Arbitrary Gouerment is, where a people have men sett ouer them without their choyce, or allowance: who haue power, to Gouerne them, and Judge their Causes without a Rule.

God onely hathe this prerogatiue: whose Sovereintye is absolute, and whose will is a perfecte Rule, and Reason it selfe: so as for man, to usurpe such Authoritye is Tiranye, and impietye.

Where the people have Libertye to admitt, or reiect their Gouernors; and to require the Rule, by which they shalbe governed and Judged, this is not an Arbitrarye Gouerment.

That the Government of the Massachusetts is such, will appeare 1: by the foundation of it: 2: by the positive Lawes therof: 3: by the constant practice, which proves a Custome, then which (when it is for common good) there is no Lawe of man more inviolable.

1: The Foundation of this Gouerment, is the Kinges Lettres Patents: this gaue them their Forme, and beinge, in disposinge a certaine number of persons, into a bodye politike; whereby they became then (in such a politike respecte) as one single person consistinge of severall members: and appointinge to eache, its proper place: it regulates their power and motions, as might best conduce to the preservation, and good of the wholl bodye:

The parties or members of this bodye politike are reduced vnder 2 kinds, Gouernor and Companye, or Freemen: to the Gouernor it adds a Deputye, and 18 Assistants: in these is the power of Authoritye placed, vnder the name of the Gouernor (not as a person, but as a State) and in the other (which is named the Company) is placed the power of Liberty; which is not a bare passive capacitye of freedome or immunity, but such a Libertye, as hath power to Acte vpon the cheife meanes of its owne wellfare (yet in a waye 469of Libertye, not of Authoritye) and that vnder 2 generall heads, Election, and Counsell: 1: they have Libertye to electe yearly (or oftener if occasion require) all their Gouernors, and other their generall officers, viz: such as should have influence (either Juditiall or ministeriall) into all parts of the Jurisdiction. 2: They haue Libertye of Counsell, in all the generall Assemblyes, so as, without their counsell and consent, no Lawes, decrees, or orders, of any public nature or concernment, nor any Taxes, impositions, impresses, or other burdens of what kinde soeuer, can be imposed vpon them, their familyes or estates, by any Authoritye in the Gouernment: which notwithstanding remaines still a distincte member, even in those generall Assemblyes: otherwise our state should be a meer Democratie, if all were Gouernors, or magistrates, and none lefte, to be an obiecte of Gouernment which cant fall out in any kinde of Aristocratie.

To make this cleare, we will sett downe the verye words of the Patent.

1: The words of Constitution of this bodye politike are these A: B: C: and all such others as shall hereafter be admitted and made free of the Company and society hereafter mentioned shalbe etc: one Bodye Politike and Corporate, in fact and name, by the name of the Gouernor and Company of the Mattachusetts Baye in N: E: And that from henceforth, for euer there shalbe one Gouernor, one Deputy Gouernor, and 18 Assistants of the same Company, to be from tyme to tyme, constituted, elected, and chosen, out of the Freemen of the sayd Company for the tyme beinge; In such manner and forme, as heerafter in these presents is expressed, which said officers shall applye themselues to take care for the best disposinge and orderinge of the generall businesse and Affaires of, for, and concerninge the said lands and premises heerby mentioned to be granted, and the plantation thereof, and the Gouernment of the people there.

2: The distribution of power followes, in these words ensueinge That the Gouernor of the said Company for the tyme beinge or in his absence by occasion of sicknesse or otherwise, the Deputie Gouernor for the tyme beinge shall haue Authoritye from tyme to tyme, vpon all occasions, to giue order, for the Assemblinge of the said Company, and calling them together, to Consult and Aduise of the businesses and Affaires of the said Company:

And that the said Gouernor Deputy Gouernor and Assistants of the said Company for the tyme beinge shall or may once euery month or oftner at their pleasures, Assemble and hold and keepe a Court, or Assembly of themselues, for the better orderinge and directing of their Affaires:

And that any 7 or more persons, of the Assistants, togither with the Gouernor or Deputye Gouernor so Assembled shalbe said taken held and reputed 470to be, and shalbe, a full and sufficient Court or Assembly of the said Company, for the handlinge orderinge and dispatchinge of all such businesses and occurrents, as shall from tyme to tyme happen touching or concerninge the said Company or plantation.

Then follows a Clause, wherby Libertye is granted to hold 4 general Courts in the yeare, wherein (with the Advice and consent of the maior parte of the Freemen) they may admitt others to the Freedome of the Company, they may make all subordinate Officers, and make Lawes and constitutions, for their wellfare and good Gouerment.

Then followeth a Clause for the Annuall Election of all their Officers in these words ensuing.

That yearly once in the yeare foreuer, namely on the last Weddensdaye in Easter Term yearly, the Gouernor Deputy Gouernor and Assistants of the said Company and all other Officers of the said Company shalbe in the generall Court of Assembly, to be held for that day or tyme, newly chosen for the yeare ensueing by such greater parte of the said Company, for the tyme beinge, then and there present as is aforesaid.

Then followes another branch, whereby, in any of their generall Courts, any insufficient or delinquent Officer (of what sorte soeuer) may be removed, and another forthwith putt in place.

The last Clause is for the Gouerning of the Inhabitants within the Plantation. For it being the manner for such as procured Patents for Virginia, Bermudas and the Weste Indies, to keep the cheife Gouernment in the hands of the Company residinge in England, (and so this was intended and with much difficulty we gott it abscinded) this clause is incerted in this and all other Patents wherby the Company in England might establish a Gouerment and Officers heer, in any forme vsed in England, as Gouernor and Counsell, Justices of Peace, Maior Baylyfs etc, and accordingly mr. Endicott and others with him, were established a Gouernor and Councell heer, before the Gouernment was transferred hither: and that clause is expressed in these words.

It shall and may be lawfull, to and for the Gouernor etc: and such of the Freemen of the said Company for the tyme beinge, as shalbe assembled in any of their Generall Courts aforesaid, or in any other Courts to be specially summoned and assembled for that purpose, or the greater part of them, whereof the Gouernor or Deputye Gouernor and 6 of the Assistants to be allwayes 7 from tyme to tyme, to make, ordaine, and establish all maner of wholesome and reasonable Orders, Lawes statutes and Ordinances directions and instructions, not contrarye to the Lawes of this our Realme of England: 471as well for setling of the formes and Ceremonies of Gouernment and Magistracie, fitt and necessarye for the said Plantation, and Inhabitants there and for naminge and stilinge of all sorts of Officers, both Superior and inferior, which they shall finde needfull for that Gouernment and Plantation, and the distinguishinge and settinge forth of the seuerall duties, powers and limitts of euery such office etc. for disposinge and orderinge the Elections of such of the said Officers as shalbe annuall, etc: and for settinge downe formes of Oathes and for ministeringe of them etc: and for the directinge Rulinge and disposinge all other matters and thinges, whereby our said people inhabitants there, may be so religiously peaceably and ciuily governed etc:

Thus it appeares that this Gouernment is not Arbitrary in the foundation of it, but Regulated in all the partes of it.

2: It wilbe yet further found by the positive Lawes thereof: And first by that of (3) 14, 1634, where it is declared, that The generall Court onely may make Freemen: make Lawes: choose Generall Officers, as Gouernor, Deputie, Assistants, Treasurer etc: remove suche: sett out their power and dutye: rayse monyes: dispose of lands in proprietyes: not to be dissolved, but by consent of the maior parte. The Freemen of the severall Townes may sende their Deputyes to everye generall Court who may doe all that the bodye of Freemen might doe, except in Election of magistrates and officers.

And in the 67 Libertye, it is thus described viz. It is the Constant Libertye of the Freemen, to choose yearly at the Court of Election, out of the Freemen, all the generall Officers of this Jurisdiction. If they please to discharge them, at the Court of Elections, by vote, they may doe it without shewing Cause: but if at any other generall Court, we hould it due Justice, that the Reasons thereof be alledged and proved. By Generall Officers, we meane our Gouernor, Deputye Gouernor Assistants, Treasurer, Generall of our Warres, and our Admirall at Sea; and suche as are or may be heerafter, of like Generall nature.

3: Accordinge to these fundamentall Rules, and positiue Lawes, the Course of Gouernment, hathe been carried on in the practice of public Administrations to this verye daye, and where any considerable obliquitye hathe been discerned, it hathe been soone brought to the Rule and redressed: for it is not possible in the infancye of a plantation, subiecte to so many and variable occurrents, to holde so exactly to Rules, as when a state is once setled.

By what hathe been allreadye manifested, this Gouernment is freed from any semblance of Arbitrarinesse, either in the forme of it, or the generall officers in it, which is the first branch in the description of Arbitrary Gouernment.

The other Branche (wherin the maine question lyes) is concerninge the Rule: so as if it shall appeare allso, that the Governor and other officers are prescribed suche a Rule, as may be required of them in all their Administrations, then it must needs be granted, that this Government (even in the present state therof) is in no respecte Arbitrarye.

I might shewe a cleare Rule out of the Patent it selfe, but seing it is more particularly, (and as it were membratim) deliniated in later Lawes, I will beginne there (3) 25, 1636. It was Ordered, that vntill a bodye of Fundamentall Lawes (Agreeable to the word of God) were established, all causes should be heard and determined, accordinge to the Lawes allreadye in force: and where no Lawe is, there, as neere the Lawe of God as may be To omitt many particular Lawes enacted vppon occasion, I will sett downe onely the first Authoritye in the Libertyes: which is as heere followeth. No mans life shalbe taken awaye: no mans honor or good name shalbe stayned: No mans person shalbe arrested, restrained, banished, dismembred, or any wayes punished: No man shalbe depriued of his wife or children: No mans goods or estate shalbe taken away from him: or any waye endamaged, vnder colour of Lawe or Countenance of Authoritye vnlesse it be by the vertue or equitye, of some expresse Lawe of the Countrye, warrantinge the same, established by a generall Court and sufficiently published: or, in Case of the defecte of a Lawe, in any particular Case, by the worde of God, And in Capitall Cases, or in Cases concerninge dismembringe or Banishment, accordinge to that worde, to be Judged by the Generall Court.

By these it appeares, that the Officers of this Bodye Politick have a Rule to walk by, in all their administrations, which Rule is the Worde of God, and such conclusions and deductions, as are, or shalbe regularly drawne from thence.2

All Commonwealthes have had some principles, or fundamentalls, from which they have framed deductions to particular Cases, as occasion hathe required. And though no Commonwealth euer had, or can have, a particular positive Rule, to dispence power, or Justice by in every single Case: yet where the fundamentalls, or generall Rule holde forthe suche direction, as no great damage, or injurye can befall, either the wholl, or any particular parte, by any vniust Sentence, or disorderly proceedinge, without manifest 473breache of suche generall Rule, there the Rule may be required: and so the Gouernment is Regular and not Arbitrarye.

The Fundamentalls which God gave, to the Commonwealth of Israell, were a sufficient Rule to them, to guide all their Affaires: we havinge the same, with all the Additions, explanations and deductions, which have followed: it is not possible, we should want a Rule in any Case: if God give wisdome to discerne it.

There are some fewe Cases onely (besides the Capitalls) wherein the penalty is prescribed: And the Lord could have doone the like in others, if he had so pleased, but havinge appointed Governments vpon earthe, to be his vicegerents, he hathe given them, those fewe, as presidents, to directe them, and to exercise his guifts in them: Deut. 17: 9: 10: 11: In the most difficult Cases, the Judges in Supreme Authoritye, were to shewe the sentence of the Lawe: whence 3 thinges may be observed: 1: this Sentence was to be declared out of the Lawe established: thoughe not obuious to Comon vnderstandinge 2: this was to be expected in that Ordinance: therefore v: 19: the Kinge was to have a Copye of the Lawe, and to reade them all the dayes of his life: 3: Suche a Sentence was not ordained to be provided before the Case fell out, but pro re nata, when occation required, God promised, to be present in his owne Ordinance, to improue suche gifts as he should please to conferre vpon suche as he should call to place of Goverment. In the Scripture, there are some formes of Prayers and of Sermons sett downe: yet no man will inferre from thence, that ministers should have Sermons and prayers prescribed them for every occasion: for that would destroye the Ordinance of the ministry: and a Readinge Preist might serve in that office, without any learninge or other gifts of the Spirit: So if all penaltyes were prescribed, the Jurye should state the Case, and the booke hold forthe the sentence, and any Schoolboye might pronounce it: and then what need were there of any speciall wisdome, learninge, Courage, zeale or faithfullnesse in a Judge?

This beinge so great a Question now on foote, about prescript penaltyes it wilbe of vse to searche as deepe into it, as we may by the light of Scripture, approved patternes and other Rationall Arguments: not tyeinge our discourse to methode, but layinge downe thinges as they come to hande.

England In the right constitution, is not an Arbitrary Gouernment: nor is ours of the Massachusetts: yet Juries, both there and heer, give damages, which (in vulgar sence) are Arbitrary, in most Cases: as in Actions of Slander, Trespasse, Batterye, Breach of Covenant, etc: all which concerne the Peoples Libertyes, no lesse, than Fines and other penaltyes: And if 12 men, who have no callinge to Office, may (in expectation of Gods Assistance) be trusted with 474mens estates in a way of distributive Justice, without a prescript Rule etc: why may not those whose callinge and Office hathe promise of Assistance, have like trust reposed in them, in vindictive Justice?

In the Libertyes enacted heere of purpose to prevent Arbitrary Goverment, there are neer 40 Lawes, to the violation whereof no penaltye is prescribed: nor was ever moved.

God may pronounce Sentence against an Offender, before the offence be Committed, bothe by his absolute Soveraintye, and allso because he foreseethe all Facts, with all their Circumstances: and besides the least degree of the same Offence deserves more then that full punishment before his Justice: but man must proceede accordinge to his Commission; by which he canot sentence another, before he hath offended, and the offence examined, proved, layd to the Rule, and weighed by all considerable Circumstances, and Libertye given to the partye to Answeare for himselfe, nor is there any thing more preiudiciall to a subiects Libertye, then to be sentenced before his Cause be hearde.

England is a State of long standing, yet we have had more positiue and more holesome Lawes enacted in our shorte tyme then they had in many hundred yeares. They have indeed some Lawes with prescribed penaltyes annexed, but they are for the most parte so small, as doe vnder value the least degree of those offences: they have xijd for an Oathe: 5s for Drunkenesse etc. but for all great Offences and misdemeanors, as Periurye, Forgerye, Conspiracyes, Cousenages, oppressions, Riott, Batteryes, and other breaches of the Peace etc: there is no penaltye prescribed how it is in other States in Europe, I cannot relate (because we knowe not their Lawes) otherwise then what appeares in their Histories, where we finde some great offences punished, by the discretion of their Judges.

Justice ought to render to every man accordinge to his deservinge, eye for eye, hand for hande etc: and Luk: 12: 47: the servant, who transgressed against knowledge was to be beaten with more stripes then he who transgressed of Ignorance: If we had a Lawe, that every lye should be punished 40s and 2 offendors should be Convicte at the same tyme: the one a youthe of Honest Conversation, never known to lye before: and now suddainly surprized, with feare of some discredit, had tould a lye, wherin was no danger of harme to any other: The other, an olde notorious lyer: and his lye contrived of purpose, for a pernitious ende: It were not Juste, to punish both these alike: As 40s were too little for the one, soe it were too muche for the other. Besides penaltyes (we knowe) comminge of poena, should cause paine or greife to the offenders. It must be an Affliction: yet not a destruction, except in Capitall, or 475other haynous Crimes: but in prescript penaltyes Authoritye shoots at adventure: if the same penalty hitts a Riche man, it paines him not, it is no Affliction to him, but if it lights vpon a poore man, it breakes his backe.

Everye Lawe must be Just in everye parte of it, but if the penaltye annexed be vniust, how can it be held forthe as a Just Lawe? To prescribe a penaltye, must be by some Rule, otherwise, it is an vsurpation of Gods prerogatiue: but where the Lawe makers, or Declarers canot finde a Rule for prescribinge a penaltye, if it come before the Judges pro re nata, there it is determinable by a certaine Rule, viz: by an ordinance sett vp of God for that purpose, which hathe a sure promise of divine Assistance, Exo: 21: 22, Deut: 16: 18: Judges and Officers shalt thou make etc: and they shall Judge the people with Just Judgment: Deut: 25: 1: 2: and 17: 9: 10: 11. If a Lawe were made that if any man were found drunken he should be punished by the Judges accordinge to the meritt of his offence: this is a iust Lawe, because it is warranted by a Rule: but if a certaine penaltye were prescribed, this would not be iust, because it wants a Rule, but when suche a Case is brought before the Judges, and the qualitye of the person and other circumstances considered, they shall finde a Rule to Judge by; as if Naball, and Uriah, and one of the stronge drunkards of Ephraim were all 3 togither accused before the Judges for drunkennesse, they could so proportion their severall sentences, accordinge to the severall natures and degrees of their offences, as a Just and divine sentence might appeare in them all: for a diuine sentence is in the lipps of the Kinge his mouth transgresseth not in Judgment Pro: 16: but no suche promise was ever made to a paper Sentence of humane Authoritye or Invention.3 He who hathe promised his servants to teach them what to Answeare, even in that houer, when they shalbe brought before Judgments seats, etc: will allso teach his ministers the Judges, what sentence to pronounce, if they will allso observe his worde, and trust in him. Care not for the morrowe etc. is a Rule of generall extent, to all Cases where our providence may either crosse with some Rule or Ordinance of his, or may occasion vs to relye more upon our owne strengthe and meanes, then vpon his grace and blessing. In the sentence which Solomon gave betweene the 2 Harlotts: 1: Kings: 3: 28, It is sayd All Israell heard of the Judgment which the Kinge had Judged: and 476they feared the Kinge, for they sawe that the wisedome of God was in him to doe Judgment. see heer. how the wisdome of God was glorified, and the Authoritye of the Judge strengthned, by this sentence: whereas in mens prescript sentences, neither of these can be attained, but if the Sentence hitt right, all is ascribed to the wisdome of our Ancestors, if otherwise, it is endured as a necessary evill, since it may not be altered.

Prescript penaltyes take away the vse of Admonition, which is allso a divine sentence and an Ordinance of God, warranted by Scripture: as appeares in Solomons Admonition to Adonijah and Nehemiahs to those that brake the Sabbaoth: Eccl: 12: 11: 12: The Words of the wise are as goads, and as nayles fastened by the masters of Assemblys—by these (my sonne) be admonished, Pro: 29: 1: Isay. 11: 4: Pro. 17: 10: A Reproofe entereth more into a wise man, then 100 stripes into a foole.

Judges are Gods vpon earthe: therefore, in their Administrations, they are to holde forthe the wisdome and mercye of God, (which are his Attributes) as well as his Justice: as occasion shall require, either in respecte of the qualitye of the person, or for a more generall good: or evident repentance, in some cases of less public consequence, or avoydinge imminent danger to the state, and such like prevalent Considerations. Exo: 22: 8: 9: for thefte and other like Trespasses, double restitution was appointed by the Lawe: but Lev: 6: 2: 5: in such cases, if the partye Confessed his sinne, and brought his offeringe, he should onely restore the principall, and adde a fifthe parte thereto. Adultery and incest deserved deathe, by the Lawe, in Jacobs tyme (as appeares by Juda his sentence, in the case of Thamar): yet Ruben was punished onely with losse of his Birthright, because he was a Patriark. David his life was not taken awaye for his Adulterye and murder, (but he was otherwise punished) in respect of public interest and advantage, he was valued at 10000 common men: Bathsheba was not putt to deathe for her Adulterye, because the Kinges desire, had with her, the force of a Lawe. Abiathar was not putt to deathe for his Treason, because of his former good service and faithfullnesse. Shemei was Reprived for a tyme, and had his pardon in his owne power, because of his profession of Repentance in such a season. Those which brake the Sabbaothe in Nehemiah his tyme, were not putt to deathe but first admonished, because the state was not setled etc. Joab was not putt to deathe for his murders, in Davids tyme, for avoydinge imminent public danger, the sonnes of Zeruiah had the advantage of David, by their interest in the men of Warre: and the Common wealth could not yet spare them. But if Judges be tyed to a prescript punishment, and no libertye lefte for dispensation or mitigation in any Case, heer is no place lefte for wisdome or 477mercye: whereas Solomon saythe Pro: 20: 28: mercy and trueth preserue the Kinge; and his Throne is vpholden by mercye.

I would knowe by what Rule we may take vpon vs, to prescribe penaltyes, where God prescribes none. If it be Answ: from Gods example, I must Replye 1: God prescribes none except Capitall, but onely in suche Cases as are betweene party and party, and that is rather in a waye of satisfaction to the partye wronged, then to Justice and intention. 2. Gods examples are not warrants for vs, to goe against Gods Rules; our Rule is to give a Just Sentence, which we cant doe (in most Cases) before the Offence is committed etc. 5s now may be more then 20s heerafter and e contra. if examples in Scripture be warrant for vs to proceed against Rule, then we may passe by Murders, Adulteryes, Idolatryes, etc: without Capitall punishments: then we might putt the Children to deathe for parents offences etc:

If we should enquire allso of the ende of prescribing penaltyes, it can be no other but this, to prevent oppression of the people, by vniust Sentences; and then I am again to seeke of a Rule, to weaken the power and Justice of an Ordinance of God, through distrust of his providence: and promise of Assistance in his owne Ordinance: who must give the Lawe makers wisdome etc. to prescribe sentences? must not God? and may we not then trust him, to give as muche wisdome etc: to suche Judges, as he shall sett vp after vs? it is said when they had Judges by Gods appointment, God was with the Judge. so may we still believe, that if our posterity shall choose Judges accordinge to God, he wilbe with our Judges in tyme to come, as well as with the present.

It may be further demanded, what power we haue over the persons and estates of the succeedinge generations? If we should now prescribe, where our posteritye etc. should dwell, what quantityes of land they should till: what places they should tende vnto: what diet they should use, what Clothes they should weare etc: by what Rule could we challenge this power? yet we have example for some of these in Scripture, as of Jonadab the sonne of Rechab: etc: but no man will take these as warrant for vs to laye suche iniunctions vpon those which come after us, because they are to have the same interest, and freedome in their estates and persons that we have in ours.

And for preventinge of oppression, etc: is there no waye to helpe that, but by breache of Rule? shall we runne into manifest iniustice, for feare of I know not what future danger of it? is there not a cleare waye of helpe in suche cases, by Appeal, or Petition, to the highest Authoritye? If this will not releiue, in a particular case, we shall then be in a very ill Case, for all our prescript penaltyes. Besides, there may be such a generall Lawe made (as in magna Charta) that may prevent the overthrowinge of mens estates, or lands, etc: 478by Fines, etc: (and I think it as needfull, as any Lawe or Libertye we haue) whereby the Judges may be restrayned, within certaine limitts, which (if occasion should require to exceede) may be referred to the Generall Court. And in Corporal punishments, a Libertye in suche and suche Cases, to redeeme them at a certaine rate: This would sufficiently assure the proper persons and estates, from any great oppression, if withall, our Courts of Judicature, were kept but by 3 or 5 magistrates at most, which may well be ordered, without any deviation from our Patent. and so the greater number of magistrates should be free from ingagement in any Case, which might come to a reveiw vpon Appeal or Petition.

It is an error so to conceive of Lawes, as if they could not be perfecte without penaltyes annexed, for they are as truely distinct as light and darknesse: Lawe was Created with and in man, and so is naturall to him: but penaltye is positiue and accidentall. Lawe is bonum simpliciter, but poena is simpliciter malum in subiecto: therefore Lawes may be declared and given, without any penaltyes annexed.

Isay. 10: 1: Woe to them that Decree unrighteous Decrees: and write greivousnesse, which they haue prescribed: so that where the penaltye proues greiveous by the vnrighteousnesse of a prescript Decree, it will drawe a woe after it, as well as vnrighteous sentence: Deut: 25: 15: thou shalt have a perfect and a iust weight and measure: If God be so stricte in Commutative Justice, that every Acte therein must be by a iust and perfecte Rule, what warrant have we, to thinke that we maye dispence distributive or vindictive Justice to our brethren by gesse, when we prescribe a certaine measure to an incertaine meritt.

But it wilbe obiected: volenti non fit iniuria: the people givinge vs power to make lawes to binde them, they doe implicitly give their Consent to them. To this it may be Answeared: that where they putt themselues into our power to binde them to Lawes and penalties, they can intende no other but suche as are iust and righteous: and althoughe their implicit Consent may binde them to outward obedience, yet it neither tyes them to satisfaction, nor frees suche Lawmakers from vnrighteousnesse, nor the Law it self from iniustice; nor will suche a Lawe be a sufficient warrant to the Conscience of the Iudge, to pronounce suche a sentence, as he knowes to be apparently disproportionable to the offence brought before him.

Althoughe my Arguments conclude against prescript penaltyes indefinitely, yet I doe not deny but, they may be lawfull in some Cases: for an vniversall affirmatiue proposition may be true, though it comprehend not euery particular, as when we say All the Country was Rated to such a 479charge, no man will conceive that everye person and every woman etc, was rated; and when we saye suche an one was cast out by the wholl churche, this is a true speeche (to common intendment) though every particular member did not consent. Where any penalty may be prescribed by a Rule, so as the Judge may pronounce a Just sentence, I have formerly, and shall still ioyne in it.

We will now Answeare such obiections, as are made, against the libertye required to be lefte to Judges, in their Sentences.

1 ob: Judges are subject to Temptations, if their sentences be not prescribed.

Answ. 1: We may not transgresse Rules, to avoyde Temptations: for God will have his servants exercised with temptations, that the power of his grace may be made manifest in mans Infirmitye: A master will not sende his servant about his businesse in a darke night, to avoyde Temptations of ill companye or the like, which he may possibly meet with in the daye tyme: nor will any Christian man take in his Corne or haye before it be readye, for avoyding a Temptation of takinge it in vpon the Sabbaothe: we doe not forbidd wine to be brought to vs, thought we knowe it is a great occasion of Temptation to sinne.

2: Those, who make Lawes, and prescribe penaltyes, are also men subiecte to Temptations: and may allso miscarrye through Ignorance, heedlessnesse, or sinister respects: and it is not hard, to prove, that the Lawe makers, in all States, have Committed more and more pernitious errors then the Judges: as 40 tymes greater then the law of God illegible and illegible as much illegible to the ruin of a mans estate illegible and there is good reason for it: 1: they supposinge themselves tyed to no Rule, nor lyable to any accompt, are in the more danger of being misledd: 2: he who prescribes a punishment in a Case, wherein no person stands before him to be iudged, canot be so warye of sheddinge innocent blood, or sparinge a guilty person, or committinge other iniustice, as the Iudge who hathe the person and Cause before him: when Saule prescribed that Capitall sentence against suche as should tast ought before night if Jonathans case had then been before him, he would have Judged otherwise. Dangers more remote are ever lesse heeded. 3: Lawe makers have not so cleare a Callinge, in prescribinge penaltyes, as Judges have in passinge sentences, and therefore, there cannot be expected the like blessinge of Assistance from God. Judges are necessarylye tyed to give sentence in a Cause before them but Lawe makers are not so bounde to prescribe sentences.

3: If a Judge should sometymes erre in his Sentence, through misprision, 480or Temptation: the error or fault is his owne: and the iniurye or damage extends not farr: but an error in the Lawe, resteth vpon the Ordinance it selfe, and the hurte of it may reache far, even to posteritye. there is more vnrighteousnesse, and dishonor, in one vniust Lawe, then in many vniust Sentences.

2 ob: God prescribed some certaine penaltyes: and that in Cases where offences doe usually vary in their degree and meritt:

Answ: 1: We have shewed before how God might doe it, in regard of his absolute soveraintye.

2: It is no Iniustice in him, because the least degree of the smalest offence, (before his Judgment seate) deserves the highest degree of punishment.

3: In some of these (as in Thefte) he variethe the punishment according to the measure and nature of the offence. In others as deathe, perpetuall servitude, etc: beinge the Just Reward of suche offences in their simple nature, they have not a fitt Subiecte, for an increace of punishment to take place vpon: he who is putt to deathe for Adulterye, cannot dye againe for Incest concurringe therewith and he who is adiudged to perpetuall servitude for stealinge 100li cannot be capeable of a further sentence for batterye.

4: In all, or most of those Offences, the penaltye was in waye of satisfaction, to such as were damnified thereby and in such cases, Justice will not allowe a Judge any Libertye to alter or remitt any thinge: nor can any circumstance leade to qualification: a Riche man hath the same right to satisfaction for his goods stollen from him, as a poore man: and the poorest mans life is the life of man, as well as a Princes:

5: These Presedents were given to the Judges, not with direction to prescribe penaltyes to other Lawes that had none: but with Commandment to give Judgement in all Cases, by the equitye of these: (there are some formes of prayer and sermons in scripture, but this dothe not prove ergo all etc.)

3 ob: If the determination of the Lawe were lefte to the Judges, that were Arbitrary Goverment: and is it not in reason the same, if the punishment of the Transgression of the Lawe, be committed to them?

Answ: The Reason is not alike in bothe Cases.

1: The determination of Lawe belonges properly to God: he is the onely Lawgiver: but he hathe given power and gifts to men to interprett his Lawes: and this belonges principally to the highest Authoritye in a Common Wealth and subordinately to other magistrates and Judges accordinge to their severall places.

2: The Lawe is allwayes the same, and not changeable by any circumstances of aggravation, or extenuation, as the penaltye is: and therefore 481drawes a certaine guilt vpon every Transgressor whither he sinne of Ignorance, or against Knowledge, or presumptuously: and therefore Lawes or the Interpretation 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 Lawe is more generall and lyeth as a burden, vpon all persons and at all tymes: but the penaltye reaches to none, but transgressors and to suche, onely when they are brought vnder sentence, and not before.

4: It is needfull that all men should knowe the Lawes, and their true meaninges, because they are bound to them, and the safety and wellfare of the Common Wealth consists in the observation of them: therefore it is needfull they should be stated and declared, as soone as is possible; but there is not the like necessitye or vse of declaringe their penaltyes before hande, for they who are godly and vertuous, will observe them, for Conscience, and Vertues sake: and for suche as must be helde in by feare of punishment, it is better they should be kept in feare of a greater punishment then to take libertye to transgresse, through the Contempt of a smaller.

4 ob: It is safe for the Common Wealth to have penaltyes prescribed, because we know not what magistrates or Judges we may have heerafter.

Answ: 1: God foresawe, that there would be corrupt Judges in Israell, yet he lefte most penaltyes, to their determination.

2: There is no wisdome of any State can so provide, but that in many thinges of greatest concernment, they must confide in some men: and so it is in all humane Affaires: the wisest merchants, and the most warye, are forced to repose great trust in the wisdome and faithfullnesse of their servants, Factors, masters of their Shipps, etc. All States, in their generalls of warre, Admiralls, Embassadors, Treasurers, etc: and these are Causes of more public Consequence, then the Sentence of a Judge in matters of misdemeanor, or other smaler offences.

3: When we have provided against all common, and probable events, we may and ought to trust God for safety from suche dangers, as are onely possible, but not likely, to come vpon vs: especially when our strivinge to prevent suche possible dangers, may hazard the deprivation, or weakninge of a present good; or may drawe those, or other evills, neerer vpon vs.4

This discourse is runne out to more length then was intended: the Conclusion is this: The Goverment of the Massachusetts consists of Magistrates and Freemen: in the one is placed the Authoritye, in the other the Libertye of the Common Wealth either hath power to Acte, both alone, and both togither, yet by a distinct power, the one of Libertye, the other of Authoritye: the Freemen Act of them selues in Electinge their magistrates and Officers: the magistrates Acte alone in all occurrences out of Court: and both Acte togither in the Generall Court: yet all limited by certaine Rules, bothe in the greater and smaller affaires: so as the Government is Regular in a mixt Aristocratie, and no waye Arbitrary.