11. REINSCH: COLONIAL COMMON LAW 373 reason was that the charter provided that the colonists should make no laws repugnant to the laws of England. This they held to refer to positive legislation. The growth of law by custom, though the product might be radically opposed to English principles, they believed no infringement of the charter. Notwithstanding these reasons of the magis- trates, the general court insisted upoirf having a compre- hensive body of laws made. The controversy had none of the acrimony of the similar struggle for written laws in Rome before the Twelve Tables ; but we can note the same principles at work ; the magistracy, in whose discretion the administration of the laws has so far been founded, are reluctant to give up a part of this power, and therefore resist a codification of law The outcome of this agita- tion was the passage of the celebrated Body of Liberties,^ in 1641. To evade one of the objections noted by the magis- trates, this code was not reafly enacted as law, but the general court did " with one consent fully authorize and earnestly entreat all that are and shall be in authority to consider them as laws." The laws had been prepared by Nathaniel Ward, a minister with some legal training. They had been revised by the general court and sent into every town for further consideration. Upon the suggestions thus gathered they were again revised and then established as above mentioned. A more careful process of legislation is perhaps nowhere recorded. The laws may therefore be looked upon as a full expression of the popular sense of what the legal relations in the colony should be. Ward, in a letter to Governor Winthrop,^ December 22, 1639, questions the advisability of submitting the laws to the different towns for consideration by the freemen thereof, and fears that the spirit of the people might rise too high. They should not be denied their proper and lawful liberties, but he questions " whether it be of God to interest the in- ferior sort in that which should be reserved ' inter optimates penes quos est sancire leges.' " Turning now to the Body of Liberties itself, we find
- Winthrop's Journal, Ed. 1790, p. 237,
- Massachusetts Historical Collections, Series IV, vol. VII, 26.
