anner, set on fire any _out-House_, _Barn_, _Stable_,
_Leanto_, _Stack of Hay_, _Corn or Wood_, or any thing of
like nature, whereby any _Dwelling House_, _Meeting House or
Store House_ cometh to be burnt, the party or parties
vehemently suspected thereof, shall be apprehended by
Warrant from one or more of the Magistrates, and committed
to Prison, there to remain without Baile, till the next
Court of Assistants, who upon legal conviction by due proof,
or confession of the Crime, shall adjudge such person or
persons to be put to death, and to forfeit so much of his
Lands, Goods or Chattels, as shall make full satisfaction,
to the party or parties damnified. [1652.][18]

[Footnote 18: Mass. Colony Laws, ed. 1672, p. 52.]

It will be observed that the law prescribes no such punishment as was
ordered by the Assistants, and how the court were satisfied of the
legality of their sentence is to me inexplicable, except upon the
possible claim that they might rightfully exercise the expansive
discretion which they applied to the case of the first Quakers, and so
supply a deficiency in the ordinances of the General Court, by
administering the _lex talionis_[19] in this particular instance as a
necessary terror to evil-doers.

[Footnote 19: Exodus xxi. 25. "In all criminall offences, where the
law hath prescribed no certaine penaltie, the judges have power to
inflict penalties, according to the rule of God's word."--Declaration
of the General Court: Hutch. Coll. Papers, p. 207. And see the first
article of the Colonial "Liberties," in Mass. Hist. Coll., vol. viii.
p. 216.]

The public opinion which permitted the colonial magistrates to
exercise, unchallenged, a discretion not given to them by positive
law, as in this case and that of the first Quakers, and in the
instance of their conviction of a capital crime, of Tom, the Indian,
in 1674,[20] of whose guilt the jury were doubtful, cannot be deemed
to have enlarged their authority, by _custom_, without a perversion of
language and a disregard of fundamental distinctions relative to the
nature and source of law.[21]

[Footnote 20: Records of the Court of Assistants, 1674, p. 14.]

[Footnote 21: By the stat. 8 Hen. VI. ch. 6, the burning of houses,
after a threat to do so if money be not paid, &c., was made high
treason, and the incendiary suffered as any other traitor; that is, if
a woman, she was burned to death. But t