CHAPTER XIV
Crimes and Punishments
The men who controlled the affairs of the Massachusetts Bay Colony at the time of its founding, determined not only that the churches, but that the government of the commonwealth they were creating, should be based strictly upon the teachings of the Bible. The charter provided that the Governor, Deputy Governor and Assistants might hold courts "for the better ordering of affairs," and so for the first ten years, the Court of Assistants, as it was styled, exercised the entire judicial powers of the colony. Its members were known as the magistrates. During this period but few laws or orders were passed. When complaints were made, the court, upon a hearing, determined whether the conduct of the accused had been such as in their opinion to deserve punishment, and if it had been, then what punishment should be inflicted. This was done without any regard to English precedents. There was no defined criminal code, and what constituted a crime and what its punishment, was entirely within the discretion of the court. If in doubt as to what should be considered an offence, the Bible was looked to for guidance. The General Court itself, from time to time, when in doubt, propounded questions to the ministers or elders, which they answered in writing, much as the Attorney General or the Supreme Judicial Court at the present day may advise.
But the people soon became alarmed at the extent of personal discretion exercised by the magistrates and so, in 1635, the freemen demanded a code of written laws and a committee composed of magistrates and ministers was appointed to draw up the same. It does not appear that much was accomplished although Winthrop records that Mr. Cotton of the committee, reported "a copy of Moses his judicials, compiled in an exact method, which was taken into further consideration till the next general court." The "judicials," however, never were adopted. In 1639 another committee was directed to peruse all the "models" which had been or should be presented, "draw them up into one body," and send copies to the several towns. This was done. In October, 1641, action was taken which led to a definite and acceptable result. Rev. Nathaniel Ward of Ipswich, who had been educated for the law and had practiced in the courts of England, was requested to furnish a copy of the liberties, etc. and nineteen transcriptions were sent to the several towns in the Colony. Two months later at the session of the General Court, this body of laws was voted to stand in force.
This code, known as "the Body of Liberties," comprised about one hundred laws, civil and criminal. The civil laws were far in advance of the laws of England at that time, and in substance were incorporated in every subsequent codification of the laws of the Colony. Some of them are in force today, and others form the basis of existing laws. The criminal laws were taken principally from the Mosaic code and although many of them may seem harsh and cruel yet, as a whole, they were much milder than the criminal laws of England at that time. No reference was made to the common law of England. All legislation in regard to offences was based upon the Bible, and marginal references to book, chapter and verse were supplied to guide future action. This Code served its intended purpose well and remained in force until the arrival of the Province charter in 1692 save during the short period of the Andros administration.
The judiciary system of the Colony therefore provided for the following courts:
First, the Great and General Court which possessed legislative powers and limited appellate authority from the Court of Assistants.
Second, the Court of Assistants—a Supreme Court or Court of Appeals that had exclusive jurisdiction in all criminal cases extending "to life, limb, or banishment," jurisdiction in civil cases in which the damages amounted to more than £100., and appellate jurisdiction from the County Quarterly Courts.