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This frequently renders it difficult to detect the link which connected the emigrants with the land of their forefathers, in studying the earliest historical and legislative records of New England. They perpetually exercised the rights of sovereignty; they named their magistrates, concluded peace or declared war, made police regulations, and enacted laws, as if their allegiance was due only to God.[28] Nothing can be more curious, and at the same time more instructive than the legislation of that period; it is there that the solution of the great social problem which the United States now present to the world is to be found.

Among these documents we shall notice as especially characteristic, the code of laws promulgated by the little state of Connecticut in 1650.[29]

The legislators of Connecticut[30] begin with the penal laws, and, strange to say, they borrow their provisions from the text of holy writ.

"Whoever shall worship any other God than the Lord," says the preamble of the code, "shall surely be put to death." This is followed by ten or twelve enactments of the same kind, copied verbatim from the books of Exodus, Leviticus, and Deuteronomy. Blasphemy, sorcery, adultery,[31] and rape were punished with death; an outrage offered by a son to his parents, was to be expiated by the same penalty. The legislation of a rude and half-civilized people was thus transferred to an enlightened and moral community. The consequence was, that the punishment of death was never more frequently prescribed by the statute, and never more rarely enforced toward the guilty.

The chief care of the legislators, in this body of penal laws, was the maintenance of orderly conduct and good morals in the community: they constantly invaded the domain of conscience, and there was scarcely a sin which they did not subject to magisterial censure. The reader is aware of the rigor with which these laws punished rape and adultery; intercourse between unmarried persons was likewise severely repressed. The judge was empowered to inflict a pecuniary penalty, a whipping, or marriage,[32] on the misdemeanants; and if the records of the old courts of New Haven may be believed, prosecutions of this kind were not infrequent. We find a sentence bearing date the first of May, 1660, inflicting a fine and a reprimand on a young woman who was accused of using improper language, and of allowing herself to be kissed.[33] The code of 1650 abounds in preventive measures. It punishes idleness and drunkenness with severity.[34] Innkeepers are forbidden to furnish more than a certain quantity of liquor to each customer; and simple lying, whenever it may be injurious,[35] is checked by a fine or a flogging. In other places, the legislator, entirely forgetting the great principles of religious toleration which he had himself upheld in Europe, renders attendance on divine service compulsory,[36] and goes so far as to visit with severe punishment,[37] and even with death, the Christians who chose to worship God according to a ritual differing from his own.[38] Sometimes indeed, the zeal of his enactments induces him to descend to the most frivolous particulars: thus a law is to be found in the same code which prohibits the use of tobacco.[39] It must not be forgotten that these fantastical and vexatious laws were not imposed by authority, but that they were freely voted by all the persons interested, and that the manners of the community were even more austere and more puritanical than the laws. In 1649 a solemn association was formed in Boston to check the worldly luxury of long hair.[40]

These errors are no doubt discreditable to the human reason; they attest the inferiority of our nature, which is incapable of laying firm hold upon what is true and just, and is often reduced to the alternative of two excesses. In strict connection with this penal legislation, which bears such striking marks of a narrow sectarian spirit, and of those religious passions which had been warmed by persecution, and were still fermenting among the people, a body of political laws is to be found, which, though written two hundred years ago, is still ahead of the liberties of our age.

The general principles which are the groundwork of modern constitutions--principles which were imperfectly known in Europe, and not completely triumphant even in Great Britain, in the seventeenth century--were all recognised and determined by the laws of New England: the intervention of the people in public affairs, the free voting of taxes, the responsibility of authorities, personal liberty, and trial by jury, were all positively established without discussion.