« PreviousContinue »
Declaration contains a parallel between the provisions of Magna Charta and other laws of England, on the one hand, and the “ Fundamentals of Massachusetts," on the other. * In this they set forth forty-four fundamental propositions, annexing to each the authorities for it. Six times they refer for authority to their Charter, seven times to Custom, - eight times to laws of specified dates, once to the Bible, - and
-- and twenty-seven times to the “ Liberties,” citing each by its appropriate number. Now the provisions thus cited by them from the Body of Liberties, as their fundamental laws, are not to be found, in form or in substance, in this Abstract. How can this then have been the basis of their Code ?
As to the conjecture, that Vane had a hand in drawing it up, this seems purely gratuitous; for Cotton was perfectly competent to it, and the work contains nothing that might not just as naturally fall from his pen as from that of Vane, or that can lead us to distrust in the least the contemporaneous authorities on this point, which all concur in ascribing it to Cotton and to him alone.
Being long since satisfied, for the reasons above stated, that the Abstract so repeatedly printed was not the Code established in 1641, nor the substance of it, I carefully examined the ancient records of the Colony, and soon ascertained, that this Code had not been printed, and that no copy of it existed among those Records. The researches, in which I was then engaged, led me next to seek for the first printed edition of the Laws, published in 1649 ; but I have never been able to find it. During this pursuit, however, it so chanced, that one day, more than twenty years ago, I took up from a corner in the old Athenæum, a folio volume containing the Colony Laws, as published in 1672; an edition 'not of any great rarity. But bound up with it was a manuscript of about sixty pages in the hand-writing of that day, which is not easily read. This volume appeared to have belonged to Elisha Hutchinson, who was the grandfather of Governor Hutchinson, and who died in 1717 at the age of 77. On examining the manuscript carefully, I found it to contain a copy of the Colonial Charter of 1629,
* Hutch. Col. 198.
together with ten other valuable documents relating to our early history, one of which was “ A COPPIE OF THE LIBERTIES OF THE MASSACHUSETTS, COLONY IN NEW ENGLAND."
Its genuineness was soon placed beyond question. All the documents accompanying it are undoubtedly genuine, and may now be found printed, with one exception, at full length, in our collections of public documents. It is divided into one hundred distinct articles, separated from each other by strong black lines ; and although the introductory and concluding paragraphs are not numbered as laws, so that the highest number is ninety-cight, whereas Winthrop says the Body of Liberties contained a hundred laws, yet this is but an instance of that substantial agreement with circumstantial variation, which is one of the strongest evidences of truth. On comparing these numbers with the citations from the Liberties made in support of the fundamental laws by the General Court in 1646, it was found that they agree, and that the articles in this manuscript are numbered in the same manner as in the official copy then used by them. These liberties too are, almost without exception, incorporated, and often in the same words, into the printed Laws of the Colony, which are entitled “Laws and Liberties.” Three complete editions of these were published by authority, viz. in 1649, in 1660 and in 1672. In these the laws were not inserted in the order of their dates, as in modern times ; but all existing provisions of law were consolidated, and classed under appropriate titles, arranged in alphabetical order. So that the complete codification of the Statute Law is no new thing under the sun, but was practised by the Colonists of Massachusetts from the beginning. In this manuscript we find in the margin, opposite most of the Liberties, the number of a page and sometimes of a section. These are references to the page and section of the edition of 1672, where the same provision may be found.
This then is beyond all doubt the Body of Liberties composed by Nathaniel Ward of Ipswich, author of the Simple Cobbler of Agawam, and adopted by the Colony of Massachusetts in 1641; the first Code of Laws established in New England.
On comparing it with the Abstract drawn up by Cotton in 1636, it will be seen that it bears no resemblance to it either in form or in substance, excepting, that in the Article entitled Capital Laws, each clause is supported by texts from the Old Testament. Many of the Puritans of that day hesitated to inflict capital punishment without warrant of scripture; and accordingly even the crime of rape was not made capital till the next year, 1642.* But as to all other offences, which they thought worthy of death, there was no difficulty in finding authority in the Pentateuch for its infliction, and these texts were cited to satisfy all scruples.
But while the Body of Liberties made no crime capital, which was not so by the Law of Moses, it did not go the length of the Abstract, and inflict the punishment of death in every case where it was inflicted by that Law; as for Heresy, profaning the Lord's day, and reviling of Magistrates, for which last the notable case of Shimei, in the second Chapter of the first Book of Kings, is quoted as authority. Neither does the Book of Liberties cite scripture except in relation to punishments, whereas in the Abstract such citation is carried to an almost ludicrous extent. As where it is provided, that the Governor and in his absence the Deputy Governor shall have power to send out warrants for calling of the General Court, and authority for this provision is gravely cited from Joshua xxiv. 1. And Joshua gathered all the tribes of Israel to Shechem,” &c. And again " Every Court shall have certain officers, as a Secretary to enroll all the acts of the Court.
1 Kings, iv. 3. Elihoreph and Ahiah the sons of Shisha scribes ; Jehoshaphat the son of Ahilud recorder."
These examples are sufficient to show the character of the Abstract drawn up by John Cotton. But the smile, they may excite, should not diminish our veneration for that eminent and holy man, and those who concurred with him
The provisions of the Abstract on this subject strikingly exhibit the manner, in which those good men found all things in the scripture This crime committed again.t a woman married or espoused was considered as adultery, or quasi adultery, and as such, was a capital offence But committed against a maiden not contracted, it was not to be punished with death, but 1. With fine or penalty to the father of tie maid. 2. With marriage of the maid, if she and her father consent. 3. With corporal punishment of stripes, “ for this wrong is a real slander." For the whimsical ground of this last whimsical position (deemed necessary in order to justify the punishment of stripes in this case) I must refer to the original. VOL. VIII.
in this matter. Our ancestors were of the strictest sect of the Puritans. Their zeal for their peculiar tenets and forms, animated by controversy, and exasperated by cruel persecutions, had driven them from the comforts of the civilized world into the wilderness, and it is not surprising, that it should have almost eaten them up. Their sufferings under the Hierarchy of England might naturally lead them to renounce all authority, but that of the scriptures, and to seek in them the only rules of civil government, as well as of moral and religious duty. No wonder, that the professional champions of those tenets and forms should possess very great authority; and that possessing it, they should not refrain from its exercise, or from seeking to extend it, by providing, that the scriptures, of which they were themselves the chief interpreters, should be the only Law of the Land. If the love of power inherent in our nature had its influence on them in this, they were no doubt entirely unconscious of it, and acted from the sincere conviction, that the scheme they proposed was the most conducive to the honor of God and to the welfare of Men. It must be admitted also, that the scriptures were not unfrequently appealed to by the Legislature itself in a manner, which at the present day would be deemed altogether extravagant; and hence no doubt the erroneous opinion here traced to its origin, has found more ready credence.
John Eliot, the devoted Apostle to the Indians, also prepared a frame of government, deduced entirely from the Scriptures, for the benefit of his Indian converts, and set it up among them.* This bears not the slightest resemblance to the Abstract drawn by Cotton from the same source; but it was regarded by its Author as the only fit model for the government of any community of Christians; and was published in London in 1654, with a Preface by him recommending it to the adoption of the People of England, under the title of the Christian Commonwealth. After the restoration of Charles II., the Legislature of Massachusetts, suspected and frowned on, by the English Government, deemed it expedient to order, that this work should be totally suppressed, and required an acknowledgment from Eliot, in
* III. Hist. Coll. iy. 271.
which he admits the government of England by King, Lords and Commons, to be lawful. No printed copy of the work now exists in any of our Libraries here. But in that of the Historical Society there is a transcript of it.
But though Eliot did set up his scheme among the Indians, the idea hitherto prevalent that Cotton's Abstract was adopted by the Colonists does them great injustice. The Body of Liberties really established by them, exhibits throughout the hand of the practised lawyer, familiar with the principles and the securities of English Liberty; and although it retains some strong traces of the times, is in the main, far in advance of them, and in several respects in advance of the Common Law of England at this day.* It shows that our Ancestors, instead of deducing all their laws from the Books of Moses, established at the outset a code of fundamental principles, which, taken as a whole, for wisdom, equity, adaptation to the wants of their community, and a lib. erality of sentiment superior to the age in which it was written, may fearlessly challenge a comparison with any similar production, from Magna Charta itself to the latest Bill of Rights
, that has been put forth in Europe or America. Those familiar with the Administration of the Laws in Massachusetts will here find, as in Liberty 14, and others, that some established practices which have been heretofore supposed to rest only on ancient custom, are in reality founded on express provisions of this venerable Code.
It may be useful to those engaged in such researches, and not uninteresting to others, as throwing light on the character of the colonists, to trace the history of our Colonial Code from the Charter to the edition of 1660, the earliest, of which any copy is now known to be extant. The Governor and Company of Massachusetts Bay in New England were incorporated, like the African, East India and other
Witness the 80th Liberty, providing that no man shall strike his wife ; whereas the Common Law of England authorizes the infliction of chastisement on a wife, with a reasonable instrument. There is an anecdote, that Judge Buller, charging the Jury in such a case, said to them: “ Without undertaking to define exactly what a reasonable instrument is, I hold, gentlemen of the jury, that a stick no bigger than my thumb cones clearly within that description ; and that a Committee of Ladies waited on him the next day, to beg that they might be favored with the exact dimensions of his Lordship's thumb.
See also Liberties 8, 9, 10, 11, 25, and several others, for provisions in advance of