Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol I).djvu/98

 58 to law, and according to the precept in Exodus [xxii. 8.]. Difficult cases of law were finally determinable in the Court of Assistants or in the General Court, by appeal or petition. In criminal cases where the law prescribed no penalty, the judges had power to inflict penalties "according to the rule of God's word." Treason, murder, poisoning, arson, witchcraft, sodomy, idolatry, blasphemy, manstealing, adultery, false witness, conspiracy and rebellion, cursing, smiting of parents by children, being a stubborn or rebellious son, burglary, and rape (in particular circumstances) were offences punishable with death. For the severity of some of these punishments the General Court expressly justified themselves by the language of the Scriptures. But theft was not punished with death, because, as they said, "we read otherwise in the Scriptures;" and many other crimes of a heinous nature were suffered to pass with a moderate punishment. Hutchinson has well observed, that "in punishing offences they professed to be governed by the judicial laws of Moses, but no further than those laws were of a moral nature." Marriages were celebrated exclusively by magistrates during the first charter; though afterwards there was a concurrent power given to the clergy. Divorces a mensa et thoro seem not to have been in use during the period of the first charter; but for the same causes, for which such a divorce might be granted by the spiritual courts, a divorce a vinculo was