mitted to any person, any lawe, vsage, or custome to the contrary notwithstanding; and for that end all marshalls & constables are enjoyned to make their returnes of attachments by them served some time the first forenoone of the Court that is to take cognisance of the case concerned therein; prouided, that the double entry money be pajd by him that so neglects his entry, & not put the defendant to vnnecessary charge through his default." IV Records of Mass. (Part II) 280.

This provision seems never to have been reënacted or adopted here until the February term, 1719, of the superior court, when the following appears:

"Ordered a rule of court that all cases that shall be entered after the rising of the court in the forenoon shall pay double entry." Judge Smith's Old Records 294.

Rules of court were authorized by the act of June 21, 1701 (N. H. Laws, Russell's ed., 22), and the power had been exercised as early as the time of Waldron's case in 1707.

In Allen v. Waldron it is clear that the defendant and his father had had possession of the locus in quo for more than sixty years. This and various other cases make it clear that the statute of limitations adopted while New Hampshire was a part of the Bay colony was never in force here, and also that as late as April 15, 1707, to use the language of Judge SMITH, "The lawyers of that day did not conceive the British statutes of limitations as in force in this country."

The statute of frauds was reenacted here May 2, 1719, and it is very questionable whether any part of it was treated as in force here prior to that time.

Prior to 1680, a common mandate in writs was to "attach the goods or chattels" of the defendant," and to take bond to the value of ..... ""for his appearance," etc. The returns, as a rule, follow the mandate; for the return of nominal attachments, as of a "hat," "chair," etc., did not become common for more than forty years after that period. These bonds were, as a rule, exceedingly brief, not longer, and generally not as long, as the ordinary engagement of a receiptor in these days with the sheriff. It is questionable whether this is. not the foundation of the practice of taking receiptors, instead of the one assigned in Phelps v. Gilchrist, 28 N. H. 272.

Seals and scrolls were used almost indiscriminately prior to 1700, and often after that. The courts of associates held at Dover and Portsmouth as early as June, 1663, acted as probate

courts.

Laws in relation to levies upon real estate, substantially like those now in force, prevailed in the Bay colony from a very early period, and in New Hampshire since May 13, 1718. Prior to that time, after the levy had been made, and returned to court, it seems to have been the practice of the courts to order a sale at public vendue. Thus, at the February term of the superior court in 1715, in the action Edward Cate v. Hugh Banfill, we find the following order of court:

"The sheriff returned an execution Edward Cate con. Hugh Banfill as on file that he had levied it on the dwelling house & land of the said Banfill in Portsmo. Ordered that a writ be issued out for the sayle of the said house & land according to law." Judge Smith's Old Records 291.

This seems to have been purely a New Hampshire practice. In consequence of the decision in Barney v. Leeds in 1874, 54 N. H. 128, the commissioners adopted this rule of practice, and the legislature made it a part of the General Laws in matters of partition when the court could see that it would be for the interest of the parties.

On September 9, 1639, the Bay colony provided as follows: "Whereas many iudgments have bene given in or Courts, whereof no records are kept of the evidence & reasons wherevpon the verdit & iudgment did passe, the records wherof being duely entered & kept would bee of good vse for president to posterity, & a releife to such as shall have iust cause to have their causes reheard & reveiwed, it is therefore by this Court ordered & decreed that henceforward every iudgment, wth all the evedence, bee recorded in a booke, to bee kept to posterity." I Records of Mass. 275.

Some of the clerks of court were found incompetent, and this had its effect upon subsequent legislation.

The practice in New Hampshire, however, was very different. At first there were no lawyers, and the parties went into court with their witnesses, and gave in their testimony under oath. No record of the same was made. Afterwards each party would

take his witnesses before some person who was a ready writer, and who was supposed to have a clear head, this being oftentimes the town-clerk, or some person of prominence, who took down briefly but carefully the testimony of each witness. The witness did not sign this, or swear to it. The party, when the trial came on, took these witnesses and their written statements to court. The statement of each witness was read over to him in court. The clerk added to, or otherwise modified it, as the witness desired. The witness was then sworn, but did not sign. The testimony so taken was thus made complete for the consideration of the court or jury, as the case might be. When the trial was over the party took away this written testimony of his witnesses, precisely as he did his deeds or other papers. This practice continued for generations. Testimony so taken was called depositions, but when by the law written testimony could be taken out of court it was known in the statutes and otherwise as "affidavits taken out of court."

When the separatists and fishmongers came into New England, they rejected the form of oaths with which they were familiar in the mother country. The separatists of Plymouth established in lieu thereof swearing by the uplifted hand. This form was adopted in the New Hampshire towns, and has continued to the present day. The Puritans rejected the form of swearing by the book as idolatrous and paganistic, and from shortly after the advent of the charter it was unknown in the Bay colony until the days of Andros.

Prior to 16S0, the general court of the Bay colony had several times put the press under censorship. On October 19, 1664, it provided as follows:

"For the preventing of irregularitjes & abuse to the authority of this country by the printing presse, it is ordered by this Court & the authority thereof, that there shall be no printing presse allowed in any toune wthin this jurisdiction but in Cambridge, nor shall any person or persons presume to print any copie but by the allowance first had & obteyned vnder the hands of such as this Court shall from time to tjme impower; the præsident of the colledge, Mr. John Shearman, Mr. Jonathan Michell, & Mr. Thomas Shepheard, or any two of them, to survey such copie or coppies, and to prohibitt or allow the same according

to this order; and in case of non observance of this order, to forfeit the presse to the country, & be disabled from vsing any such proffession wthin this jurisdiction for the time to come; provided, this order shall not extend to the obstruction of any coppie which this Court shall judge meete to order to be published in print." 4 Records of Mass. (Part II) 141.

This did not become a part of our law.

On October 16, 1668, the general court passed the following act, which is the foundation of the law in relation to bastardy, which has prevailed in New Hampshire to the present time:

"Whereas there is a lawe provided by this Court for punishing of fornication, but nothing as yet for the easing of tounes where bastards are borne, in regard of the poverty of the parent or parents of such children sometimes appearing, nor any rule held forth touching the reputed father of a bastard for legall conviction, it is therefore ordered, & by this Court declared, that where any man is legally convicted to be the father of a bastard child, he shall be at the care & charge to majnteyne & bring vp the same, by such assistance of the mother as nature requireth, & as the Court from tjme to tjme (according to circumstances) shall see meete to order; & in case the father of a bastard, by confession or other manifest proofe vpon triall of the case, doe not appeare to ye Courts satisfaction, then the man charged by the woman to be the father, she continuing constant in it, (especially being put vpon the reall discouery of the trueth of it in the time of hir travajle,) shall be the reputed father, & accordingly be ljable to the charge of maintenance, as aforesajd, (though not to other punishment,) notwthstanding his deniall, vnless the circumstances of the case & pleas be such, on the behalf of the man charged, as that the Court that haue the cognizance thereof shall see reason to acquitt him, & otheruise dispose of the childe & education thereof; provided always, in case there be no person accused in ye time of hir travaile, it shall not be availeable to abate the conviction of a reputed father, any law, custome, or vsage to the contrary notwthstanding." 4 Records of Mass. (Part II) 393, 394.

While New Hampshire and Massachusetts were one, the criminal code might be termed a Biblical digest as to major offences, and a police code as to minor offences, covering almost

every wrongful act of which human nature is capable, from "ante-nuptial defilement," to "taking too much tole."

By the code of 1646, fifteen offences, to wit, idolatry, witchcraft, blasphemy, murder in the first degree, murder in the second degree, poisoning, bestiality, sodomy, adultery, man-stealing, false witness for the "purpose to take away a man's life," conspiracy, rebellion, cursing or smiting of parents by children, and being a rebellious son, were punishable with death. Afterwards other offences were included in this Draconian code. Arson, blasphemy by pagans, rape of a child, and treason, were made punishable with death. In 1649, rape of a woman above

ten

years was made punishable with death, or some other grievous punishment. The punishments for violation of the criminal code were death, imprisonment, banishment, disfranchisement, servitude, slitting of the nostrils as far as it could be done, fine, standing in the pillory, stocks, and in the market-place, arrayed in a sheet, with the words, "Cheat," "Drunkard," and various others, written in large letters, branded on the forehead or wrought into their garments, or with the scarlet letter "A," or Roman letters "P," "R," "D," "F," "B," and many others, stitched upon or wrought into their clothing, confinement in the bilboes, fastening a cleft stick upon the tongue, sitting upon the "lather," with a rope thrown around the gallows. Riding upon the wooden horse till the blood ran, was one of the many penalties for military offences; strappado, or dislocation of the joints, was another. 5 Records of Mass. 50. The favorite punishment, however, was the "beech seal,"-whipping men and women upon the naked back from ten to forty blows, and until the blood ran. This was generally done in the market or other public place.

A coat of tar and feathers has for centuries been regarded by Englishmen and their descendants as a righteous but infamous punishment for the brutal conduct of husbands to wives, and for shameless social sins. This punishment was first imposed by an act passed in the first year of the reign of Richard the First, A. D. 1189. This act provided that any robber found voyaging with the crusaders "shall be first shaved, then boiling pitch shall be poured upon his head and a cushion of feathers shook over it." He was then to be put on shore at the very first place