Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/390

 376 ///. THE COLONIAL PERIOD are about the authority of the magistrates and the liberty of the people. The covenant between you and us is that we shall judge you and your causes by the rules of God's law and our own." On the trial of Mr. Hubbard ^ the court told the prisoner that he was to be tried by the law of God, which the magis- trates were to judge by in case of the defect of the express law. Hubbard complained that the law of God admitted of various interpretations, and after being fined and bound to his good behavior he asked to know what good behavior was. The jury in this case found him guilty of uttering diverse speeches " tending to sedition and contempt of said govern- ment and contrary to the law of God and the peace and welfare of the country." ^ The form of punishment was largely in the discretion of the magistrates.^ Although the English names of actions were used, the practice was exceed- ingly lax, and the action on the case was constantly used for the recovery of land; thus disregarding the fundamental distinction between real and personal property and real and personal actions in the English law.* The distinctions between common law and admiralty procedure were totally disregarded. ^ In the Hutchinson Papers ^ there is preserved a very inter- esting account of a case before Symonds, a magistrate. To judge from his letters, Symonds was a careful student and great admirer of the English common law. ^ The case under consideration, Giddings vs. Brown, brought up some inter- esting questions as to the nature of law and the power of the courts. A dwelling had been voted by a town to its minister; the plaintiff had resisted the collection of the tax that had been levied to pay for this dwelling, and his goods were accordingly distrained. Symonds, in giving^ land, II, 192. 'Hutchinson Papers, Vol. II, p. 1.. . » ' Letters of Symonds to Gov. Winthrop, Massachusetts Hittoneal Bociety Collections, IV, vol. VII, pp. 124, 132.
 * Winthrop's History of New England, II, ^55.
 * Massachusetts Historical Society Collections, II, vol. IV, 110.
 * Lewis, History of Lynn, pp. 73, 81.
 * Washburn, Judicial History of Massachusetts, p. 61.
 * Case of Lady Latour vs. Bailey, Winthrop's History of New Eng-