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and both together, yet by a distinct power, the one of liberty, the other of authority. The Freemen act of themselves in electing their magistrates and officers; the magistrates act alone in all occurrences out of court; and both act together in the General Court; yet all limited by certain 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, viz.:
In the first part thereof:
1. Concerning the definition therein made, 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 General 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 dangerous positions:
1. That general rules are sufficient to clear 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 authority.
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 consequences, are pernicious and dangerous.
per Robert Bridges,
By order, etc. Governor Winthrop's comments on this report, as indorsed by him on the same sheet on which he had carefully 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 negatively; 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 distinction between the members of that body, giving authority 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 authority.
In the second part:
1. 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 present, are such a rule as may be required by the judges in all their administrations, because a rule may from thence be lerived (if God give wisdom to discern it) in any particular 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 offices (being God'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 allegeth 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 deliver them in his own and some other learned and godly
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 do. 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 questionable, 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 penalties at their own pleasures; these might be judged to be pernicious doctrines, because the example is unquestionable, etc.
THE AUTHOR'S REVIEW OF 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 intention 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 arguments 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 prescribed, 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
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 prescript penalties in some cases, 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 necessity 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 consent, 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: