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.


All Directories