from Joshua xxiv. 1: "And Joshua gathered all the tribes of Israel to Shechem." And again, "Every Court shall have ..... a Secretary to enroll all the acts of the Court;" for which the authority is Jeremiah xxxvi. 10: “Then read Baruch in the book the words of Jeremiah, in the house of the Lord, in the chamber of Gemariah, the son of Shaphan the scribe, in the higher court." The treatise is distributed under ten titles; namely: "Of Magistrates; of the Free Burgesses and Free Inhabitants; of the Protection and Provision of the Country; of the Right of Inheritance; of Commerce; of Trespasses; of [Capital] Crimes; of other Crimes, less Heinous; of the Trial of Causes; of Causes Criminal between our People and Foreign Nations." so ratified that no man shall infringe them without due punishment."1 "They had been composed by Mr. Nathaniel Ward, sometime pastor of the church of Ipswich. He had been a minister in England, and formerly a student and practiser in the courts of the Common Law."2 His acute and vigorous mind was well stored with juridical learning, and his work now produced will compare favorably with other works of its class, in any age. Under ninetyeight heads or propositions,-making, with the preamble and close, a hundred sections, it first lays down those fundamental principles relating to the sacredness of life, liberty, property, and reputation, which are the special subject-matter of a Bill of Rights. It then goes on to prescribe general rules of judicial proceeding; to define the privileges and duties of freemen; to provide for justice to women, children, servants, and foreigners, and for gentle treatment of the brute creation; to declare capital offences, twelve in number; and to describe the liberties and prerogatives of the churches. The first paragraph of the code is as follows: "No man's life shall be taken away; no man's honor or good name shall be stained; no man's person shall be arrested, restrained, banished, dismembered, nor anyways punished; no man shall be deprived of his wife or children; no man's goods or estate shall be taken away, nor any way endangered, under color of law, or countenance of authority; unless it be by virtue or equity of some express law of the country warranting the same, established by the General Court and sufficiently published, or, in case of the defect of the law in any particular case, by the word of God;1—and in capital cases, or in cases concerning dismembering or banishment, according to that word to be judged by the General Court.” The religious character of the people, and their habit of interpreting Scripture as a universal statute-book, naturally prompted this adoption of it as the ultimate rule of their administration. There is no higher, and no other just conception of human law, than was theirs, when they recognized it as an embodiment of the will -in other words, of the law-of God. So far as human legislation conforms to that standard, in respect to the relations between man and man, it is correct and salutary. So far as it deviates, it is erroneous, and it is unprofitable or oppressive.2 The mistake which had more or less clouded the mind of the Puritan NewEnglander was in his regarding the law of Moses as a declaration of the law of God for all times and places. But he did not embrace this error in its full extent; and considerations quite apart from it inclined him to respect. the Mosaic code. Its spirit of liberty and equality recommended it to his approval. The severity of the English law, which at that time punished with death more than thirty offences, properly inclined him to prefer a system 1 The instrument of voluntary combination in Connecticut, in 1638, implied the same doctrine. (Conn. Rec., I. 21. See Vol. I. 536.) * That admirable person, the late Archdeacon Hare, said many things equally new and true. But it was nothing new when he said, "The business of human laws is, in all things, as closely and faithfully as may be, to express the will of the Supreme Lawgiver." (Sermons preached on Particular Occasions, 211.) 3 Thirty-one kinds of crime were capital in England at the end of Queen Elizabeth's reign. (Sir James Mackintosh, Speech on the Reform of Criminal Law, March 2, 1819, in Hansard, XXXIX. 808; comp. Hale, Pleas of the Crown, 3 et seq.) Afterwards the law grew more cruel. "I hold in my hand a list of those offences which at this moment are capital; in number, two hundred and twenty-three." (Ibid., 809.) so much more humane on the whole. And among various considerations this may not have been esteemed the least weighty, -that an adoption of the Jewish code involved a rejection of that English system of jurisprudence, the admission of which would have entailed long consequences adverse to the cherished hope of selfgovernment. The roots of the Common Law had not then been so disengaged as they now are from the hierarchy and the feudalism of England. Ward was capable of the great business to which he was set. When, superior to bias alike from his early professional studies and from superstitious veneration for the code of Moses, he announced the principle that life, liberty, or property was not to be invaded except by virtue of express law, established by the local authority and sufficiently published, a step was taken than which none could be more important towards creating at once a prosperous and an independent commonwealth. By the charter of the Massachusetts Company the government which it constituted was forbidden to make laws repugnant to the laws of England. Ward's formula gave solemn utterance to the doctrine that, in Massachusetts, English law had no other than this restrictive force, and that within the limit so prescribed she was competent to build up such a system of jurisprudence as her condition and wants should seem to herself to require. As long as that principle was respected in practice, the King could touch no man within her territory. It was almost a Declaration of Independence. In respect to the penalty of death, Ward and his associates had tender scruples, and in the Body of Liberties the laws for inflicting it are sustained by references to Scripture. But such references are made in no other part of the code. Ward had looked up to Cotton as a religious adviser, before they left England. But, with his professional training and his habits of thought, it was |