colonial epoch, it will run in the minds of men that, while Haynes and Wyllys, Webster, Mason, Goodwin, Steele, and others may have shared in the deliberations of the planters, and have given voice to their convictions, Hooker inspired and Ludlow framed the Fundamental Orders, men of equal honor in the professions that ruled in the colonial state, the ministry, and the law. CHAPTER XI. The Code of 1650-Ludlow's "Body of Lawes "-Requested to Draft it by General Court-The Criminal Code-Massachusetts Body of Liberties-Differences-Code Four Years in PreparationWhat it Was-Its Recognition in Legislation-Its Intrinsic Merits-Witnesses to its Authorship and Value-De Tocqueville - Trumbull - Day-Brinsley-Hamersley-Robinson Schenck-Stiles. WHATEVER question may abide as to the honor due to any man in the making of the constitution of 1639-and that Ludlow drafted it seems to be clearly shown-it is abundantly certified of record that he alone of all the eminent men in Connecticut seven years later was called upon by the General Court to frame a civil code, which ranks next to the constitution itself in the jurisprudence of the state, which to this day bears his name, and stands, in form or substance, in the present general laws. In determining the place and value of this code in history, it is always to be borne in 7 mind that the constitution vested the supreme power of the State, executive, legislative, and judicial, in the General Court, "wch shall have power to administer justice according to the lawes here established, and for want thereof according to the rule of the word of God"; and again, and from the first, the colonists in New England claimed the benefit and protection of the common law. In some particulars, however, the English common law was not suited to their condition and circumstances, and those particulars they omitted in its recognition and adoption. They also claimed the benefit of such statutes and orders as had been enacted in modification of this body of rules. At a session of the General Court, held April 9, 1646, when Edward Hopkins was Governor and John Haynes was Deputy Governor, it was ordered that "Mr. Ludlowe is requested to take some paynes in drawing forth a body of Lawes for the goverment of this Comonwelth, and p'sent the same to the next Generall Court; and if he can provide a man for his occasions while he is imployed in the said searvice, he shall be paid at the country chardge." Connecticut had already adopted a criminal code taken from that of Massachusetts, with some additions, both founded on the Mosaic law and buttressed by scriptural texts. It was probably due to this fact that some writers have ventured to charge that the Code of 1650 itself was also a compilation from Massachusetts sources—a charge which the simplest comparison instantly disproves. The Massachusetts Body of Liberties, written by Nathaniel Ward, was adopted December 10, 1641, after amendment and revision by all the lawyers of the General Court. Its provisions were chiefly taken from Magna Charta and the English common law. It contained ninety-eight sections: the Connecticut code had but seventy-seven, and several of the Connecticut laws were enacted prior to the establishment of the Massachusetts code. To be more specific, fourteen of the articles of Ludlow's code were taken from the Body of Liberties, some with slight verbal changes, and others with important additions; but sixty-three of the articles were entirely new and distinct, and related to other matters, civil and criminal. Connecticut was provided with an adequate code of civil procedure, the machinery of civil government, without modification in its primary code from Ludlow's hand. Massachusetts was not so fortunately provided, since within seven years from the adoption of the Body of Liberties the General Court found occasion to issue the Book of General Laws and Liberties, after a study of the English authorities: Coke upon Littleton, Coke upon Magna Charta, Coke's Reports, Books of Entries, New Terms of the Law, and Dalton's Justice of the Peace. The capital laws both of Massachusetts and Connecticut were remarkable in that, while under the existing English law more than forty crimes and offences were punishable by death, under these more humane and enlightened laws death waited at the door of these colonial courts only on conviction of worshiping false gods, witchcraft, blasphemy, murder, sodomy, crimes against nature, adultery, rape, kidnapping, perjury, and treason; Connecticut having an additional provision for the punishment of rebellious children. And the records of the criminal trials of the time, with the testimony elicited by the magistrates, using the methods of a French judge of instruction, demonstrate the need of the extreme penalty for the commission of the gravest crimes. In the brief record of Ludlow's engagement |