Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/389

 11. REINSCH: COLONIAL COMMON LAW 375 England and there reputed to be in force in the colony, was never enacted at all by the general court. The concep- tion of law current among the Puritans is well illustrated by the remark of Cotton that he should not " call them laws because God alone has the power to make law, but conven- tions between men." This theory of law as the command of God, the mediaeval conception uncolored by the modern views of sovereignty, seems to have been firmly held by the Puri- tans of New, as of Old England. ^ The same view in addition to the reasons cited above may have prompted the general court not to call the Body of Liberties laws, but to pass them in the form of recommendations. Turning now to the practice of magistrates and courts in the actual conduct of cases we shall find the same principles universally acknowledged. Everywhere, the divine law, inter- preted by the best discretion of the magistrates, is looked upon as the binding subsidiary law ; while the common law is at most referred to for the sake of illustration. In 1641, the court had under consideration the case of the rape of a small child. There was a great question as to what kind of sin it was, and the court " sought to know the mind of God by the help of all the elders of the country." On the authority of Deuteronomy XVII, 12, it was held in. another case that presumptuous sins were not capital unless committed in open contempt of authority ; and, in connection with this, Winthrop remarks that the " only reason that saved their lives was that the sin was not capital by any express law of God, nor was it made capital by any law of our own." In the same connection, Winthrop discusses the exaction of a confession from a delinquent in capital cases. It was decided tha.t where one witness and strong presump- tion point at the offender, the judge might examine him strictly; but if there is only slight suspicion the judge is not to press him for answer.^ After the trial in the Hing- ham matter^ the Deputy Governor stated in a public speech : " The great questions that have troubled the country • Winthrop's History of New England, II, 56, 250. » Ibid., II, 221, 228.
 * Figgis, Divine Bight of Kings, p. 223.