Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/386

 372 ni. THE COLONIAL PERIOD ^ I. NEW ENGLAND Y Massachusetts The ideas of the Massachusetts colonists on the matter of law appear very clearly from a resolve of the general court ^ of the year 1636. The government is there entreated to make a draft of laws " agreeable to the word of God " to be the fundamental laws of the commonwealth. This draft is to be presented to the next general court. In the mean- time, the magistrates are to proceed in the courts to deter- mine all causes according to the laws then established (the early laws of the general court), and where there is no law is also empowered to make orders for the general conduct of business which is not yet covered by any law, and herein to apply its best discretion according to the rule of God's word. There is here absolutely no reference to the common law of England. As a subsidiary law the word of God is appealed to, as interpreted by the best discretion of the magistrates. This led to the administration of a rude equity, according to the idea of justice held by the magis- trate, influenced by popular ideas and customs. With a homogeneous population holding the same general views on morals and polity, a true popular system of law could thus be produced, unrefined by juristic reasonings, untrammeled by technical precedents, satisfying, in general, the sense of right in the community. Should, however, alien elements intrude, they would find such a system exceedingly uncon- genial and oppressive. We find that in the early years of the colony the magis- trates and persons in authority were intensely reluctant to have any written laws made, because by these their discretion would be restrained. The reason assigned by Winthrop ^ for this reluctance was the desire to have laws grow up by custom, so as to have them adapted to the nature and dis- position of the people, which could not be sufficiently known to the magistrates properly to legislate for them. A second » John Winthrop's History of New England, 322.
 * ' then as near the law of God as they can." The council
 * Massachusetts Colonial Records, I, 174.