Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/388

 374 ///. THE COLONIAL PERIOD the doctrine stated In 1636 again announced, that no man's life shall be taken away unless by virtue of some express law established by the general court, or, in case of the defect of the law in any particular case, by the word of God. ^ The principle is thus stated in the Massachusetts fundamentals : ^ "In all criminal offenses where the law hath prescribed no certain penalty, the judges have power to inflict penalties according to the rule of God's word." The provisions of the Body of Liberties also show the theocratic nature of the Puritan colony. It contains, more- over, many provisions originated by the colonists in response to their special needs. The criminal law is founded on the code of Moses, though the breaking of the Sabbath and the striking of parents are not made capital offenses. In the laws of 1658, however, the latter offense, as well as rebellious conduct against parents is made capital.^ The law of inher- itance is taken from the Scriptures. Imprisonment for debt, except when property is con- cealed, is not in use. Any debt due in bill or specialty may be assigned, and the assignee may sue upon the same. Cases involving an amount not over forty shillings are to be heard by magistrates or a commission of three freemen without a jury. A suit is commenced by summons or attachment. Testimony may be taken in writing by any magistrate or authorized commissioner to be used in criminal or civil cases. If the party cast has any new evidence or matter to plead he can obtain a new trial or bill of review. Free tenure of lands is adopted and all feudal incidents are abolished. Convey- ances are to be by deed in writing. The period of prescrip- tion for title by possession is fixed at five years. Civil marriage is instituted. The code of Ward was not the only one prepared for Massachusetts. John Cotton also submitted to the general court a body of laws, founded throughout on the Scriptures, with references thereto.* This code, though published in • Hutchinson, State Papert, 205. • Hutchinton Papers, vol. I, 160.
 * Body of Liberties, p. 1.
 * Book of General Lawe* and Liberties, 1660, p. 8 and following.