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. 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.)

1 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.)

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 gov ernment 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

impossible that he should have much admiration for the Teacher of Boston as a maker of laws and constitutions; and, though an earlier scheme had been fortified by that eminent person with Scriptural authorities, Ward does not appear to have paid the slightest regard to it in preparing his own. Even in respect to capital crimes, he did not adopt the whole code of Moses; he did not make the striking or reviling of parents, or the breaking of the Sabbath, punishable with death. That penalty was imposed for only ten offences. These were, idolatry; witchcraft; blasphemy, when "direct, express, presumptuous, or high-handed;" homicide, whether committed in malice or in passion; adultery; two other crimes of lust;1 man-stealing; false witness, "of purpose to take any man's life;" and treason against the Commonwealth.'

Ward's laws of inheritance and of servitude borrowed principles from the Law of Moses. The oldest son of a parent dying intestate was to have "a double portion of his whole estate, real and personal, unless the General Court, upon just cause alleged, should judge otherwise." 3 Servants, of whom there were a considerable number, bound by indentures, if they fled from a cruel master, were to be "protected and sustained till due order should be taken for their relief." If they were excessively pun

1 Great consternation was occasioned by the discovery, in several instances, of unnatural crimes. The disgusted reader does not know what to think of the story of them, except that it was entirely believed, sometimes on the evidence of confession. Of course, among the adventurers who crowded hither from Europe, there were individuals grossly bad, and the restraints of the ascetic society into which they were brought may have quickened their brutal passions into a desperate depravity.

"The definition of treason is significant not only from its silence re

ished, they were to be discharged and compensated. When they had rendered diligent service seven years, they were not to be "sent away empty." The conditions of bondage were thus expressed: "There shall never be any bond-slavery, bond-slavery, villanage, or captivity amongst us, unless it be lawful captives taken in just wars, and such strangers as willingly sell themselves, or are sold to us. And these shall have all the liberties and Christian usages which the law of God established in Israel concerning such persons doth morally require." 2