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:

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.

THE INSTRUMENT OF

GOVERNMENT

(1653)

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

T

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

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

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

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

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

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

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

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

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

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

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