In the year after the adoption of the Body of Liberties of Massachusetts, an order passed for printing that part which designated capital offences, and another 1642. crime (rape) was added to the list.1 1644. Before June 14. the end of the time for which the instrument had been provisionally adopted, two committees, consisting, the one of Winthrop, Dudley, and Hibbens, the other of "the Magistrates residing at Ipswich," March 7. were appointed "to consider of the Body of Liberties against the next General Court, what is fit to be repealed or allowed." It may be presumed to have, on trial, obtained general favor, as the next General Court does not appear to have reconsidered it, and as it continued to be the rule of administration in after times. 2 The earliest code in Connecticut related only to capital offences. Adopted a year later than the Massachusetts Body of Liberties, it is in great part a verbal copy from that instrument. Neither be- necticut and 1642. Dec. 1. Laws in Con New Haven. fore, nor for several years after, the confederation of the Colonies, had New Haven any body of statutes. During this time the courts were guided in their decisions by what they received as the rules of equity and Scripture. "The fundamental order" on this 1644. subject was:-"The judicial laws of God, as April 3. they were delivered by Moses, and as they are a fence to the moral law, being neither typical nor ceremonial, nor having any reference to Canaan, shall be accounted of moral equity, and shall generally bind all offenders, and be a rule to all the courts in this jurisdiction in their 1 Mass. Rec., II. 21, 22. 2 Ibid., 61; comp. 39. Conn. Rec., I. 77. - Even the same Scriptural authorities are quoted. There is a transposition of the second and third articles (Blasphemy and Witchcraft), and there are some substitutions. The Massachusetts code punishes manslaughter and adultery with death; that of Connecticut omits these crimes, and puts in their place rape and incest. The articles which they have in common relate to idolatry, blasphemy, witchcraft, murder, unnatural crimes, man-stealing, perjury endangering life, and treason against the Colony. proceedings against offenders, till they shall be branched out into particulars hereafter."1 The opinions of the present age respecting the proper province of law are not altogether the same as were 1 N. H. Rec., I. 130; comp. 113. Most American readers have heard of the "Blue Laws" of New Haven, which have been precisely described as making "one thin volume in folio," embracing the following among other provisions: "No one shall travel, cook victuals, make beds, sweep house, cut hair, or shave, on the Sabbath-day. No woman shall kiss her child on the Sabbath or Fasting day. No one shall read Common Prayer, keep Christmas or Saint days, make minced pies, dance, play cards, or play on any instrument of music, except the drum, trumpet, and jewsharp. Every male shall have his hair cut round, according to a cap." (General History of Connecticut, 65, 66, 68, 69, 82.) It is not perhaps so well known that these statements are without historical foundation. In the primitive age of the Colony, the discretionary action of the Magistrates sometimes resembled the discipline of the head of a family, rather than a formal legal administration; but the existence, at any time, of a code containing provisions such as are quoted above, is a mere fabrication, nor is there any record of so much as single judgments pronounced agreeably to the tenor of those provisions. The anonymous work which first vent ed the fiction was published in London in 1781, and a second edition appeared in the following year. The author was Samuel Peters, a loyalist and refugee. He was a college contemporary of Trumbull, the conscientiously exact historian of Connecticut, and is said to have been a native of the same town. Trumbull said of him, that "of all men with whom he had ever been acquainted, Dr. Peters he had thought, from his first knowledge of him, the least to be depended on as to any matter of fact." (Kingsley's Historical Discourse, p. 84.) The reader at all acquainted with Connecticut history may satisfy himself concerning Peters's credibility by five minutes' inspection of his work. The reader without such acquaintance will form some judgment of the author's capacity for telling the truth, when he comes upon the following representation of a scene on the river Connecticut : "Here water is consolidated without frost, by pressure, by swiftness, between the pinching, sturdy rocks, to such a degree of induration, that no iron crow can be forced into it; here iron, lead, and cork have one common weight." (General History, &c., p. 127.) Malte-Brun (Géographie Universelle, Liv. XIII.) expresses the judicious opinion that this must be "grossly exaggerated.” A small volume, containing "The [Connecticut] Code of 1650," was published in Hartford in 1822, with an Appendix of twelve pages, in duodecimo, entitled "New-Haven Antiquities, or Blue-Laws." Of course, this was a taking title, intended to help the sale, as was the binding of the book in blue covers. The collection, brief as it is, is in great part made up of a record of orders having nothing of a fanciful or rigorous character; — as, for instance, for the building of a meeting-house, for the laying out of lands, for a supply of arms. It embraces a few notices of punishment inflicted for drunkenness and impurity, but nothing of the kinds specified by Dr. Peters, and currently quoted as Blue Laws. Regulation of expenses. current at the time of the colonization of New England.1 In all the Colonies, orders were made for the regulation of the prices of commodities and la- of prices and bor. This legislation was fluctuating, because experience could not fail speedily to show the inutility or mischief of each particular provision. The theory of a public control over the terms of private contracts is plausible; and, till experiments prosecuted in every promising direction had exposed its unsoundness, the idea was not abandoned that some new device would remedy the manifest defects of those which had preceded.2 But the error was not native in New England, nor did it linger longest in that country. It was embodied in the statutes of the mother country at least as early as the fourteenth century; it continued in good credit there at least to the latest days of the Stuarts, long after it had been abandoned by the practical wisdom of the colonists;3 and all along it was asserted in provisions much more comprehensive and more rigorous than theirs. The less objectionable legislation which was tried for the restraint of extravagance in dress, was also no invention of New England or of Puritanism. It had precedent in the earlier times of England.* In Massachusetts, not only the support of the ministrations of religion, but personal attendance upon them, 1 February 8, 1640, by the General Court of Connecticut, "Mr. Webster and Mr. Phelps are desired to consult with the elders of both plantations to prepare instructions against the next Court for the punishing of the sin of lying, which begins to be practised by many persons in this Commonwealth." (Conn. Rec., I. 62.) "The Court having found by experience, that it would not avail by any law to redress the excessive rates of laborers' and workmen's wages, &c., for, being restrained, they would either remove to other places where they might have more, or else, being able to live by planting and other employments of their own, they would not be hired at all," &c. (Winthrop, II. 24.) Macaulay, History of England, Chap. III., juxt. calc. Queen Elizabeth posted at the gates of London "selected grave citizens" to correct the costume of gallants who "exceeded a nail of a yard in depth of their ruffs." (Stowe, Chronicles, 869.) tion to attend public worship. was enforced by law. This was no local peculiarity. It Legal obliga- was law in England. It was law in Virginia, and had been so before New England had an English inhabitant.2 In its theory -the theory of a right to control the individual, not only for his neighbor's protection, but for his own improvement-it was law after the universal traditions of Christendom. But, if the New-England founders had not been familiarized with it by example, it may well be supposed that they would have originated it for reasons of their own. The sense of a right to be exempt from public coercion takes different forms at different periods.3 The democratic people of New England, in recent times, have supposed it to be no invasion of the citizen's liberty to require him to submit his children to instruction in reading, writing, and arithmetic, to the end that they may not grow up to be incapable and shiftless, chargeable and troublesome. And on similar grounds, their predecessors in the primitive age considered it to be conducive to the public good, and unobjectionable to the individual, that he should be saved from the misery to himself, and the mischievousness to his neighbors, of ignorance respecting morals and religion. A godless population is a population ungovernable except by a despotism. To be capable of lasting liberty, a people must be religious. It is vital to free 1 Mass. Rec., I. 140.- This legisla tion of Massachusetts was imitated in the other Colonies, probably as soon as occasion arose for it. (See Brigham, Compact, &c., 93; Conn. Rec., I. 524.) 2 In 1610, every colonist of Virginia was obliged to attend church twice every Sunday, "upon pain, for the first fault, to lose their provision and allowance for the whole week following; for the second, to lose said allowance and also to be whipped; and for the third, to suffer death." (Force, Histori cal Tracts, III. (ii) 11; comp. Hening, Statutes at Large, I. 123, 144, 261.) 3 A feudal baron would have deemed it altogether reasonable to burn a doubter of the real presence in the eucharist, but would have resented to the death any compulsion to have his children taught to read. "Thanks to St. Bothan, son of mine, General Statutes of Massachusetts, government, that they who are to sustain and enjoy it should have a sense of the government of God. Neither devout worshippers nor virtuous citizens can be made by law. But that proposition scarcely warrants an inference that the law can do nothing, or can do nothing without overbalancing disadvantages, towards bringing the citizen within the reach of influences helpful to his becoming devout and virtuous. And supposing law to be impotent for such purposes, still, before the colonization of New England, the experiment had not been made under circumstances of any good promise; experiments for such an object were well worth the making; and if anywhere there could be hope of their succeeding, it would be in a community so small, that every neighbor might be a guardian of every other, and that the edicts of law and the persuasions of Christianity might be aided by seasonable counsel and contagious example. The early law-makers in this country had had sad occasion to know, that a false and ineffective religion depraves the morals of a people, and sows the seeds of public wretchedness. Believing that in the Gospel which had so ennobled themselves there resided a power to render the same good office to all whom it addressed, they naturally esteemed it an act of duty and of kindness to take care that all should have the benefit of its ministrations. If the policy of their descendants in compelling the attendance of children at day-schools is less questionable, certainly the aim was not more elevated. If the doctrine be good, that the state cannot bear to have grossly ignorant citizens, it is hard to deny plausibility to the opinion that it was for the safety of the state that every citizen should be addressed every week with invitations to lead a religious life.1 1 "Profane swearing, drunkenness, and beggars are but rare in the compass of this patent," wrote Lechford in 1641 (Plaine Dealing, 29). Drunk enness and beggars are without doubt nuisances in a community; and, if religious instruction will abate them, it serves a purpose of the commonwealth, |