here without question until the arbitrary mandates of Cranfield, Barefoote, and Andros. This act or ordinance is to be found in the printed records, but not among the fifty-eight laws of the third volume of the provincial papers. Thirty-one laws are to be found which are commonly reputed to have been passed prior to 1696. These are, in general, fragmentary, but a poor substitute for a comprehensive code, and, it is apparent, were largely framed as a consequence of particular emergencies. The records of the council and assembly show that quite a number of laws were passed not included in this list, and quite as important in their character. No reason has ever been given, so far as known, why one set was published and the other not. Whether any of these were allowed or disallowed by the crown is more than debatable. Upon this point there would seem to be no evidence this side of the water.

At the November session, 1695, the lieutenant-governor proposed to the assembly,—

"Having at your first sitting proposed for raising of money for passing of yor laws in England, least by reason of want of due application your laws be rejected; desire your answer to the same.'

"The assembly answered, they had considered what proposed; but find the province was not capable to raise more money at present." 3 Prov. Papers (Part II) 36.

Probably owing to the expense, and because they did not want to be intermeddled with, no laws apparently were sent to the home government for the assent or disallowance of the crown until June 13, 1698, when it is apparent from the record that some laws, together with the minutes of the council, were sent to England. The proper authorities there were the law officers of the crown, whose special duty it was to pass upon the propriety or impropriety of all provincial legislation. The board comprised some of the ablest men legally and otherwise in the royal service. Yet as late as October 9, 1700, we find Pollexfen and his eminent associates advising the lords justices in respect to laws passed in New Hampshire at August session 1699, that they "cannot make a perfect Report (because of the confusion and uncertain state of the former Acts of that Province) until we receive a complete and authentic collection of the

whole, which has accordingly been required." 2 Prov. Papers 332.

Whether this record of preëxisting laws was furnished or not is a subject upon which we have no light. It is worthy of note that two laws passed in 1714 were disallowed, but that in neither case was the disallowance signified to the authorities here till 1769, a space of fifty-five years. N. H. Laws, ed. 1771, pp. 36, 42. How many similar cases there are we do not know. The published laws from 1692 to 1696 were the following: An act for the support of the government; in relation to prudential affairs of towns; defraying public charges; regulating weights and measures; allowance to representatives; shipping horses without entry; lawsuits above twenty pounds; regulating cattle, corn-fields, and fences; settling the militia; establishing courts; killing of wolves; to prevent the profanation of the Lord's day; for constables to collect rates; for raising money to support the government in repairing fortifications, etc.; for maintenance and supply of the ministry; for settling a postoffice; an additional act relating to corn-fields and fences; concerning marriages, births, and burials; to ease people that are scrupulous in swearing; to pay for copies of the laws; to prevent concealing of estates from assessors; raising money for support of government in repairing fortifications, and making provision for soldiers; to compel constables to do their duty in collecting rates; for settling and distributing of intestate estates and such as prove insolvent; renewing and continuing an act for the establishment of a revenue; for the encouragement of the post-office; in relation to the acknowledgment of deeds; against gaming; altering the sessions of the supreme court; restraining inhuman severities; and to prevent seamen from neglecting their duty.

The act of October 21, 1693, in relation to the settling of insolvent estates, is in its essential features what the law now is. It is not, however, included in the Russell edition.

The act for establishing courts of judicature was necessarily based upon the assumption that none existed; that those created by the usurpation and since had passed away with the state of things that gave them existence. Like that under the usurpation, it provided for a court of chancery, but apparently none

was created.

Whether this act ceased to exist with the advent of Belmont, under his commission, is not clear; but if not, the subject-matter was so fully revised by the act of August 17, 1699, that it must be deemed to have been repealed by implication. The act in relation to town officers savored of that under the usurpation. The provision against lawsuits above twenty pounds shows very distinctly the depressed condition of the province.

The year 1696 constitutes an era in our provincial legislation. It is almost self-evident, that, with a few exceptions, no human being in 1692 knew or now knows what former laws were still in force. The first laws put in print were those of 1704. On December 3, 1715, a committee was appointed "to supervise ye laws of this Province, & collect them into a body to be printed." The result of this is what is known as the Russell edition of the Province Laws of 1716, comprising about sixty pages. To this edition additions were made till 1726, when it comprised one hundred and sixty-three pages. It is impossible now to tell whether they rejected all the laws passed prior to 1696 upon the ground of economy in space and money, or because they had expired by their own limitation, or had worn out or ceased to exist, or because their commission operated as a repealing act, and swept out of existence all preëxisting statutes. There probably has never been a question on which able men, and especially jurists, have so differed as upon this, and the consequences of this darkness have been grievously felt upon the great questions which have agitated the court during the last ten years.

The edition of 1771 is based upon the Russell edition. It excluded only seven laws of that edition and its appendix.

In 1696 at least six laws were passed, to wit, an act in relation to administering the oaths to all male persons sixteen years old and upwards; for the payment of the care of wounded soldiers; for settling a ferry; for the continuance of the law about post; for reviving and continuing the impost and excise; and for raising 600 pounds for payment and subsistence for soldiers. None of these except the first appear in Russell.

In 1697 at least nine laws were passed, to wit, an act to prevent damages by horses; for raising 650 pounds subsistence,

and pay of soldiers; in relation to excise; in relation to records; for allowing more houses of entertainment; in relation to the prison; for raising 300 pounds to defray the charge of the province; for continuing the impost and excise, &c., and in relation to trespasses in cutting down trees, &c. Of these only the first is to be found in Russell. This act was really a substitute for, or a reënactment of, the substance of section 4 of the Cutt code of civil laws.

In 1698 at least six acts were passed, to wit, an act for raising 400 pounds towards the province charge; for regulating officers' fees; in relation to highways; in relation to constables; in relation to births, burials, and marriages; and in relation to courts. None of these are to be found in Russell.

In 1699 at least five acts were passed, to wit, an act to return able and sufficient jurors to serve in the several courts of justice, and to regulate the election of representatives; for establishing courts of justice; for a tax or assessment of 500 pounds; for punishing pirates and privateers; and in relation to excise, impost, and powder money, or tonnage of shipping. Only the first two of these are to be found in Russell.

The act establishing courts of justice has already been commented upon. An earnest attempt was made to restore that part of the provision in the Cutt code providing that jurors should be chosen in town-meeting. The governor opposed it for the reasons assigned in the Cranfield code, and in consequence the new law in that respect was but a reënactment of the Cranfield code.

No one could sit as a juror unless he had an estate of freehold worth forty shillings per annum at least, or fifty pounds sterling in personal estate. Neither the Cutt nor the Cranfield code had prescribed any property qualification for jurors, but by the last section of the act of March 3, 1686, no person could be returned as juror unless "worth in real or personal estate to the value of fifty marks." The Cutt code had prescribed tests as to age and property for electors of members of the assembly. Whether these tests had been observed in all subsequent elections of assembly-men, it is impossible to determine on any evidence this side of the water. But this act of 1699 provided that no person other than freeholders of the value or income of forty

shillings per annum, or upwards, in land, or worth fifty pounds sterling, at the least, in personal estate, "should be capable of being elected to serve in the general assembly." Whether the framers intended that the Cutt code and this statute should be construed together, or that the Cutt code, or some other law or usage should govern as to age, is equally uncertain. It is hardly to be presumed that the framers of this legislation intended that a child in its mother's arms, because a freeholder, etc., might vote, or be elected to the legislature.

At least two acts were passed in 1700, to wit, an act for the better observation and keeping of the Lord's day, and an act for settling a ferry. Only the former appears in Russell. Precisely what the effect of this act may have been on the act of August 5, 1693, is not quite clear. In general, the first may be said to have answered to a declaration, and the latter to a bill of particulars. The former is a substantial transcript of section IO of the Cranfield code.

In 1701 at least sixteen laws were passed, to wit, an act to prevent impounding of cattle wrongfully; against adultery and polygamy; against trespassing in town commons; for aiding and assisting sheriffs, constables, &c., in executing their office; for regulating tanners, curriers, etc.; for punishing criminal offenders; in relation to recording deeds and conveyances; for regulation of seamen; for taking affidavits out of court; for regulating trials in civil causes; for raising three hundred pounds; in relation to insolvent estates; for repairing of highways; confirming town grants; for raising 550 for defraying public charges; to prevent contention concerning the bounds of towns. Only the first ten of these are to be found in Russell.

Comment has heretofore been made upon the act in relation to adultery and polygamy. The act for aiding sheriffs, etc., was an amplification of the provision in the Cutt code, but with a provision that in the absence of act sheriffs, etc., a justice might command assistance for the apprehension of criminals, and for the punishment of whoever falsely personated any sheriff or constable.

The act for punishing criminal offenders provided punishment for cursing and swearing, drunkenness, theft, fornication,