United States -- History -- Colonial period, ca. 1600-1775
For more than ten years after the planting of Massachusetts the magistrates
dispensed justice according to their understanding of right and wrong;
there were no statutes, neither had the English common law been officially
recognized, except so far as it was understood that Englishmen carried the
law of their land with them in emigrating to America. "In the year 1634,"
says Hutchinson, "the plantation was greatly increased, settlements were
extended more than thirty miles from the capital town, and it was thought
high time to have known established laws, that the inhabitants might no
longer be subject to the varying uncertain judgments which otherwise would
be made concerning their actions. The ministers and some of the principal
laymen were consulted with about a body of laws suited to the circumstances
of the colony, civil and religious. Committees of magistrates and elders
were appointed" from year to year by the General Court, but it was not
until 1641 that a body of statutes was finally adopted.
Sidenote: The Body of Liberties.
The influence of the clergy is well illustrated in the fact that the two
codes finally submitted were the work of ministers,--John Cotton of Boston,
and Nathaniel Ward of Ipswich. The latter's plan, in which he received the
aid of Winthrop and others of the elders, was adopted in 1641, under the
title of The Body of Liberties. In England, Ward had at one time been a
barrister, and was well read in the common law, on which his code was
mainly based, although it also contained many features of the law of Moses.
Equal justice was vouchsafed to all, old or young, freeman or foreigner,
master or servant, man or woman; persons and property were to be inviolable
except by law; brutes were to be humanely treated; no one was to be tried
twice for the same offence; barbarous or cruel punishments were forbidden;
public records were to be open for inspection; church regulations were to
be enforced by civil courts, and church officers and members were amenable
to civil law; the Scriptures were to overrule any custom or prescription;
the general rules of judicial proceedings were defined, as were also the
privileges and duties of freemen, and the liberties and prerogatives of the
churches; public money was to be spent only with the consent of the
taxpayers. "There shall be no bond slaverie, villinage or Captivitie
amongst us unles it be lawfull Captives taken in just warres, and such
strangers as willingly selle themselves or are sold to us;" but all such
were to be allowed "all the liberties and Christian usages which the law of
god established in Israell." Notwithstanding this enlightened provision,
persons continued to be born and to live and die as slaves within the
boundaries of the commonwealth down to 1780. Servants fleeing from the
cruelty of their masters were to be protected, and there was to be appeal
from parental tyranny. "Everie marryed woeman shall be free from bodilie
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