Charles William Eliot.

American historical documents 1000-1904, with introductions, notes and illustrations online

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penalties, as judges have in passing sentences, and there-
fore there cannot be expected the like blessing of assist-
ance from God. Judges are necessarily tied to give sentence
in a cause before them, but lawmakers are not so bound to
prescribe sentences.

3. If a judge should sometimes err in his sentence, through
misprision or temptation, the error or fault is his own; and
the injury or damage extends not far; but an error in the
law resteth upon the ordinance itself, and the hurt of it may
reach far, even to posterity. There is more righteous-
ness and dishonor in one unjust law than in many unjust
sentences.

2, ob. God prescribed some certain penalties, and that
in cases where offences do usually vary in their degree
and merit.

Ans. I. We have showed before, how God might do it,
in regard to His absolute sovereignty.

2. It is no injustice to Him, because the least degree of
the smallest offence (before His judgment seat) deserves
the highest degree of punishment.

3. In some of these (as in theft) He varieth the pun-
ishment according to the measure and nature of the offence.
In others as death, perpetual solitude, etc., being the just
reward of such offences in their simple nature, they have
not a fit subject, for an increase of punishment to take
place upon. He who is put to death for adultery cannot



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AMERICAN HISTORICAL DOCUMENTS 105

die again for incest concurring therewith, and he who is
adjudged to perpetual servitude for stealing a hundred
pounds cannot be capable of a further sentence for battery.

4. In all or most of those offences, the penalty was in
way of satisfaction to such as were damnified therewith,
and in such cases justice will not allow a judge any liberty
to alter or remit any thing, nor can any circumstance
lead to qualification. A rich man hath the same right of
satisfaction for his goods stolen from him as a poor man,
and the poorest man's life is the life of man, as well as a
prince's.

5. These precedents were given to the judges not with
direction to prescribe penalties to other laws that had
none, but with commandment to give judgment in all cases,
by the equity of these: (there are some forms of prayer
and sermons in scripture, but this doth not prove ergo
all, etc.)

3, ob. If the determination of the law were left to the
judges, that were Arbitrary Government; and is it not
in reason the same, if the punishment of the transgression
of the law be committed?

Ans. The reason is not alike in both cases.

1. The determination of law belongs properly to God:
He is the only lawgiver; but He hath given power and
gifts to man to interpret His laws; and this belongs prin*
cipally to the highest authority in a commonwealth, and
subordinately to other magistrates and judges according to
their several places.

2. The law is always the same, and not changeable by any
circumstances of aggravation or extenuation, as the penalty-
is, and therefore draws a certain guilt upon every trans-
gressor, whether he sin of ignorance, or against knowledge,
or presumptuously; and therefore laws or the interpreta-
tions of them, may be prescribed without any danger, because
no event can alter the reason, or justice of them, as it may
of punishments.

3. The law is more general, and lieth as a burden upon
all persons and at all times; but the penalty reaches to
none but transgressors, and to such, only when they arc
brought under sentence, and not before.



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106 AMERICAN HISTORICAL- DOCUMENTS

4. It is needful that all men should know the laws/ and
their true meanings, because they are bound to them, and
the safety and welfare of the commonwealth consists in
the observation of them; therefore it is needful they should
be stated and declared as soon as is possible; but there is
not the like necessity or use of declaring their penalties
beforehand, for they who are godly and virtuous, will
observe them, for conscience and virtue's sake; and for
such as must be held in by fear of punishment, it is better
they should be kept in fear of a greater punishment than
to take liberty to transgress through the contempt of a
smaller.

4, ob. It is safe for the commonwealth to have penal-
ties prescribed, because we know not what magistrates
or judges we may have hereafter.

Ans. I. God foresaw that there would be corrupt judges
in Israel, yet He left most penalties to their determi-
nation.

2. There is no wisdom of any state can so provide but
that in many things of greatest concernment they must
confide in some men; and so it is in all human affairs:
the wisest merchants, and the most wary, arc forced to
repose great trust in the wisdom and faithfulness of their
servants, factors, masters of their ships, etc All states,
in their generals of war, admirals, ambassadors, treasurers,
etc., and these are causes of more public consequence than
the sentence of a judge in matters of misdemeanor, or
other smaller offences.

3* When we have provided against all common and prob-
able events, we may and ought to trust God for safety
from such dangers as are only possible, but not likely, to
come upon us; especially when our striving to prevent such
possible dangers may hazard the deprivation or weaken-
ing of a present good, or may draw those or other evils
nearer upon us.

This discourse is run out to more length than was in-
tended: the conclusion is this: The Government of the
Massachusetts consists of Magistrates and Freemen: in the
one is placed the authority, in the other, the liberty of
die commonwealth. Either hath power to act, both alon^



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AMERICAN HISTORICAL DOCUMENTS 107

and both together, yet by a distinct power, the one of
liberty, the other of authority. The Freemen act of them-
celves in electing their magistrates and officers; the magis-
trates act alone in all occurrences out of court; and both
act together in the General G)urt; yet all limited by cer-
tain rules, both in the greater and smaller affairs, so as
the Government is regular in a mixed aristocraty, and no
ways arbitrary.

The returns of the Committee of the House of Deputies
concerning the Book about Arbitrary Government, in the
examination thereof; and the votes of the House passed
upon each particular, vis,:

In the first part thereof:

1. Concerning the definition fherdn tnade^ we conceive
it is defective.

2. Concerning the distinction therein made of the body
politic, and the members thereof, in attributing authority
to the one, and only liberty to the other, we find not any
such distinction in the Patent

3. Concerning the clause recited therein (respecting the
G^eral Court) which gives only liberty to the freemen to
advise and counsel, instead of power and authority (which
the Patent allows), we conceive it a taking away of the
power and privileges of the freemen.

In the second part of the book, which concerns the rule
by which a people should be governed, we find these dan-
gerous positions:

1. That general rules are sufficient to dear a state from
Arbitrary Government.

2. That judges ought to have liberty to vary from such
general rules when they see cause.

In the following of the first of those two positions there
are many dangerous passages, and bitter censuring of all
penal laws: as:—

1. That they are paper sentences of human authority and
invention.

2. That men's prescript sentences do deny and exclude
both the wisdom of God, and the authority of the judge.

3. That to prescribe laws with certain penalties is an
usurping of God's authori^.



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108 AMERICAN HISTORICAL DOCUMENTS

4. That a sentence ought not to be provided before the
case fall out, but immediate assistance to be expected

5. That particular laws including certain penalties are
not just, wanting rule.

The introduction of particular instances which are brought
to prove this second position, with the reasons and con-
sequences, are pernicious and dangerous.

per Robert Bridges,

By order, etc.

Governor Wlnthrop's comments on this report, as in-
dorsed by him on the same sheet on which he had care-
fully copied it, are as follows: —

Answer: the Committee have been mistaken in most of
their objections.

1. The Title shows that the author intended not any
definition, but a description only, and to make it the more
full and clear, he lays it down both affirmatively and nega-
tively; yet a logician may frame it into a definition, — ^thus
Arbitrary Government is a Government exercised without
a rule, but the description is false by the cause and by
the effects.

2. There is no such distinction as is observed between the
body politic and the members thereof, for that were to
distinguish between the whole and the parts; but the dis-
tinction between the members of that body, giving au-
thority to the one and power of liberty to the other, is
warranted by the Patent (as in other places so) particularly
in that clause which sayeth that the Governor, etc., shall
call the freemen to consult and advise, etc., which is an
act of liberty and not of authority; and for the other part
of their power, which is matter of election, the late Body
of Liberties sayeth it is their constant liberty, not au*
thority.

In the second part:

I. We find not any such position that general rules are
sufficient to clear a state of arbitrary government, but we
find that the word of God and the laws here established
being appointed by order of Court as a rule for the pres-
ent, are such a rule as may be required by the judges in
all their administrations, because a rule may from thence



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AMERICAN HISTORICAL DOCUMENTS 109

he lerived (if God give wisdom to discern it) in any par-
ticufar case which may fall out; otherwise the Law of God
were not perfect, and from what better grounds shall the
lawmakers draw all future laws and prescribed penalties.

But if the author had expressed himself in the very words
of the position yet it will admit a safe construction, for
all laws (not limited to particular parties or occasions)
are general rules, and may be so called, though they have
a certain penalty annexed.

2. Nor will the book own the second position in the
words expressed, but this the judges both from their of-
fices (being Grod's vicegerents) and from diverse examples
in Scripture, which seem to hold forth so much, that some
liberty ought to be left to judges in some cases, upon special
occasions to hold forth the mercy of God, as well as His
justice ; nor do we consider that either in the Commonwealth
of Israel, or in any other, the judges have been wholly
restrained of such liberty.

In the following argument: —

If the Committee had found such dangerous passages as
they intimate, they should have done well to have imparted
their particular observations therein unto us, that we might
have considered of them, for want whereof it cannot be
expected we should deliver any opinion about them. The
like we may say for such bitter censurings as they mention,
only it is usual for men to call such things bitter which
themselves disrelish, though they may be harmless and
wholesome notwithstanding.

For the five particulars mentioned, they are delivered as
arguments or the consectaries thereof, so as the arguments
must first be avoided before any judgment can be given
about them.

The examples which the author allcgeth out of Scripture
are only to show how God hath sometimes (in His wisdom
and mercy) dispensed with the rigor of His own law; and
that princes have sometimes done the like upon public or
other prevalent considerations, which cannot be denied
to be a truth; and for the warrant they had for it, being
(at the most) disputable, it was as free for him to de-
liver them in his own and some other learned and godly



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110 AMERICAN HISTORICAL DOCUMENTB

men's apprehensions as it is for others who differ therein;
and there can be no more danger in this than in other books
and sermons, where the same or other passages of Scripture
are truly reported, though not applied to the sense of every
godly man, as if one should reason thus: David put the
Amorites to torture, therefore, in some cases it is lawful
so to da This will not be judged a pernicious doctrine,
though some godly men do question the warrantableness of
the example. The like may be said of all such examples
in Scripture as are controverted among godly and learned
men; but it is otherwise in such places as are not ques-
tionable, as if a man should reason thus: David sentenced
Mephibosheth before he heard him; therefore it is lawful
for judge so to do. This might truly be said to be a
pernicious doctrine; or if one should argue thus: Saul
made a law with a prescript penalty of death to him that
should transgress it; therefore it had been just that Jonathan
should have been put to death for transgressing that law;
or therefore it is lawful for princes, etc., to prescribe penal-
ties at their own pleasures; — ^these might be judged to be
pernicious doctrines, because the example is unquestion-
able, etc.

THE AUTHOR'S REVIEW OP HIS WRITING

That which gave me occasion first to inquire after
a rule for prescript penalties, was the inequality I saw
in some prescribed sentences upon the breach of diverse
moral laws; and proceeding in this inquiry, I kept my in-
tention still upon that subject, without respect to such
laws as are merely positive, having their authority only and
wholly from human institutions: therefore you shall find
that all my instances are of that kind, and all my argu-
ments look that way, as in the instances I bring of the
laws of England If I intended the positive and statute
laws, it had been a great mistake, for I know well that
most of the later Statute Laws have their penalties pre-
scribed, and it must needs be so, for such as are merely
positive; for a judge can have no rule for his sentence
upon the breach of such a law, except he have it from the



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AMERICAN HISTORICAL DOCUMENTS 111

law itself: as, for instance, if the law which forbids any
man to kill an hare or partridge with a gun, had not also
set down the penalty, the judge could not have found out
any, which might have been just, because no law of God
or nature makes such an act any offence or transgression.
But for the Common Laws of England (which are the
ancient laws, and of far more esteem for their wisdom
and equity than the Statute Laws,) they had no penalties
prescribed; and it may be conceived that for such of them
as were grounded upon the Word of God, and the light of
nature, there must needs be that in the same Word, and
in the same light of nature (especially where the image
of God in man is in part renewed by Christ) which may
lead us to a just punishment for the transgressor of such
a law. Nor do I oppose all prescript penalties in moral
cases, but only such as do cross some clear rules in the
Word of God, as will appear by all my arguments. And
for avoiding all danger to the subject for want of pre-
script penalties in some ca3es, you may see that to require
some such law to be made, as may limit judges within such
bounds of moderation as may prevent such dangers, and
[it] is one of my express conclusions in the first page,
that judges ought to be tied to a rule, and such a rule
as may be required of them in all their administrations, and
therefore upon what ground I should be charged to assert
Arbitrary Government, and that judges should have liberty
to do what they may, I leave to your judgment.

As for laws, you shall find also that I conclude the neces-
sity of declaring and stating them, so as all the people may
know them, for I ever held it unjust to require of men the
obedience of any law which they may not (by common
intendment) take notice of. Answerable thereunto hath
been my practice. All the useful laws we have had my con-
sent, and such poor help as the Lord enabled me to yield
to them; some of which have prescribed penalties, and
where I have withheld my consent to any such penalties
I have given my reasons for it, which have been such as
in some cases have satisfied the Court, and therein I have
taken no more liberty than is allowed to every member
of the Court. I will not justify every passage in my book:



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112 AMERICAN HISTORICAL DOCUMENTS

there are two or three words that offence hath been taken
at, and although I can give a safe account of them, yet
I must confess they do not now please me, but when the
matter is good, and the intention of the writer honest, the
Lord forbids us to make a man an offender in word.

Whatsoever is erroneous (I say as I did from the first)
I shall leave it to its due censure; but for all that is of
God, and of the Truth, or the sincerity of my intentions
herein to the public weal, or the liberty I had by my place
to propound such considerations to the Court, if these be
questioned I must 8tand and fall with them.

John Winthrop.



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THE INSTRUMENT OF

GOVERNMENT

(1653)

[The Instrument of Government is important in the history
of written constitutions. It was adopted by Cromwell and his
Council of Officers on December 16, 1653, and under it Cromwell
assumed the office of Lord Protector. When the Parliament for
which it provides met in September, 1654, it passed a constitution
of which the Instrument was the basis.]

THE government of the Commonwealth of England,
Scotland, and Ireland, and the dominions thereunto
belonging.

I. That the supreme legislative authority of the Common-
>ealth of England, Scotland, and Ireland, and the dominions
thereunto belonging, shall be and reside in one person, and
the people assembled in Parliament; the style of which per-
son shall be the Lord Protector of the Commonwealth of
England, Scotland, and Ireland.

II. That the exercise of the chief magistracy and the
administration of the government over the said countries
and dominions, and the people thereof, shall be in the Lord
Protector, assisted with a council, the number whereof
shall not exceed twenty-one, nor be less than thirteen.

III. That all writs, processes, commissions, patents,
grants, and other things, which now run in the name and
style of the keepers of the liberty of England by authority
of Parliament, shall run in the name and style of the Lord
Protector, from whom, for the future, shall be derived all
magistracy and honours in these three nations; and have
the power of pardons (except in case of murders and trea-
son) and benefit of all forfeitures for the public use; and
shall govern the said countries and dominions in all things

113



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114 AMERICAN HISTORICAL DOCUMENTS

by the advice of the council, and according to these presents
and the laws.

IV. That the Lord Protector, the Parliament sitting, shall
dispose and order the militia and forces, both by sea and
land, for the peace and good of the three nations, by con-
sent of Parliament; and that the Lord Protector, with the
advice and consent of the major part of the coimcil, shall
dispose and order the militia for the ends aforesaid in the
intervals of Parliament.

V. That the Lord Protector, by the advice aforesaid,
shall direct in all things concerning the keeping and holding
of a good correspondency with foreign kings, princes, and
states; and also, with the consent of the major part of the
council, have the power of war and peace.

VI. That the laws shall not be altered, suspended, abro-
gated, or repealed, nor any new law made, nor any tax,
charge, or imposition laid upon the people, but by common
consent in Parliament, save only as is expressed in the
thirtieth article.

VII. That there shall be a Parliament summoned to meet
at Westminster upon the third day of September, 1654,
and that successively a Parliament shall be summoned once
in every third year, to be accounted from the dissolution
of the present Parliament

VIII. That neither the Parliament to be next summoned,
nor any successive Parliaments, shall, during the time of
five months, to be accounted from the day of their first
meeting, be adjourned, prorogued, or dissolved, without
their own consent.

IX. That as well the next as all other successive Par-
liaments, shall be summoned and elected in manner here-
after expressed; that is to say, the persons to be chosen
within England, Wales, the Isles of Jersey, Guernsey, and
the town of Berwick-upon-Tweed, to sit and serve in
Parliament, shall be, and not exceed, the number of four
hundred. The persons to be chosen within Scotland, to
sit and serve in Parliament, shall be, and not exceed, the
number of thirty; and the persons to be chosen to sit in
Parliament for Ireland shall be, and not exceed, the number
of thirty.



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AMERICAN HISTORICAL DOCUMENTS 115

X. That the persons to be elected to sit in Parliament
from time to time, for the several counties of England,
Wales, the Isles of Jersey and Guernsey, and the town of
Berwick-upon-Tweed, and all places within the same respec-
tively, shall be according to the proportions and numberi
hereafter expressed: that is to say,

Bedfordshire, 5 ; Bedford Town, i ; Berkshire, 5 ; Abingdon, 1 ;
Reading, i ; Buckinghamshire, 5 ; Bucldngham Town, i ; Aylesbury,
1 ; Wycomb, 1 ; Cambridgeshire, 4 ; Cambridge Town, 1 ; Cambridge
University, i ; Isle of Ely, 2 ; Cheshire, 4 ; Chester, i ; Cornwall, 8 ;
Launceston, i ; Truro, i ; Penryn, i ; East Looe and West Looe, i ;
Cumberland, 2 ; Carlisle, i ; Derbyshire, 4 ; Derby Town, i ; Devon-
shire, 1 1 ; Exeter, 2 ; Plymouth, 2 ; Clifton, Dartmouth, Hardness, i ;
Totnes, i ; Barnstable, i ; Tiverton, i ; Honiton, i ; Dorsetshire, 6 ;
Dorchester, i ; Wesrmouth and Melcomb-Regis, x ; Lsrme-Regis, i ;
Poole, x; Durham, 2; City of Durham, x; Essex, xa; Maiden, i;
Colchester, 2 ; Gloucestershire, 5 ; Gloucester, 2 ; Tewkesbury, x ;
Cirencester, i ; Herefordshire, 4 ; Hereford, x ; Leominster, i ; Hert-
fordshire, 5 ; St. Alban's, x ; Hertford, x ; Himtingdonshire, 3 ;
Huntingdon, x ; Kent, x i ; Canterbury, 2 ; Rochester, x ; Maidstone,
X ; Dover, i ; Sandwich, x ; Queenborough, i ; Lancashire, 4 ; Pres-
ton, X ; Lancaster, i ; Liverpool, x ; Manchester, x ; Leicestershire, 4 ;
Leicester, 2; Lincolnshire, 10; Lincoln, 2; Boston, x; Grantham, x;
Stamford, x ; Great Grimsby, x ; Middlesex, 4 ; London, 6 ; West-
minster, a; Monmouthshire, 3; Norfolk, xo; Norwich, 2; Lynn-
Regis, 2; Great Yarmouth, 2; Northamptonshire, 6; Peterborough,
I ; Northampton, i ; Nottinghamshire, 4 ; Nottingham, 2 ; North-
umberland, 3 ; Newcastle-upon-Tyne, i ; Berwick, x ; Oxfordshire, s ?
Oxford City, i ; Oxford University, x ; Woodstock, x ; Rutlandshire,
2 ; Shropshire, 4 ; Shrewsbury, 2 ; Bridgnorth, x ; Ludlow, x ; Stafford-
shire, 3 ; Lichfield, x ; Stafford, i ; Newcastle-under-Lyne, x ; Som-
ersetshire, 11; Bristol, 2; Taunton, 2; Bath, i; Wells, i; Bridg-
water, x; Southamptonshire, 8; Winchester, x; Southampton, x;
Portsmouth, x; Isle of Wight, 2; Andover, i; Suffolk, xo; Ipswich,
2 ; Bury St Edmunds, 2 ; Dunwich, i ; Sudbury, i ; Surrey, 6 ;
Southwark, 2; Guildford, x; Reigate, x ; Sussex, 9; Chichester, x;
Lewes, x ; East Grinstead, x ; Arundel, x ; Rye, x ; Westmoreland, 2 ;
Warwickshire, 4; Coventry, 2; Warwick, i; Wiltshire, xo; New
Sarum, 2 ; Marlborough, i ; Devizes, i ; Worcestershire, 5 ; Worces-
ter, 2.

Yorkshire.— West Riding, 6; East Riding, 4; North Riding, 4;
City of York, 2 ; Kingston-upon-Hull, x ; Beverley, i ; Scarborough,
X ; Richmond, i ; Leeds, x ; Halifax, x.

WALES. - -Anglesey, 2; Brecknockshire, 2; Cardiganshire, 2; Car-
marthenshire, 2; Carnarvonshire, 2; Denbighshire, 2; Flintshire, 2;
Glamorganshire, 2 ; Cardiff, x ; Merionethshire, i ; Montgomeryshire.
3; Pembrokeshire, 2; Haverfordwest, x; Radnorshire, 2.



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116 AMERICAN HISTORICAL DOCUMENTS

The distribution of the persons to be chosen for Scot-
land and Ireland, and the several cotmties, cities, and places
therein, shall be according to such proportions and num-
ber as shall be agreed upon and declared by the Lord Pro-
tector and the major part of the coimcil, before the send-
ing forth writs of summons for the next Parliament.

XL That the summons to Parliament shall be by writ
under the Great Seal of England, directed to the sheriffs
of the several and respective counties, with such altera-
tion as may suit with the present government, to be made
by the Lord Protector and his council, which the Chancellor,
Keeper, or Commissioners of the Great Seal shall seal,



Online LibraryCharles William EliotAmerican historical documents 1000-1904, with introductions, notes and illustrations → online text (page 10 of 48)