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the vessel came to, no matter how inhospitable it might be. There is no evidence that this penalty was ever recognized as legal by the early colonists, perhaps because it had no warrant in the Jewish law.

The third period extends from the time of the Cutt commission, which lasted about two years and nine months, and under which New Hampshire began her provincial life, and until after the adoption of the Cranfield code at the November session, 1682. Up to the latter time, with two possible exceptions, there are no traces of English law, either statutory or customary.

The Cutt commission passed the great seal September 18, 1679, and was delivered to the president and council named therein on January 1, 1680. On January 14, 1680, the commission was duly read by the president. Policy prevailed by major vote, and on January 21, 1680, after great consideration, the commissioners were duly sworn in, and the new government went into operation.

On January 22, 1680, after due notice, the people convened, and the commission was read to them at Portsmouth. Due proclamation was then made, and an order was sent to each of the towns, requiring all officers, civil and military, to attend to the duties with which they had been intrusted until further order. On February 4, 1680, the selectmen of these four towns were required to return to the council, by February 16, 1680, "A list of the names and estates of their respective inhabitants.”

On February 16, 1680, the president and council provided for the abatement of the taxes of persons "aggrieved" by the war tax, by "overrating or otherwise respecting to that concern," and made the first check-list in New Hampshire for the town-meetings to be held on March 1, 1680, at nine A. M., for the choice of deputies, or, as we should say, representatives to the general assembly to be held at Portsmouth, March 16, 1680, at nine A. M.

The royal commission gave the president and council the arbitrary power "to judge and determine what persons" should be allowed to vote, and they did so order. It is notorious that this arbitrary tendency of check-list boards in New Hampshire

has been very marked down to the present day. This checklist shows that Portsmouth had 71, Dover 61, Hampton 57, and Exeter 20, in all, 209 qualified voters, which, at the average rate at the present time, in rural towns, would make the entire population of New Hampshire, on February 16, 1680, about 700.

The legislative session began March 16, 1680, and was afterwards, on April 1, adjourned to June 7, 1680, and about June IO was adjourned to October 12, 1680, when Richard Martin, Esq., Samuel Dudley, Seaborne Cotton, and Elias Stileman were chosen a committee "for the drawing up all the laws made by this assembly as near as may be according to the laws of England and will suit with the constitution of this province." The return of the committee was put on file, and the assembly then adjourned to Thursday, December 7, 1680.

There probably was never a greater mockery of language than this vote. It shows that the council and assembly had been passing laws from time to time; that they had disregarded the English practice in framing legislation, and had adopted that which had prevailed in Plymouth and the Bay colony. The practice in these colonies in this respect had not been entirely uniform, but in general they had passed laws and then put them into the hands of a committee to be put into form for publication. In this way it sometimes happened that the law as passed and the law as made by the committee differed materially.

When codes were adopted, a somewhat different practice prevailed. The general court gathered together a variety of propositions, and sent them out to the churches and towns for amendment. These were recast by one of its most learned magistrates, who had been trained in the inns of chancery or of court, and in this way one or more of the codes in the Bay colony were adopted. Our code of 1680, if the Jewish law was to be made the basis of our jurisprudence, was in many respects a model code. It is simply impossible that it could have emanated from the minds of the committee. It shows upon its face the handiwork of some skilled draftsman who was not only familiar with jurisprudence in general, but was a master of the law and practice in the New England colonies, and particularly that of Plymouth. The vote was that the committee

should draw up these laws "as near as may be according to the laws of England." The 14th section of the Cutt code of general laws provided that the former law and practice, both in civil and criminal proceedings, should be the "rule" "vntill such acts and ordinances as have beene or shall be made by this assembly and approved by ye hond presdt and council, may be drawne up and legally published."

The code which they adopted disregarded almost every vestige of the English law, and substituted for it the Jewish law, common and biblical, as modified by the body of liberties and the ordinances of Plymouth, with here and there an instalment or a trace from Massachusetts, and all modified by the brain of the draftsman, whoever he was.

Cutt and nearly all his officers had been for many years the "instrumentalities" by which the Bay colony had governed New Hampshire. Their honors and "the flesh pots of Egypt" had come from the masters whose servants they were; and yet this code, which assumes to be their handiwork, trampled under foot substantially all of the Massachusetts law under which they had been reared and with which they were familiar.

The code may be divided into four parts. The first, after a perfumed preamble, sets forth that "it is therefore ordered and inacted by this Generall Assembly and the authority thereof, that no Act, Imposition, Law or Ordinance be made or imposed upon us but such as shall be made by the said Assembly and approved by the Presidt and Councill from time to time. That Justice and Right be equally and impshally administered vnto all not sold, denied or causelessly deferred unto any." I Prov. Papers 382, 383.

This was in substance the Plymouth declaration in the preamble of 1636 intensified. II Plymouth Col. Rec. 6.

For frosty audacity this has hardly a parallel in history. The king had created New Hampshire into a province, and established its form of government in pursuance of his undoubted authority.

The first code of laws starts out with the proposition that no law shall be made or imposed upon us except such as are

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enacted by the president and council from time to time.

The second part comprises sixteen capital offences. Of these, eleven,-idolatry, blasphemy, treason, wilful murder, manslaughter, murder "through guile," witchcraft, beastiality, buggery, false witness for the "purpose to take away a man's life," and cursing of parents by children,-were punishable with death; while five,-public rebellion, man stealing, being a rebellious son, rape, and arson,—were punishable with death or some other "greivous" punishment, and the same punishment under the third part of the code was provided upon the third conviction for burglary and robbery, making in all seventeen offences for which the death penalty might be imposed.

The code does not define what is meant by grievous punishment. The military code of the Bay colony defined it to mean, among other things, "disgraceing by casheiring," "the strappadoe, or riding the wooden horse to fetch blood." 5 Records of Mass. 50.

Other punishments were undoubtedly regarded as grievous, both by the courts and by the people.

The Bay colony, on May 15, 1672, passed a law primarily to punish scolding women. It was as follows:

“Whereas there is no express punishment (by any lawe hitherto established) affixed to the evill practise of sundry persons by exhorbitancy of the tongue in rayling & scolding, it is therefore ordered, that all such persons convicted, before any Court or magistrate that hath propper cognizance of the case, for rayling or scolding, shall be gagged or sett in a ducking stoole & dipt ouer head & eares three times, in some convenient place of fresh or salt water, as the Court or magistrate shall judge meete.” 4 Records of Mass. (Part II) 513, 514.

We have no evidence that this became any part of our customary law.

The New Hampshire ladies guilty of "exhorbitancy of the tongue" at the present day would undoubtedly regard this punishment as grievous, though the Massachusetts women of the olden time may not.

The Cutt code did not treat the erection or maintenance of "stews" as a crime; but on May 15, 1672, the Bay colony did, and provided among other things that the offender, upon conviction, should be severely whipt at the carts tajle, thro the

streets where such offenc or offences hath binn comitted, wth thirty stripes, & thence to be comitted to the house of correction, by the master of the sajd house to be kept wth hard fare & hard labour, by dayly taske, and in defect of their duty, to be seuerely whipt eury night wth ten stripes, and once at least in euery weeke the said baud hir accomplices in such vile & sinfull courses, the baud to be their leader, & the other, two & two, in hajre frocks & blew capps, by the executioner to be fastned to a hand cart, and forct along to draw all the filth lajd vpon the cart thro the streets to the seaside, going to the gallows in Suffolke, & and in all other countjes where the Court of each shire shall appoint, & so returned to the house of correction, to be alike kept wth hard fare & labour, according to the custome of the house, during the Courts pleasure there to remajne." 4 Records of Mass. (Part II) 513.

Such punishments were certainly severe, and our ancestors may have deemed them "greivous."

The third part comprised 27 criminal laws. Several of these relate simply to procedure. As I view it, this code created and provided for the punishment of at least 25 crimes,—to wit, adultery, fornication, ante-nuptial defilement after contract and before marriage, burglary, robbery, larceny of ships, etc., attempts at such larceny, larceny of money and other chattels, petty larceny, profanity, habitual profanity, profaning the Lord's day, contempt of God's word and ministers, forcible detainer of possession, conspiracy against the province and defamation of its magistrates, forgery of deeds, defacing and embezzlement of records, attempt to corrupt officers, lying, burning fences, breaking down fences, removing or defacing land-marks, unlawful gaming in public houses, playing at cards, with dice, or any game in which there is a lottery, drunkenness, firing of woods between the first of March and the first of May.

The code did not fuse the crimes of burglary and robbery, but affixed the same penalty to both. The offender, for the first offence, was to be branded on the right hand with the capital letter B. For the second offence, to be branded on the other hand and be severely whipped. If committed on the Lord's day, the brand was to be set upon his forehead. For the third

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