the discretion of the court.

The distinction between the two was preserved by section 3 of the Cranfield code, but was probably repealed by implication by section 4 of the act of June 14, 1701, which remained in force until June 20, 1792. But it was so thoroughly engraven in the minds of the court and people that it was recognized in fact as late as 1727 under the head of "ante-nuptial defilement." This is abundantly shown by Judge Smith's Old Records, by the fragmentary records of the court of sessions, by the papers in the files of the old court of appeals at the state-house, and by the musty volumes of church records.

The pith of the provision in the Cutt code in relation to lying was affirmed by section 8 of the Cranfield code, and, with some modification as to age, was reaffirmed by section 6 of the act of June 14, 1701, and remained in force until it was repealed by the act of June 20, 1792.

There were other radical differences between the criminal laws of New Hampshire and Massachusetts.

The Bay colony sometimes put sinners and those who professed to be saints on the same basis. In Massachusetts they hung witches whether they professed Christianity or not, but the Cutt code limited the punishment to "any Christian, soe called."

The Bay colony punished rebellion with death; the Cutt code, with death or some other grievous punishment.

The Bay colony punished blasphemers whether they professed Christianity or not, but the Cutt code only those "professing ye true God."

Although almost the entire criminal code of 1680 was taken from the laws of Plymouth, the framers of the Cutt code did not transcribe everything bodily.

Strange as it may seem, as early as 1654 the "benefit of clergy," by which whoever could write upon being burned in the hand was set free, was recognized by the authorities of the Plymouth colony. In that year Robert Latham, convicted of manslaughter, was burned in the hand. 3 Plymouth Records

73.

New Hampshire took many things from Plymouth. Whether she took that mockery of reason and relic of barbarism, the benefit of clergy, from Plymouth or from some other source, is as

yet unknown. Soon after the division into counties, a son slew his father in the town of Hollis. He was indicted, arraigned before the four judges of the highest court, pleaded his clergy, was burnt in the hand, and went out of court a free man. The burning, as a rule, was so slight, that it was, if possible, a greater farce than such a plea.

On December 25, 1775, John Patten, of Chester, struck my great grandfather, Thomas Shirley, with the heel of an old scythe, whereof he died, in charge of Dr. Wood, of Londonderry, February 1, 1776. Patten was indicted for manslaughter, tried at the September term, 1776, was convicted, and, upon claiming his clergy, was burned so slightly in the hand, that although he had a physician present for that purpose, Patten had no occasion for his services, and went out of court a free man.

The fourth part, which may be termed the civil code, comprising forty-five laws, occupies more space than all the rest. It provides for confirming grants in townships; that controversies in respect to real estate shall be determined by a jury of twelve men, chosen by the freemen of each town; that contracts shall be paid in kind, as "bargained for;" that horses going at large shall be branded, and shall be clogged or fettered at certain seasons; for the establishment of courts; that all trials shall be by jury; that jurors may be challenged for good cause; that in matters of life and death the prisoner shall have six or eight peremptory challenges; that any member of the council may join persons in marriage; that parties before marriage shall be three times published.

It further provides for the making of rates for the taking and equalization of inventories; that a list of males sixteen years of age and upwards, and valuation of their estates, shall be taken. It provides that a bounty shall be paid for killing wolves; that the former laws shall govern till new ones are passed and published; that if constables fail to collect the taxes, they shall pay them out of their own estates; that whosoever refuses to pay his taxes or to expose property to the constable, may, for his default, be imprisoned till he pays or furnishes good security. It fixes the marshal's fees for poundage and otherwise; provides that he shall collect the fines; may require assistance

upon demand, make levies, and take the person in default of property.

It further provides that fines shall be paid forthwith; that neither judges nor jurors shall sit in civil causes, who are nearly related to either party; that except for capital crimes or contempt in open court, no person before sentence shall be imprisoned who will give sufficient bail. It provides for the service of process by summons or copy, &c.; that the freemen of each town shall choose all officers, jurors, etc., and shall regulate town affairs; that towns may choose prudential officers; that no person shall cast ballast into rivers or harbors; that no person under twenty-one years of age can convey his real estate or sue in his own name, but may choose guardians at the age of fourteen; that parents and masters may prosecute or defend the rights of children or servants, and that in all criminal proceedings any person may complain to any court, member of the council, or grand juryman; that attachments may be granted by any member of the council or clerk of "ye writs ;" that the summons and attachment shall be served six days before court; that the cause of action shall be briefly described, and the capacity in which the plaintiff sueth; that if the plaintiff or defendant fail to appear, he may be defaulted or nonsuited, as the case may be; that the attachment shall be held good against the defendant and his surety for one month after judgment; that no marshal or constable shall take as bail one who is not a settled inhabitant, and has a "visible Estate to be Responsible;" that a judgment may be acknowledged by any party before two of the council, &c.; that any person presented who fails to appear may be treated as in contempt; that any plaintiff may withdraw his action before the verdict upon payment of the full cost; that any person may be punished who harasses another with vexatious suits or complaints; that all parties may review any suit as a matter of right, three times; that innkeepers shall sell no strong drink to servants or children, without leave of the parents or masters. It further provides that any person who resides in town three months without being warned out, shall have a settlement there; that paupers sent from one town into another shall be at the charge of the town from which they were sent; that no person can bring in or entertain strangers from without the province

without leave; that constables shall warn all freemen's meetings to choose deputies; and that twenty shillings in money shall be paid for the entry of appeals from the quarter courts. The Cutt commission makes the following provision in relation to religious liberty:

"We do hereby require and comand yt liberty of conscience shall be allowed unto all protestants; yt such especially as shall be conformable to ye rites of ye Church of Engd shall be particularly countenanced and encouraged." The Cranfield and Andros commissions put the word "will" before "require," but make no other change.

This royal command deprived the Catholic of religious liberty in New Hampshire. Following the mandate of the king, the Cutt code provided,

"Yt all Englishmen, being Protestants, yt are settled Inhabitants and freeholders in any towne of this Province, of ye age of 24 years, not viceous in life but of honest and good conversation, and such as have £20. Rateable estate wthout heads of persons having also taken the oath of allegiance to his Majs, and no others shall be admitted to ye liberty of being freemen of this Province, and to give theire votes for the choice of Deputies for the Generall Assembly, Constables, Selectmen, Jurors and other officers and concernes in ye townes where they dwell.”

To these mandates in the commissions and those in relation to taking the oath against Popish recusants, and for adjuration and supremacy, and the sentiment engendered thereby, we are probably much more indebted for the provision expunged from our constitution by the people in 1877, which prohibited Catholics from holding certain public offices, than from any fear of French invasion or the other reasons usually assigned for it.

The fact that this provision was from the outset treated as a dead letter, even in the most exciting partisan contests, shows how little support it had among the great mass of fair-minded and right-thinking people.

The property qualification originated in the same way, and shared the same fate, about twenty-five years earlier.

The mandate of the Cutt commission was as follows: "And our will and pleasure is, and we do hereby declare, ordain, and grant, that all and every such Acts, Laws and ordi

nances,, as shall from time to time be made in and by such general Assembly or Assemblies, shall be first approved and allowed by the Pres. and Councell for the time being, and, thereupon shall stand and be in force untill ye pleasure of us, our heirs and successors, shall be known, whether ye same Laws and ordinances shall receive any change or confirmation or be totally disallowed and discharged.

"And therefore, our will and pleasure is, that ye Pres. and Councell do, and shall from time to time transmit and send over unto us, our heirs and successors, and our and their Privie Councell for the time being, all and every such Acts, Laws and Ordinances, by the first ship yt shall depart thence for Engd, after their making."

That of the Cranfield commission was,

"That all such laws, statutes and ordinances, of what nature and kind soever, be within three months or sooner after the making of the same, transmitted unto us, under the public seal, for our allowance and approbation of them, as also duplicate thereof, by the next conveyance, and in case all or any of them, being not before confirmed by us, shall at any time be disallowed and not approved and so signified by us, our heirs and successors under our or their sign manual and signet, or by order of our or their privy council unto you, the said Edward Cranfield, or to the Commander-in-Chief of our said Province for the time being, then such or so many of them as shall be so disallowed and not approved shall from henceforth cease, determine and be utterly void and of none effect, any thing to the contrary notwithstanding."

The question has been mooted under this and other commissions, whether the king had power to disallow after an allowance. We have Judge Smith's views upon this point, but as the evidence now stands, the point is probably immaterial.

Cutt, sick, infirm, and incompetent, was but a figure-head from the outset. He died March 27, 1682. The Bay colony, in the person of Waldron, took his place and retained his power, until Cranfield seized the reins on October 4, 1682.

The Cutt code made no special provision for the election of deputies for future assemblies, nor for convening the same. The governor and council, in their act for calling the first general