And if any person of the age aforesaid, [16 years and upwards] shall after the publication hereof, wittingly and willingly, and felloniously, set on fire any _Dwelling House_, _Meeting House_, _Store House_, or shall in like manner, 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 this statute was repealed in the reign of Edward VI., as regards the treason, and the offence remained felony as at the common law, and punishable by hanging only.