Introductory Note
In 1644, a dispute arose in Massachusetts between the magistrates and the deputies
as to the respective powers of the two branches of the legislature, the deputies claiming
judicial authority. Winthrop's opposition to this claim brought upon him and other
magistrates the charge of arbitrary government; and in order to clear up the situation he
drew up the following document. It is important not only for its presentation of
Winthrop's personal views, but for the light it throws upon the origins of the political
institutions of the Commonwealth.
Arbitrary Government is where a people have men set over them, without their choice or
allowance; who have power to govern them, and judge their causes without a rule.
God only hath this prerogative; whose sovereignty is absolute, and whose will is a
perfect rule, and reason itself; so as for man to usurp such authority, is tyranny, and
impiety.
Where the people have liberty to admit or reject their governors, and to require the
rule by which they shall be governed and judged, this is not an arbitrary government.
That the Government of the Massachusetts is such will appear (1) by the foundation of
it; (2) by the positive laws thereof; (3) by the constant practice which proves a custom,
than which (when it is for common good) there is no law of man more inviolable.
1. The foundation of this Government is the King's Letters Patents: this gave them
their form and being, in disposing a certain number of persons into a body politic;
whereby they became then (in such a politic respect) as one single person, consisting of
several members, and appoint to each its proper place: it regulates their power and
motions as might best conduce to the preservation and good of the whole body.
The parties or members of this body politic are reduced under two kinds, Governor and
Company, or Freemen: to the Governor it adds a Deputy, and eighteen Assistants: in these
is the power of authority placed, under the name of the Governor (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 capacity of freedom, or immunity, but such a liberty as hath
power to act upon the chiefest means of its own welfare (yet in a way of liberty, not of
authority) and that under two general heads, election and counsel: (1) they have liberty
to elect yearly (or oftener if occasion require) all their Governors and other their
general officers, viz., such as should have influence (either judicial or ministerial)
into all parts of the jurisdiction; (2) they have liberty of counsel in all the General
Assemblies, so as without their counsel and consent no laws, decrees, or orders, of any
public nature or concernment, not any taxes, impositions, impresses, or other burdens of
what kind soever, can be imposed upon them, their families or estates, by any authority in
the Government: which notwithstanding remains still a distinct member, even in those
General Assemblies: otherwise our state should be a mere Democratic, if all were Governors
or magistrates, and none left to be an object of government, which cannot fall out in any
kind of Aristocratie.
To make this clear, we will set down the very words of the Patent.
"(1) The words of Constitution of this body politic are these, A, B, C, and all
such others as shall hereafter be admitted and made free of the Company and society
hereafter mentioned shall be, etc., one body politic and Corporate, in fact and name, by
the name of the Governor and Company of the Massachusetts Bay in New England. And that
from henceforth forever there shall be one Governor, one Deputy - Governor, and eighteen
Assistants of the same Company, to be from time to time, constituted, elected, and chosen,
out of the Freemen of the said Company for the time being; in such manner and form, as
hereafter in these presents is expressed, which said officers shall apply themselves to
take care for the best disposing and ordering of the great business and affairs of, for,
and concerning, the said lands and premises hereby mentioned to be granted, and the
plantation thereof, and the government of the people there."
(2) The distribution of power follows, in these words ensuing: - "That the
Government of the said Company for the time being or, in his absence by occasion of
sickness or otherwise, the Deputy - Governor for the time being, shall have authority from
time to time, upon all occasions, to give order, for the assembling of the said Company,
and calling them together, to consult and advise of the businesses and affairs of the said
Company.
"And that the said Governor, Deputy - Governor, and Assistants of the said Company
for the time being shall or may once every month or oftener at their pleasures, assemble
and hold and keep a Court, or Assembly of themselves, for the better ordering and
directing of their affairs:
"And that any seven, or more persons of the Assistants, together with the Governor
or Deputy - Governor so assembled, shall be said, taken, held, and reputed to be, and
shall be, a full and sufficient Court or Assembly of the said Company, for the handling,
ordering, and dispatching of all such businesses and occurents, as shall from time to time
happen touching or concerning the said Company or plantation."
Then follows a clause, whereby liberty is granted to hold four general Courts in the
year, wherein (with the advice and consent of the major part of the freemen) they may
admit others to the freedom of the Company, they may make all subordinate officers, and
make laws and constitutions, for their welfare and good government.
The Annual Election Of Officers
Then followeth a clause for the annual election of all their officers in these words
ensuing:
"That yearly once in the year forever, namely on the last Wednesday in Easter Term
yearly, the Governor, Deputy - Governor, and Assistants of the said Company shall be in
the General Court or Assembly, to be held for that day or time, newly chosen for the year
ensuring, by such greater part of the aid Company, for the time being, then and there
present as is aforesaid."
Then follows another branch, whereby, in any of their General Courts, any insufficient,
or delinquent Officer (of what sort soever) may be removed and another forthwith put in
place.
The last clause is for the governing of the inhabitants within the plantation. For it
being the manner for such as procured patents for Virginia, Bermudas, and the West Indies,
to keep the chief government in the hands of the Company residing in England (and so this
was intended and with much difficulty we got it abscinded) this clause is inserted in this
and all other patents whereby the Company in England might establish a Government and
Officers here in any form used in England, as Governor and Council, Justices of the Peace,
Mayor, Bailiffs, etc.; and accordingly Mr. Endicott and others with him, were established
a Governor and Council here, before the Government was transferred hither: and that clause
is expressed in these words:
"It shall and may be lawful, to and for the Governor, etc., and such of the
Freemen of the said Company for the time being, as shall be assembled in any of their
General Courts aforesaid, or in any other Courts to be specially summoned and assembled
for that purpose, or the greater part of them, whereof the Governor or Deputy - Governor,
and six of the Assistants to be always even; from time to time, to make, ordain, and
establish all manner of wholesome and reasonable orders, laws, statutes, and ordinances,
directions, and instructions, not contrary to this our Realm of England: as well for
settling of the forms and ceremonies of government and magistracy, fit and necessary for
the said plantation, and inhabitants there, and for naming and styling of all sorts of
officers, both superior and inferior, which they shall find needful for that Government
and plantation; and the distinguishing and setting forth of the several duties, powers,
and limits of every such office, etc., for disposing and ordering the election of such of
the said officers as shall be annual, etc., and for setting down forms of oaths and for
ministering of them, etc., and for the directing, ruling, and disposing of all matters and
things, whereby our said people inhabitants there, may be so religiously, peaceably, and
civilly governed, etc."
Thus it appears that this Government is not arbitrary in the foundation of it, but
regulated in all the parts of it.
(2) It will be yet further found by the positive laws thereof:
And first by that of (3) 14-1634; where it is declared, that the General Court only may
make freemen; make laws,; choose General Officers, as Governor, Deputy, Assistants,
Treasurer, etc.; remove such; set out their power and duty; raise moneys; dispose of lands
in proprieties; not to be dissolved but by consent of the major part. The freemen of the
several towns may send their deputies to every General Court who may do all that the body
of freemen might do, except in election of magistrates and officers.
And in the sixty - seventh Liberty it is thus described, viz. - "It is the
constant liberty of the freemen, to choose yearly, at the Court of Election, out of the
freemen, all the general officers of this jurisdiction. If they please to discharge them
at the Court of Elections, by vote, they may do it without showing cause; but if at any
other General Court, we hold it du justice, that the reasons thereof be alleged and
proved. By general officers, we mean our Governor, Deputy - Governor, Assistants,
Treasurer, General of our wars, and our Admiral at sea; and such as are, or may be
hereafter, of like general nature."
(3) According to these fundamental rules and positive laws, the course of government
hath been carried on in the practice of public administrations to this very day, and where
any considerable obliquity hath been discerned, it hath been soon brought to the rule and
redressed; for it is not possible in the infancy of a plantation, subject to so many and
variable occurrents to hold so exactly to rules, as when a state is once settled.
By what hath been already manifested, this Government is freed from any semblance of
arbitrariness either in the form of it, or the general officers in it, which is the first
branch in the description of Arbitrary Government.
The other branch, (wherein the main question lies) is concerning the rule so as if it
shall appear also, that the Governor and other officers are prescribed such 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 thereof) is, in no respect, arbitrary.
I might show a clear rule out of the Patent itself, but seeing it is more particularly
(and as it were membratim) delineated in later laws, I will begin there, (3) 25 - 1636. It
was ordered, that until a body of fundamental laws (agreeable to the Word of God) were
established, all causes should be heard and determined, according to the laws already in
force; and where no law is, there as near the law of God as may be. To omit many
particular laws enacted upon occasion, I will set down only the first authority in the
Liberties: which is as here followeth: - "No man's life shall be taken away; no man's
honor or good name shall be stained; no man's person shall be arrested, restrained,
banished, dismembered, or any ways punished; no man shall be deprived of his wife or
children; no man's goods or estate shall be taken away from him, or any way damaged, under
colour of law or countenance of authority, unless it be by the virtue or equity of some
express law of the country, warranting the same, established by a General Court and
sufficiently published; or, in case of the defect of a law in any particular case, by the
word of God, and in capital cases, or in cases concerning dismembering or banishment,
according to that word, to be judged by the General Court."
By these it appears, that the officers of this body politic have a rule to walk by in
all their administrations, which rule is the Word of God, and such conclusions and
deductions as are, or shall be, regularly drawn from thence.
All commonwealths have had some principles, or fundamentals, from which they have
framed deductions to particular cases, as occasion hath required. And though no
Commonwealth ever had, or can have, a particular positive rule to dispense power or
justice by in every single case, yet where the fundamentals or general rule hold forth
such direction as no great damage or injury can befall, either the whole, or any
particular part, by any unjust sentence or disorderly proceeding, without manifest breach
of such general rule, there the rule may be required, and so the Government is regular and
not arbitrary.
The fundamentals which God gave to the Commonwealth of Israel were a sufficient rule to
them, to guide all their affairs; we having 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 wisdom to discern it.
There are some few cases only (beside the capitals) wherein the penalty is prescribed;
and the Lord could have done the like in others, if He had so pleased; but having
appointed governments upon earth, to be His vicegerents. He hath given them those few as
presidents to direct them and to exercise His gifts in them (Deut. xvii; 9, 10, 11). In
the most difficult cases, the judges in supreme authority were to show the sentence of the
law; whence three things may be observed: (I) this sentence was to be declared out of the
law established, though not obvious to common understanding; (2) this was to be expected
in that ordinance; therefore (v. 19,) the King was to have a copy of the law, and to read
them all the days of his life: (3) such a sentence was not ordained to be provided before
the case fell out, but pro re nata, when occasion required, God promised to be present in
his own ordinance, to improve such gifts as he should please to confer upon such as he
should call to place of government. In the Scripture there are some forms of prayers and
of sermons set down; yet no man will infer from thence that ministers should have sermons
and prayers prescribed them for every occasion; for that would destroy the ordinance of
the ministry, i. e., a reading priest might serve in that office, without any learning or
other gifts of the Spirit. So if all penalties were prescribed, the jury should state the
case, and the book hold forth the sentence, and any schoolboy might pronounce it; then
what need were there of any special wisdom, learning, courage, zeal or faithfulness in a
judge?
This being so great a question now on foot, about prescript penalties it will be of use
to search as deep into it as we may by the light of Scripture, approved patterns, and
other rational arguments; not tying our discourse to method, but laying down things as
they come to hand.
England in the right constitution, is not an Arbitrary Government, nor is ours of the
Massachusetts; yet juries, both there and here, give damages which (in vulgar sense) are
arbitrary, in most cases: as in actions of slander, trespass, battery, breach of covenant,
etc.; all which concern the people's liberties no less than fines and other penalties; And
if twelve men, who have no calling to office, may (in expectation of God's assistance) be
trusted with men's estates in a way of distributive justice without a prescript rule,
etc., why may not those whose calling and office hath promise of assistance, have like
trust reposed in them, in vindictive justice?
In the Liberties enacted here of purpose to prevent Arbitrary Government, there are
near forty Laws, to the violation whereof no penalty is prescribed, nor was ever moved.
God may pronounce sentence against an offender, before the offence be committed, both
by his absolute sovereignty, and also because he foreseeth all facts, with all their
circumstances; and besides the least degree of the same offense deserves more than that
full punishment before his Justice, but man must proceed according to his Commission; by
which he cannot sentence another before he hath offended; and the offence examined,
proved, laid to the rule, and weighed by all considerable circumstances, and liberty given
to the party to answer for himself: nor is there anything more prejudicial to a subject's
liberty, than to be sentenced before his cause be heard.
England is a state of long standing, yet we have had more positive and more wholesome
laws enacted in our short time than they had in many hundred years. They have indeed some
laws with prescribed penalties annexed, but they are for the most part so small as do
undervalue the least degree of those offences; they have twelve pence for an Oath: five
shillings for drunkenness, etc.; but for all great offences and misdemeanors, as perjury,
forgery, conspiracies, cozenages, oppression, riot, batteries, and other breaches of the
peace, etc., there is no penalty prescribed; how it is in other states in Europe, I cannot
relate (because we know not their laws) otherwise than what appears in their histories,
where we find some great offences punished by the discretion of their judges.
Justice ought to render to every man according to his deservings, eye for eye, hand for
hand, etc.; and (Luke xii.47) the servant, who transgressed against knowledge was to be
beaten with more stripes than he who transgressed of ignorance. If we had a law, that
every lie should be punished forty shillings, and two offenders should be convict at the
same time, the one a youth of honest conversation, never known to lie before; and now,
suddenly surprised with fear of some discredit, had told a lie wherein was no danger of
harm to any other; the other an old notorious liar, and his lie contrived of purpose for a
pernicious end: it were not just to punish both these alike. As forty shillings were too
little for the one, so it were too much for the other. Besides, penalties (we know) coming
of paena, should cause pain or grief to the offenders. It must be an affliction, yet not a
destruction except in capital or other heinous crimes: but in prescript penalties,
authority shoots at adventure; if the same penalty hits a rich man, it pains him not, it
is no affliction to him; but if it lights upon a poor man, it breaks his back.
Every law must be just in every part of it, but if the penalty annexed be unjust, how
can it be held forth as a just law? To prescribe a penalty must be by some rule, otherwise
it is an usurpation of God's prerogative; but where the law - makers, or declarers, cannot
find a rule for prescribing a penalty, if it come before the judges pro re nata, there it
is determinable by a certain rule, viz., by an ordinance set up of God for that purpose,
which hath a sure promise of Divine assistance (Exo. xxi. 22; Deut. xvi. 18). "Judges
and Officers shalt thou make, etc., and they shall judge the people with just
judgment." (Deut. xxv. 1, 2, and xvii. 9, 10, 11). If a Law were made that if any man
were found drunken he should be punished by the judges according to the merit of his
offense, this is a just law, because it is warranted by a rule; but if a certain penalty
were prescribed, this would not be just, because it wants a rule, but when such a case is
brought before the judges, and the quality of the person and other circumstances
considered, they shall find a rule to judge by; as if Nabal, and Uriah, and one of the
strong drunkards of Ephraim, were all three together accused before the judges for
drunkenness, they could so proportion their several sentences, according to the several
natures and degrees of their offences, as a just and divine sentence might appear in them
all; for a divine sentence is in the lips of the King, his mouth transgresseth not in
judgment (Prov. xvi.), but no such promise was ever made to a paper sentence of human
authority or invention. He who hath promised His servants to teach them what to answer,
even in that hour when they shall be brought before judgment seats, etc., will also teach
his ministers, the judges, what sentence to pronounce, if they will also observe His word
and trust in Him. "Care not for the morrow, etc." is a rule of general extent,
to all cases where our providence may either cross with some rule or ordinance of His, or
may occasion us to rely more upon our own strengths and means, than upon His grace and
blessing. In the sentence which Solomon gave between the two harlots (1 Kings iii. 28), it
is said that all Israel heard of the judgment which the King had judged; and they feared
the King, for they saw that the wisdom of God was in him to do judgment. See here, how the
wisdom of God was glorified, and the authority of the judge strengthened by this sentence;
whereas in men's prescript sentences neither of these can be attained; but if the sentence
hit right, all is ascribed to the wisdom of our ancestors; if otherwise, it is endured as
a necessary evil, since it may not be altered.
Prescript penalties take away the use of admonition, which is also a divine sentence
and an ordinance of God, warranted by Scripture, as appears in Solomon's admonition to
Adonijah, and Nehemiah's to those that break the Sabbath (Ecel. xii. 11, 12); "The
words of the wise are as goads, and as nails fastened by the masters of assemblies - by
these (my son) be admonished." (Prov. xxix. 1; Isa. xi. 4; Prov. xvii. 10). "A
reproof entereth more into a wise man, than a hundred stripes into a fool."
Judges are Gods upon earth; therefore, in their administrations, they are to hold forth
the wisdom and mercy of God, (which are His attributes) as well as His Justice, as
occasion shall require either in respect of the quality of the person, or for a more
general good, or evident repentance, in some cases of less public consequence, or avoiding
imminent danger to the State, and such like prevalent considerations. (Exo. xxii. 8. 9).
For theft and such like trespasses, double restitution was appointed by the Law; but (Lev.
vi. 2, 5) in such cases, if the party confessed his sin and brought his offering, he
should only restore the principal and add a fifth part thereto. Adultery and incest
deserved death, by the Law, in Jacob's time (as appears by Judah his sentence, in the case
of Tamar); yet Reuben was punished only with the loss of his birthright, because he was a
patriarch. David his life was not taken away for his adultery and murder (but he was
otherwise punished) in respect of public interest and advantage; he was valued at ten
thousand common men. Bathsheba was not put to death for her adultery, because the King's
desire had with her the force of a law. Abiathar was not put to death for his treason,
because of his former good service and faithfulness. Shemei was reprieved for a time, and
had his pardon in his own power, because of his profession of repentance in such a season.
Those which broke the Sabbath in Nehemiah his time, were not put to death, but first
admonished, because the state was not settled, etc. Joab was not put to death for his
murders in David's time, for avoiding imminent public danger; the sons of Zeruiah had the
advantage of David, by their interest in the men of war; and the commonwealth could not
yet spare them. But if judges be tied to a prescript punishment, and no liberty left for
dispensation or mitigation in any case, there is no place left for wisdom or mercy;
whereas Solomon sayeth (Prov. xx. 28): "Mercy and truth preserve the King, and his
throne is upholden by mercy."
I would know by what rule we may take upon us, to prescribe penalties where God
prescribes none. If it be answered, "From God's example," I might reply (1), God
prescribes none except capital, but only in such cases as are between party and party, and
that is rather in a way of satisfaction to the party wronged, than to justice and
intention. (2), God's examples are not warrants for us to go against God's rules; our rule
is to give a just sentence, which we cannot do (in most cases) before the offence is
committed, etc. Five shillings now may be more than twenty shillings hereafter, and e
contra. If examples in Scripture be warrant for us to proceed against rule, then we may
pass by murders, adulteries, idolatries, etc., without capital punishments; then we might
put the children to death for parents' offences, etc.
If we should inquire also of the end of prescribing penalties, it can be no other but
this, to prevent oppression of the people by unjust sentences; then I am again to seek 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 own ordinance. Who must give the lawmakers
wisdom, etc., to prescribe sentences? Must not God? And may we not then trust Him to give
as much wisdom, etc., to such judges as He shall set up after us? It is said when they had
judges by God's appointment, God was with the judge. So may we still believe that if our
posterity all choose judges according to God, He will be with the judges in time to come,
as well as with the present.
It may be further demanded, what power we have over the property and estates of the
succeeding generations? If we should now prescribe where our posterity should dwell, what
quantities of land they should till, what places they should tend unto, what diet they
should use, what clothes they should wear, etc., by what rule could we challenge this
power? Yet we have example for some of these in Scripture, as of Jonadab, the son of
Rechab, etc.; but no man will take these as warrants for us to lay such injunctions upon
those which come after us, because they are to have the same interest and freedom in their
estates and properties that we have in ours.
And for preventing of oppression, etc., is there no way to help that but by breach of
rule? Shall we run into manifest injustice for fear of I know not what future danger of
it? Is there not a clear way of help in such cases, by appeal, or petition, to the highest
authority? If this will not relieve in a particular case, we shall then be in a very ill
case for all our prescript penalties. Besides, there may be such a general law made (as in
Magna Charta) that may prevent the overthrowing of men's estates, or lands, etc., by
fines, etc., (and I think it is needful, as any law of Liberty we have), whereby the
judges may be restrained within certain limits, which, (if occasion should require to
exceed,) may be referred to the General Court; and in capital punishments, a liberty in
such and such cases, to redeem them at a certain rate. This would sufficiently assure the
proper persons and estates from any great oppression, if, withal, our Courts of Judicature
were kept but by three or five 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
engagement in any case which might come to a review upon appeal or petition.
It is an error so to conceit of laws as if they could not be perfect without penalties
annexed, for they are as truly distinct as light and darkness. Law was created with and in
man, and so is natural to him, but penalty is positive and accidental. Law is bonum
simpliciter, but poena is simpliciter malum in subiecto; therefore laws may be declared
and given without any penalties annexed.
Isa. x, 1: Woe to them that decree unrighteous decrees: and write grievousness, which
they have prescribed; so that where the penalty proves grievous by the unrighteousness of
a prescript decree, it will draw a woe after it, as well as unrighteous sentences; (Deut.
xxv, 15) Thou shall have a perfect and just weight and measure." If God be so strict
in commutative justice that every act therein must be by a just and perfect rule, what
warrant have we to think that we may dispense distributive or vindictive justice to our
brethren by guess, when we prescribe a certain measure to an uncertain merit?
But it will be objected, volenti non fit injuria; the people giving us power to make
laws to bind them, they do implicitly give their consent to them. To this it may be
answered that where they put themselves into our power to bind them to laws and penalties,
they can intend no other but such as are just and righteous; and although their implicit
consent may bind them to outward obedience, yet it neither ties them to satisfaction, nor
frees such law - makers from unrighteousness, nor the law itself from injustice, nor will
such a law be a sufficient warrant to the conscience of the judge, to pronounce such a
sentence as he knows to be apparently disproportionable to the offence brought before him.
Although my argument conclude against prescript penalties indefinitely, yet I do not
deny but they may be lawful in some cases; for an universal affirmative position may be
true, though it comprehend not every particular, as when we say, "All the country was
rated to such a charge," no man will conceive that every person and every woman,
etc., was rated; and when we say such an one was cast out by the whole church, this is a
true speech (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 join in it.
Response To Objections Regarding Judges' Sentencing Liberties
We will now answer such objections as are made against the liberty required to be left
to judges in their sentences.
1, ob. Judges are subject to temptations, if their sentences be not prescribed.
Ans. 1. We may not transgress rules, to avoid temptations; for God will have His
servants exercised with temptations, that the power of His grace may be made manifest in
man's infirmity. A master will not send his servant about his business in a dark night, to
avoid temptations of ill - company or the like which he may possibly meet with in the day
time; nor will any Christian man take in his corn or hay before it be ready, for avoiding
a temptation of taking it in upon the Sabbath. We do not forbid wine to be brought to us,
though we know it is a great occasion of temptation to sin.
2. Those who make laws and prescribe penalties are also men subject to temptations, and
may also miscarry through ignorance, heedlessness, or sinister respects; and it is not
hard to prove, that the lawmakers, in all states, have committed more, and more pernicious
errors than the judges, and there is good reason for it: (1) they, supposing themselves
tied to no rule, nor liable to any account, are in the more danger of being mislead; (2)
he who prescribes a punishment in a case wherein no person stands before him to be judged,
cannot be so wary of shedding innocent blood, or sparing a guilty person, or committing
other injustice, as the judge who hath the person and cause before him. When Saul
prescribed that capital sentence against such as should taste aught before night, if
Jonathan's case had then been before him, he could have judged otherwise. (3) Lawmakers
have not so clear a calling in prescribing penalties, as judges have in passing sentences,
and therefore there cannot be expected the like blessing of assistance 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 righteousness 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. 1. 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 punishment 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 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 precendents 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.
I. 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 principally 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
transgressor, whether he sin of ignorance, or against knowledge, or presumptuously; and
therefore laws or the interpretations 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 are brought
under sentence, and not before.
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 penalties prescribed, because we know
not what magistrates or judges we may have hereafter.
Ans. 1. God foresaw that there would be corrupt judges in Israel, yet He left most
penalties to their determination.
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, are 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 probable 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 weakening of a present good, or may draw those or other evils nearer upon
us.
This discourse is run out to more length than was intended: 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 the commonwealth. Either hath power to act,
both alone, 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 and 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 derived (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 vice - gerents) 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 if 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 if 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: 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 stand and fall with them.
John Winthrop
