had been obtained. These preparations having been completed, the jailer in company with a few individuals entered in the silence of midnight the cell where the putrescent mass was lying, placed it in a rough box-like coffin, drew it on the ground to the spot selected for interment, and consigned to its last resting-place all that remained of the once noted Chandler.

"Thus was he buried within the jail limits, and yet by a very pardonable evasion of law, beneath the consecrated soil of 'the old Westminster church-yard.""

Illustrations might be multiplied almost indefinitely. Let these suffice for the present.

The jurisprudence of New Hampshire follows her history, and must therefore be divided into periods. The first covers the time from the first" scattered beginnings," to use the phraseology of Governor Bradford, to the union with Massachusetts.

"The Shoals"-" Smith's Isles '-were discovered first. For obvious reasons they should have been the first inhabited by white men, but the date of the first settlement there seems to have been entirely unknown.

Portsmouth and Dover are commonly said to have been settled about 1623, although tradition assigns an earlier date for the advent of a few of those hardy, daring, and adventurous spirits who flock to an exposed outpost on the frontiers in obedience, as it were, to an irresistible law. The "bound house" in Hampton was erected in 1636, but that town and Exeter were settled in 1638.

"As the twig is bent the tree's inclined," is but the poetic expression of a general law. It applies to individuals and to the community of which they are a part, and of whose will they are the exponents. The man is but the child, with his powers developed and his character modified by association, training, and the hard discipline of life. This is equally true of New Hampshire as it has grown and developed step by step from these baby colonies.

Leadership is a born attribute in man. It dominates and moulds the course and conduct of others. In this respect political communities are but the reflex-the alter ego—of the men who make them what they are. In this sense a single man may constitute a town, a municipality, or a state. Here, as elsewhere, the strong dominate the weak, and often, if aggressive and unscrupulous, compel them to adopt a course alike

contrary to their true interests and their better instincts. In this way even New Hampshire has sometimes "been brought to shame," and her sons and daughters in consequence have clad themselves in sack-cloth and ashes.

New Hampshire by her early history is broadly distinguished from her sister colonies. Others at some time or times had royal charters, but New Hampshire never had. In spirit even the colony of Plymouth and that of Massachusetts Bay, similar in so many respects, were as unlike as the waters of the Mississippi and the Missouri.

The founders of Plymouth were a sturdy people. They came, as a rule, from the industrious communities, and were neither rich, cultivated, nor numerous. Though by no means perfect, they were in general sincere. While in theory they were harsh and intolerant, in practice they were far more lenient and tolerant than their younger, more thrifty, more courtly, and unscrupulous neighbors of the "Bay colony." The former were men who had suffered,-fanatical, it may be,-with marked virtues, strong passions, and human infirmities, but devoutly intent on founding the kingdom of God in the New World. The latter were a troop of grasping, crafty politicians, tolerant in speech but harsh and intolerant in act, intent on founding a pure democracy bottomed on a cast-iron religious aristocracy. The early settlers in New Hampshire had little in common with either.

From the pulpit, the bench, the bar, and the rostrum it has been said, and reëchoed in a great variety of forms, and with more or less of misty qualification, that all these brought with them the laws and institutions of the mother country. As respects New Hampshire, this was utterly false, and we shall see in the hereafter how far it was from the truth as respects the others.

The fathers did not come here to take to their hearts what they loathed, or to reënact what they hated. They did not, it is true, attempt to shake off their nominal allegiance to the British crown. Such an act could only have emanated from the bedlamites of some madhouse. Nor did they, when weighing the arguments for or against a proposed measure, ignore the lessons of British history and folk-lore law. In a word, they utilized their experience as a man whose house had been destroyed would when he came to build a new one. Beyond this they recognized but two sources of authority,—the Bible, and

their own will as expounded by the freemen or their represenThe Plymouth colonists put their Before they left the Mayflower they

We whose names are under

tatives, the general court. position beyond all doubt. drew up and signed the following compact: "In ye name of God, Amen. writen, the loyall subjects of our dread soveraigne Lord, King James, by ye grace of God, of Great Britaine, Franc, & Ireland king, defender of ye faith, &c., haveing undertaken, for ye glorie of God, and advancement of ye Christian faith, and honour of our king & countrie, a voyage to plant ye first colonie in ye Northerne parts of Virginia, doe by these presents solemnly & mutualy in ye presence of God, and one of another, covenant & combine our selves togeather into a civill body politick, for our better ordering & preservation & furtherance of ye ends aforesaid; and by vertue hearof to enacte, constitute, and frame such just & equall lawes, ordinances, acts, constitutions, & offices, from time to time, as shall be thought most meete & convenient for ye generall good of ye Colonie, unto which we promise all due submission and obedience." Bradford's History 89, 90.

This was distinctly foreshadowed by Pastor Robinson in his lengthy letter to "the whole " before they left for these shores. Bradford's History 67; II John of Barneveld 295. Both are too clear for comment.

The Bay colonists really acted on principles somewhat akin to these, but, with characteristic shrewdness and diplomatic tact, while ostensibly doing one thing they really did another. They recognized for temporary purposes something of the English law and practice. They passed a few laws and ordinances of their own. On August 23, 1630, they provided,

"That the Gouernr & Deputy Gounr, for the tyme being, shall alwaies be justices of ye peace; and that Sr Rich: Saltonstall, Mr. Johnson, Mr Endicott, & Mr Ludlowe shalbe justices of the peace for the psent tyme, in all things to haue like power that justices of peace hath in England for reformacon of abuses. and punishing of offendrs; and that any justice of the peace may imprison an offendr, but not inflict any corporall punishmt wthout the psence & consent of some one of the Assistants. Records of Mass. 74.

I

After the exhumation of the Jewish law, justices of the peace, as such, were unknown until the days of Andros.

On May 25, 1636, they took steps to establish the fundamental law of the commonwealth. They provided,

"The Gounr, Deputy Gounr, Tho: Dudley, John Haynes, Rich Bellingham, Esq, Mr Cotton, Mr Peters, & Mr Shepheard are intreated to make a draught of lawes agreeable to the Word of God, wch may be the ffundamentalls of this comonwealth, & to present the same to the nexte Genall Court." Records of Mass. 174.

I

But in the meantime, and at the same session, they provided for the temporary administration of justice as follows:

"And it is ordered, that in the meane tyme the magistrates & their assosiates shall pceede in the courts to heare & determine all causes according to the lawes nowe established, & where there is noe law, then as neere the lawe of God as they can; & for all busines out of Court, for wch there is noe certaine rule yet sett downe, those of the standing counsell, or some two of them, shall take order by their best discrecon, that they may be ordered & ended according to the rule of Gods Word, & to take care for all millitary affaires till the nexte Genall Court." I Records of Mass. 175.

Towns, churches, religious teachers, and the magistracy labored upon the embryo constitution. The matter was committed to two eminent ministers, John Cotton and Nathaniel Ward. Each framed a model. Cotton's plan, mild and beneficent for the age, was rejected. Ward's plan, after passing the ordeals named, was adopted in 1641. It comprised one hundred laws, and constituted the famed body of liberties.

Ward, who gave it its finishing touches, had passed the inns of court or of chancery, and practised law in the mother country, and of course was admirably adapted to give the doctrines of the Old Testament and the Jewish law a popular flavor. Let us see what the colonists did.

Until 1662 they did not even recognize the supremacy of the king by issuing writs in his name. They discarded the whole system of crown law, and in 1641 the general court ordered "that no man's life shall be taken away, no man's honour or good name shall be stained, no man's person shall be arrested, restrained, banished, dismembered, nor any way punished; no man shall be deprived of his wife or children, no man's goods or estate shall be taken away from him, nor any way indamaged, under colour of law, or countenance of authority, unless

it be by virtue or equity of some express law of the country warranting the same, established by a general court, and sufficiently published; or in case of the defect of a law, in any particular case, by the Word of God. And in capital cases, or in cases concerning dismembering, or banishment, according to that word, to be judged by the general court." Ancient Charters 43, 44.

For generations they rejected the benefit of clergy. They substituted for the law of England in relation to crimes the Mosaic code. They swept away the whole English law of descent and distribution, and established the doctrine of equality, but gave the eldest son a double share, in accordance with Jewish law. They made all the estates allodial. They annihilated the elaborate, artificial, subtle, and intensely complicated system of English conveyancing, and substituted another, brief, plain, and comprehensive. They discarded the whole British system for the administration of justice, and created another entirely unknown in the mother country. They provided that causes at law and in equity should be heard by the same tribunal, contrary to the English rule for centuries. They made real estate liable for debts, reconstructed the whole law of attachment, created the law of levy and extent, and established for legal purposes the sale at public vendue. They discarded the shrievalty, with its power of packing juries under the guise of selecting jurors. They substituted for this the marshalship, and election of jurors by town-meeting. They struck the Church of England under the fifth rib by making ministers elective teachers. They made marriage a civil contract, which no minister or clergyman for generations could solemnize. They rejected the doctrine of the Church of Rome and of the Church of England, the civil law, the common law, the statutory law of the mother country, and the canon law as expounded at Doctors' Commons in relation to divorce, and put it on an entirely new footing by adopting the third part of the mishna, or oral or common law of the Jews, in relation to divorce and the commerce of the sexes, and then amended the Word of God so that the county court, the courts of assistants, and the general court might grant a divorce from the bonds of matrimony, whenever any of those tribunals might deem it for the best. They invented the action of review as a matter of right, and the action of book debt, aided by the suppletory oath.