So long as this period lasts, during which the sovereign is forced to obey
the behests of the priesthood, an arbitrary despotism is inevitable; nor
can the foundation of equal justice and civil liberty be laid until first
the military, and then the legal profession, has become distinct and
emancipated from clerical control, and jurisprudence has grown into the
recognized calling of a special class.
These phenomena tend to explain the peculiar and original direction taken
by legal thought in Massachusetts, for they throw light upon the
influences under which her first generation of lawyers grew up, whose
destiny it was to impress upon her institutions the form they have ever
since retained.
The traditions inherited from the theocracy were vicious in the extreme.
For ten years after the settlement the clergy and their aristocratic
allies stubbornly refused either to recognize the common law or to enact a
code; and when at length further resistance to the demands of the freemen
was impossible, the Rev. Nathaniel Ward drew up "The Body of Liberties,"
which, though it perhaps sufficiently defined civil obligations, contained
this extraordinary provision concerning crimes:--
"No mans life shall be taken away, no mans honour or good name shall be
stayned, no mans person shall be arested, restrayned, banished,
dismembred, nor any wayes punished, .
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