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Code of Laws* 10#
crimes, unknown as such to those of England; and smaller offences were multiplied with rigorous exactness. As this severity had for its obje£t, an exemplary purity of morals and religion, which should extend to every person in society, it of ♦course reached the more private actions of its members, and included all the relationships subsisting between them.
'"Their'capital offences were idolatry, witchcraft, blasphemy, murder, bestiality, sodomy, adultery, manstealing, bearing false witness, con. spiracy, and rebellion, cursing, or smiting a parent, unless when neglefied in education, or provoked by extreme and cruel correction, rebellious and stubborn conduct in a *son disobeying the voice and chastisement of his parentsvand living in notorious crimes, rape, and arson ; other offences were also made capital upon a second or third convidtion, :and the degree of the offence was in some instances increased by the circumstance of its being committed on the sabbath.
'" In the inferior classes of crimes, wereitiany peculiar to the situation of the colony, especially With regard to sumptuary regulations, and the enforcing- of industry. In these there are strong proofs of the disposition which prevailed, -of .'shewing respefitto particular descriptions of families by distin&igns in their favour,
"Their punishments bore a resemblance *t6. the: general rigour of their penal code, and we're sometimes, even in capital cases, left to the discretion 110 Judicial Court,
of their judges. There is a law on the subjefit of torture, which is a stain rather upon the volume in which it is recorded, than upon the practice of the country ; to the honour of which it may be said, that the use of this statute has been so little contemplated, that it became wholly obsolete. This law prohibits torture generally, but excepts any case in which the criminal is first fully convifted, by clear and sufficient evidence ; after which, if it be apparent from the nature of the case, that there be confederates with him, he may be tortured, yet not with such tortures as are barbarous and inhuman. The very terms of this statute seem to disarm it of the power of injuring, and would render it, if it ware in force, a less dreadful engine of inhumanity, than the peine forte et dure of the English law. The rigour of justice extended itself as well to the proteftion of the rights of property, as to the moral habits of the people; and a remarkable instance of this is shown in the power given to creditors, over the persons of their debtors. The law admitted of a freeman's being sold for service to discharge his debts, though it would not allow of the sacrifice of his time, by his being kept in prison, unless some estate was concealed.
"The governor and assistants were the first judicial court; to this, inferior jurisdiction^ were added ; and upon the house of representatives coming into existence, the judicial authority was shared by them, as in the words of their law, the second branch of the civil power of this commonwealth
Civil Regulations. Ill
The subordinate jurisdictions, were the individual magistrates, the commissioners of towns and the bounty courts. Thes6 seem, in some sense, to have a£led as the deputies of the general court', since, in difficult points, they were allowed to state the case without the names of the parties, to that court, and receive its declaration of the law.
"' The perpetual controversy incident to-dividing power among several orders,, disproportionate in their numbers, took place between the assistants and representatives. Whether they should vote in separate bodies or collectively, became a serious dispute. As by a defeat in the constitution they held both legislative and judicial authority; it was at last compromised, that in making the laws, the houses should vote separately, with a negative upon each other; but in trying causes, in case they should differ in this mode, they should proceed to determine the question by votingtogether. As in their government, hereditary claims were rejected, their public officers being all peri* "odically chosen from the body of the freemen, and without regard to distinct orders, so in the descent and distribution of real or personal estates of intestates, the exclusive claim of any one heir was not admitted, but equal division was made among all, reserving only to the eldest son a double portion. This, especially in case of a numerous family, which is not an uncommon instance in a young country, effedually prevented the undue accumulation of property. These two regulations may be said to be the great pillars on which re112 Chil Regulations.
publican liberty in Massachusetts is supported. There was an inestimable advantage gained to the cause of freedom by a law,*in 1641, which declares the lands of the inhabitants free from all fines and licences upon alienation, heriots, wardships, and the whole train of feudal exa6lions, which have so grievously oppressed mankind in other parts of the world. They tendered hospitality and suecour to all christian strangers, flying from the tyranny of their persecutors, or from famine, wars, or the like compulsory cause, and entitled them to the same law and justice as was administered among themselves.
But while they have thus scrupulously regulated^the morals of the inhabitants within the colony, and offered it as an asylum to the oppressed nmong mankind, they neglected not to prevent the contagion of dissimilar habits, and heretical principles from without. A law was made, in the year 1637, that none should be received to inhabit withiivthe jurisdiftion, but such as should be allowed by some of the magistrates; and it was fuU ly understood, that differing from the religious tenets generally received in the country, was as great a disqualification, asany political opinions whatever. In a defence of this order, it is advanced, that the apostolic rule of rejecting such as brought not the true doclrine with them, was as applicable to the commonwealth as the church, and that even the profane were less to be dreaded, than the able ad~ vocals of erroneous opinions*"*
C H A P. EC
Character of first settlers, New Hampshire and Maine settled, Exeter planted.
HE first settlers of New England were certainly a remarkable people; of a chara£ter peculiarly adapted to those important designs in Providence,, which they were to fulfil. They were destined to plant and subdue a wilderness, filled with savage and ferocious enemies; to lay the foundation of a great empire; and this too under the jealous and unpropitious eye of their parent country. Accordingly, they were enterprising, brave, patient of labour and sufferings, and possessed a firmness of spirit, and a zeal for religion bordering on enthusiasm. They had also among them their full proportion of the learned, and best informed men of that age. A body of men more remarkable for their piety, more exemplary in their morals* more respectable for their wisdom, never before, nor sincer commenced the settlement of any country. What have been considered as blemishes in their character seemed necessary in their situation. "Less rigour would have disqualified them for discharging the heavy duties which they had to perform, and, perhaps, more liberality would have introduced se&aries, which would have weakened the community by divisions, and profligates, who
would have corrupted it by their vices.55* One K2