and persons in authority were intensely reluctant to have any written laws made, because by these their discretion would be restrained. The reason assigned by Winthrop for this reluctance was the desire to have laws grow up by custom, so as to have them adapted to the nature and disposition of the people, which could not be sufficiently known to the magistrates properly to legislate for them. A second reason was that the charter provided that the colonists should make no laws repugnant to the laws of England. This they held to refer to positive legislation. The growth of law by custom, though the product might be radically opposed to English principles, they believed no infringement of the charter. Notwithstanding these reasons of the magistrates, the general court insisted upon having a comprehensive body of laws made. The controversy had none of the acrimony of the similar struggle for written laws in Rome before the Twelve Tables; but we can note the same principles at work; the magistracy, in whose discretion the administration of the laws has so far been founded, are reluctant to give up a part of this power, and therefore resist a codification of law. The outcome of this agitation was the passage of the celebrated Body of Liberties,3 in 1641. To evade one of the objections noted by the magistrates, this code was not really enacted as law, but the general court did "with one consent fully authorize and earnestly entreat all that are and shall be in authority to consider them as laws." The laws had been prepared by Nathaniel Ward, a minister with some legal training. They had been revised by the general court and sent into every town for further consideration. Upon the suggestions thus gathered they were again revised and then established as above mentioned. A more careful process of legislation is perhaps nowhere recorded. The laws may therefore be looked upon as a full expression of the popular sense of what the legal relations in the colony should be. John Winthrop's History of New England, 322. 4 Ward, in a letter to Governor Winthrop, December 22, 1639, questions the advisability of submitting the laws to the different towns for consideration by the freemen thereof, and fears that the spirits of the people might rise too high. They should not be denied their proper and lawful liberties, but he questions "whether it be of God to interest the inferior sort in that which should be reserved ‘inter optimates penes quos est sancire leges. ́ ́ Turning now to the Body of Liberties itself, we find that the doctrine stated in 1636 is again announced, that no man's life shall be taken away unless by virtue of some express law established by the general court, or, in case of the defect of the law in any particular case, by the word of God." This provision re-enacts the rule of the Massachusetts fundamentals. "In all criminal offenses where the law hath prescribed no certain penalty, the judges have power to inflict penalties according to the rule of God's word." The provisions of the Body of Liberties also show the theocratic nature of the Puritan colony. It contains, moreover, many provisions originated by the colonists in response to their special needs. The criminal law is founded on the code of Moses, though the breaking of the Sabbath and the striking of parents are not made capital offenses. In the laws of 1658, however, the latter offense, as well as rebellious conduct against parents is made capital. The law of inheritance is taken from the Scriptures. Imprisonment for debt, except when property is concealed, is not in use. Any debt due in bill or specialty may be assigned, and the assignee may sue upon the same. Cases involving an amount not over forty shillings are to be heard by magistrates or a commission of three freemen without a jury. A suit is commenced by summons or attachment. Testimony may be taken in writing by any magistrate or authorized commissioner Massachusetts Historical Collections, Series IV, vol. VII, 26. Body of Liberties, p. 1. Hutchinson, State Papers, 205. "Book of General Lawes and Liberties, 1660, p. 8 and following. and persons in authority were intensely reluctant to have any written laws made, because by these their discretion would be restrained. The reason assigned by Winthrop for this reluctance was the desire to have laws grow up by custom, so as to have them adapted to the nature and disposition of the people, which could not be sufficiently known to the magistrates properly to legislate for them. A second reason was that the charter provided that the colonists should make no laws repugnant to the laws of England. This they held to refer to positive legislation. The growth of law by custom, though the product might be radically opposed to English principles, they believed no infringement of the charter. Notwithstanding these reasons of the magistrates, the general court insisted upon having a comprehensive body of laws made. The controversy had none of the acrimony of the similar struggle for written laws in Rome before the Twelve Tables; but we can note the same principles at work; the magistracy, in whose discretion the administration of the laws has so far been founded, are reluctant to give up a part of this power, and therefore resist a codification of law. The outcome of this agitation was the passage of the celebrated Body of Liberties, in 1641. To evade one of the objections noted by the magistrates, this code was not really enacted as law, but the general court did "with one consent fully authorize and earnestly entreat all that are and shall be in authority to consider them as laws." The laws had been prepared by Nathaniel Ward, a minister with some legal training. They had been revised by the general court and sent into every town for further consideration. Upon the suggestions thus gathered they were again revised and then established as above mentioned. A more careful process of legislation is perhaps nowhere recorded. The laws may therefore be looked upon as a full expression of the popular sense of what the legal relations in the colony should be. John Winthrop's History of New England, 322. 4 Ward, in a letter to Governor Winthrop, December 22, 1639, questions the advisability of submitting the laws to the different towns for consideration by the freemen thereof, and fears that the spirits of the people might rise too high. They should not be denied their proper and lawful liberties, but he questions "whether it be of God to interest the inferior sort in that which should be reserved 'inter optimates penes quos est sancire leges."" Turning now to the Body of Liberties itself, we find that the doctrine stated in 1636 is again announced, that no man's life shall be taken away unless by virtue of some express law established by the general court, or, in case of the defect of the law in any particular case, by the word of God. This provision re-enacts the rule of the Massachusetts fundamentals. "In all criminal offenses where the law hath prescribed no certain penalty, the judges have power to inflict penalties according to the rule of God's word." The provisions of the Body of Liberties also show the theocratic nature of the Puritan colony. It contains, moreover, many provisions originated by the colonists in response to their special needs. The criminal law is founded on the code of Moses, though the breaking of the Sabbath and the striking of parents are not made capital offenses. In the laws of 1658, however, the latter offense, as well as rebellious conduct against parents is made capital. The law of inheritance is taken from the Scriptures. Imprisonment for debt, except when property is concealed, is not in use. Any debt due in bill or specialty may be assigned, and the assignee may sue upon the same. Cases involving an amount not over forty shillings are to be heard by magistrates or a commission of three freemen without a jury. A suit is commenced by summons or attachment. Testimony may be taken in writing by any magistrate or authorized commissioner Massachusetts Historical Collections, Series IV, vol. VII, 26. Body of Liberties, p. 1. Hutchinson, State Papers, 205. Book of General Lawes and Liberties, 1660, p. 8 and following. to be used in criminal or civil cases. If the party cast has any new evidence or matter to plead he can obtain a new trial on bill of review. Free tenure of lands is adopted and all feudal incidents are abolished. Conveyances are to be by deed in writing. The period of prescription for title by possession is fixed at five years. Civil marriage is instituted. The code of Ward was not the only one prepared for Massachusetts. John Cotton also submitted to the general court a body of laws, founded throughout on the Scriptures, with references thereto. This code, though published in England and there reputed to be in force in the colony, was never enacted at all by the general court. The conception of law current among the Puritans is well illustrated by the remark of Cotton that he should not "call them laws because God alone has the power to make law, but conventions between men." This theory of law as the command of God, the mediæval conception uncolored by the modern views of sovereignty, seems to have been firmly held by the Puritans of New, as of Old, England.9 The same view in addition to the reasons cited above may have prompted the general court not to call the Body of Liberties laws, but to pass them in the form of recommendations. Turning now to the practice of magistrates and courts in the actual conduct of cases we shall find the same principles universally acknowledged. Everywhere, the divine law, interpreted by the best discretion of the magistrates, is looked upon as the binding subsidiary law; while the common law is at most referred to for the sake of illustration. In 1641, the court had under consideration the case of the rape of a small child. There was a great question as to what kind of sin it was, and the court "sought to know the mind of God by the help of all the elders of the country." On the authority of Deuteronomy XVII, 12, it was held in another case that presumptuous sins were not capital unless committed in open & Hutchinson Papers, vol. I, 160. 9 Figgis, Divine Right of Kings, p. 223. |