Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/395

 11. REINSCH: COLONIAL COMMON LAW 381 In the answer by the general court ^ the petitioners are held up to ridicule for their own ignorance of what English laws they really wanted. It is then asserted that the laws of England are binding only on those who live in the Eng- lish country, for neither do the laws of Parliament nor the King's writ go any farther. " The laws of the colony," they say in substance, " are not diametrically opposed to the laws of England, for then they must be contrary to the laws of God, on which the common law, so far as it is law, is also founded. Anything that is otherwise estab- lished is not law but an error, as it cannot be according to the intent of the law-makers to establish injustice." This is the true Puritan idea of law as the command of God; the general court asserts that the common law, so far as it is law, must embody divine justice. For their part the Puri- tans prefer to go to the original source of law, the Scrip- tures. In connection with this matter the general court also made a declaration which was evidently intended for the general public and the home government.^ They there as- sert that the government is framed according to the charter and the fundamental and common laws of England. They add in brackets, " taking the words of eternal righteousness and truth with them as the rule by which all kingdoms and jurisdictions must render account." Then they make a comparison between the fundamental and common laws of England and the laws of the colony, taking Magna Charta as the chief embodiment of English common law ; and they state that, as the positive laws of England are constantly being varied to answer different conditions, they should con- sider it right to change and vary their legislation according to circumstances. They confess an insufficient knowledge of the laws of England, and say, " If we had able lawyers amongst us we might have been more exact." Their com- parison of the laws shows the rudimentary character of their knowledge. Finding some discretion allowed English judges in criminal cases they take this as a precedent for
 * Winthrop, History of New England, II, star p. 284.
 * Hutchinson Papers, 1, 197.