When they were come the
first question put to them was, ... whether the magistrates are, by patent
and election of the people, the standing council of this commonwealth in
the vacancy of the General Court, and have power accordingly to act in all
cases subject to government, according to the said patent and the laws of
this jurisdiction; and when any necessary occasions call for action from
authority, in cases where there is no particular express law provided,
there to be guided by the word of God, till the General Court give
particular rules in such cases. The elders, having received the question,
withdrew themselves for consultation about it, and the next day sent to
know, when we would appoint a time that they might attend the court with
their answer. The magistrates and deputies agreed upon an hour "and ...
their answer was affirmative, on the magistrates behalf, in the very
words of the question, with some reasons thereof. It was delivered in
writing by Mr. Cotton in the name of them all, they being all present, and
not one dissentient." Then the magistrates propounded four more questions,
the last of which is as follows: "Whether a judge be bound to pronounce
such sentence as a positive law prescribes, in case it be apparently above
or beneath the merit of the offence?" To which the elders replied at great
length, saying that the penalty must vary with the gravity of the crime,
and added examples: "So any sin committed with an high hand, as the
gathering of sticks on the Sabbath day, may be punished with death when a
lesser punishment may serve for gathering sticks privily and in some
need.
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