Chapter XVII: Part 17

Qest: What sodmiticall acts are to be punished with death, & what very facte (ipso facto) is worthy of death, or, if y^e fact it selfe be not capitall, what circomstances concurring may make it capitall?

Ans: In y^e judiciall law (y^e moralitie wherof concerneth us) it is manyfest y^t carnall knowledg of man, or lying w^{th} man, as with woman, cum penetratione corporis, was sodomie, to be punished with death; what els can be understood by Levit: 18. 22. & 20. 13. & Gen: 19. 5? 2^ly. It seems allso y^t this foule sine might be capitall, though ther was not penitratio corporis, but only contactus & fricatio us[q~] ad effusionem seminis, for these reasons: [245] 1. Because it was sin to be punished with death, Levit. 20. 13. in y^e man who was lyen withall, as well as in him y^t lyeth with him; now his sin is not mitigated wher ther is not penitration, nor augmented wher it is; wheras its charged upon y^e women, y^t they were guilty of this unnaturall sine, as well as men, Rom. 1. 26. 27. Y^e same thing doth furder apeare, 2. because of y^t proportion betwexte this sin & beastialitie, wherin if a woman did stand before, or aproach to, a beast, for y^t end, to lye downe therto, (whether penetration was or not,) it was capitall, Levit: 18. 23. & 20. 16. 3^{ly}. Because something els might be equivalent to penetration wher it had not been, viz. y^e fore mentioned acts with frequencie and long continuance with a high hand, utterly extinguishing all light of nature; besids, full intention and bould attempting of y^e foulest acts may seeme to have been capitall here, as well as coming presumptuously to slay with guile was capitall. Exod: 21. 14.

Yet it is not so manyfest y^t y^e same acts were to be punished with death in some other sines of uncleannes, w^ch yet by y^e law of God were capitall crimes; besids other reasons, (1.) because sodomie, & also beastialitie, is more against y^e light of nature then some other capitall crimes of unclainnes, which reason is to be attended unto, as y^t which most of all made this sin capitall; (2.) because it might be co[=m]ited with more secrecie & less suspition, & therfore needed y^e more to be restrained & suppresed by y^e law; (3^ly) because ther was not y^e like reason & degree of si[=n]ing against family & posteritie in this sin as in some other capitall sines of uncleannes.

2. Quest: How farr a magistrate may extracte a confession from a delinquente, to acuse him selfe of a capitall crime, seeing Nemo tenetur prodere seipsum.

Ans: A majestrate cannot without sin neglecte diligente inquision into y^e cause brought before him. Job 29. 16. Pro: 24. 11. 12. & 25. 2. (2^ly.) If it be manifest y^t a capitall crime is committed, & y^t comone reporte, or probabilitie, suspition, or some complainte, (or y^e like,) be of this or y^t person, a magistrate ought to require, and by all due means to procure from y^e person (so farr allready bewrayed) a naked confession of y^e fact, as apears by y^t which is morall & of perpetuall equitie, both in y^e case of uncertaine murder, Deut: 21. 1. 9. and slander, Deut: 22. 13. 21; for though nemo tenetur prodere seipsum, yet by that w^ch may be known to y^e magistrat by y^e forenamed means, he is bound thus to doe, or els he may betray his countrie & people to y^e heavie displeasure of God, Levit: 18. 24. 25. Jos: 22. 18. Psa: 106. 30; such as are i[=n]ocente to y^e sinfull, base, cruell lusts of y^e profane, & such as are delinquents, and others with them, into y^e hands of y^e stronger temptations, & more bouldness, & hardnes of harte, to co[=m]ite more & worse villany, besids all y^e guilt & hurt he will bring upon him selfe. (3^ly.) To inflicte some punishmente meerly for this reason, to extracte a conffession of a capitall crime, is contrary to y^e nature of vindictive justice, which always hath respecte to a kno[=w] crime co[=m]itited by y^e person punished; and it will therfore, for any thing which can before be knowne, be y^e provocking and forcing of wrath, compared to y^e wringing of y^e nose, Pro: 30. 33. which is as well forbiden y^e fathers of y^e countrie as of y^e family, Ephe. 6. 4. as produsing many sad & dangerous effects. That an oath (ex officio) for such a purpose is no due means, hath been abundantly proved by y^e godly learned, & is well known.

Q. 3. In what cases of capitall crimes one witnes with other circomstances shall be sufficiente to convince? or is ther no conviction without 2. witneses?

Ans: In taking away y^e life of man, one witnes alone will not suffice, ther must be tow, or y^t which is instar; y^e texts are manifest, Numb: 35. 30. Deut: 17. 6. & 19. 15. 2^ly. Ther may be conviction by one witnes, & some thing y^t hath y^e force of another, as y^e evidencie of y^e fact done by such an one, & not an other; unforced confession when ther was no fear or danger of suffering for y^e fact, hand writings acknowledged & confessed.

JOHN REYNOR.

[246] _M^r. Partrich his writing, in ans: to y^e questions._

What is y^t sodomiticall acte which is to be punished with death?

Though I conceive probable y^t a voluntary effusion of seed per modum
concubitus of man with man, as of a man with woman, though in
concubitu ther be not penetratio corporis, is y^t sin which is
forbiden, Levit: 18. 22. & adjudged to be punished with death, Levit:
20. 13. because, though ther be not penetratio corporis, yet ther may
be similitudo concubitus muliebris, which is y^t the law specifieth;
yet I dar not be con-[EK] (1.) because, Gen: 19. 5. y^e intended acte
of y^e Sodomits (who were y^e first noted maisters of this unnaturall
act of more then brutish filthines) is expressed by carnall copulation
of man with woman: Bring them out unto us, y^t we may know them;
(2^ly.) because it is observed among y^e nations wher this unnaturall
unclainnes is co[=m]ited, it is w^th penetration of y^e body; (3^ly.)
because, in y^e judiciall proceedings of y^e judges in England, y^e
indict: so rune (as I have been informed).

Q. How farr may a magistrat extracte a confession of a capitall crime
from a suspected and an accused person?

Ans. I conceive y^t a magistrate is bound, by carfull examenation of
circomstances & waighing of probabilities, to sifte y^e accused, and
by force of argumente to draw him to an acknowledgment of y^e truth;
but he may not extracte a confession of a capitall crime from a
suspected person by any violent means, whether it be by an oath
imposed, or by any punishmente inflicted or threatened to be
inflicted, for so he may draw forth an acknowledgmente of a crime from
a fearfull i[=n]ocente; if guilty, he shall be compelled to be his
owne accuser, when no other can, which is against y^e rule of justice.

Q. In what cases of capitall crimes one witnes with other
circomstances shall be sufficente to convicte; or is ther no
conviction without two witnesses?

Ans: I conceive y^t, in y^e case of capitall crimes, ther can be no
safe proceedings unto judgmente without too witnesses, as Numb: 35.
30. Deut: 19. 15. excepte ther can some evidence be prodused as
aveilable & firme to prove y^e facte as a witnes is, then one witnes
may suffice; for therin y^e end and equitie of y^e law is attained.
But to proceede unto sentence of death upon presumptions, wher
probably ther may subesse falsum, though ther be y^e testimony of one
wittnes, I supose it cannot be a safe way; better for such a one to be
held in safe custodie for further triall, I conceive.

RALPH PARTRICH.

_The Answer of M^r. Charles Chancy._

An contactus et fricatio us[q~] ad seminis effusi[=o]nem sine
penetratione corporis sit sodomia morte plectenda?

Q. The question is what sodomiticall acts are to be punished w^th
death, & what very facte committed, (ipso facto,) is worthy of death,
or if y^e facte it selfe be not capitall, what circomstances concuring
may make it capitall. The same question may be asked of rape, inceste,
beastialitie, unnaturall sins, presumtuous sins. These be y^e words of
y^e first question.

Ans: The answer unto this I will lay downe (as God shall directe by
his word & spirite) in these following conclusions: (1.) That y^e
judicials of Moyses, that are appendances to y^e morall law, &
grounded on y^e law of nature, or y^e decalogue, are i[=m]utable, and
ppetuall, w^ch all orthodox devines acknowledge; see y^e authors
following. Luther, Tom. 1. Whitenberge: fol. 435. & fol. 7.
Melanethon, in loc: com loco de conjugio. Calvin, 1. 4. Institu. c. 4.
sect. 15. Junious de politia Moysis, thes. 29. & 30. Hen: Bulin:
Decad. 3. sermo. 8. Wolf: Muscu. loc: com: in 6. precepti explicaci:
Bucer de regno Christi, 1. 2. c. 17. Theo: Beza, vol: 1. de hereti:
puniendis, fol. 154. Zanch: in 3. praecept: Ursin: Pt. 4. explicat.
contra John. Piscat: in Aphorismi Loc. de lege dei aphorism. 17. And
more might be added. I forbear, for brevities sake, to set downe their
very words; this being y^e constante & generall oppinion of y^e best
devines, I will rest in this as undoubtedly true, though much more
might be said to confirme it.

2. That all y^e si[=n]es mentioned in y^e question were punished with
death by y^e judiciall law of Moyses, as adultry, Levit: 20. 10. Deut:
22. 22. Esech: 16. 38. Jhon. 8. 5. which is to be understood not only
of double adultrie, when as both parties are maried, (as some
conceive,) but whosoever (besids her husband) lyes with a married
woman, whether y^e man be maried or not, as in y^e place, Deut: 22.
22. or whosoever, being a maried man, lyeth with another woman (besids
his wife), as P. Martire saith, loc: com: which in diverce respects
maks y^e sine worse on y^e maried mans parte; for y^e Lord in this
law hath respect as well to publick honesty, (the sin being so
prejudicall to y^e church & state,) as y^e private wrongs (saith
Junious). So incest is to be punished with death, Levit: 20. 11. 22.
Beastiality likwise, Lev: 20. 15. Exod: 22. 19. Raps in like maner,
Deut: 22. 25. Sodomie in like sort, Levit: 18. 22. & 20. 13. And all
presumptuous sins, Numb: 15. 30. 31.

3. That y^e punishmente of these foule sines w^th death is grounded on
y^e law of nature, & is agreeable to the morall law. (1.) Because y^e
reasons a[=n]exed shew them to be perpetuall. Deut. 22. 22. So shalt
thou put away evill. Incest, beastiality, are caled confusion, &
wickednes. (2.) Infamie to y^e whole humane nature, Levit: 22. 12.
Levit: 18. 23. Raps are as murder, Deut: 22. 25. Sodomie is an
abomination, Levit: 22. 22. [247] No holier & juster laws can be
devised by any man or angele then have been by y^e Judg of all y^e
world, the wisdome of y^e Father, by whom kings doe raigne, &c. (3.)
Because, before y^e giving of y^e Law, this punishmente was anciently
practised, Gen: 26. 11. 38. 29. 39. 20. & even by the heathen, by y^e
very light of nature, as P. Martire shews. (4^ly.) Because y^e land is
defiled by such sins, and spews out y^e inhabitants, Levit: 18. 24,
25. & that in regard of those nations y^t were not acquainted w^th the
law of Moyses. 5. All y^e devins above specified consent in this, that
y^e unclean acts punishable with death by y^e law of God are not only
y^e grose acts of uncleannes by way of carnall copulation, but all y^e
evidente attempts therof, which may appeare by those severall words
y^t are used by y^e spirite of God, expressing y^e sins to be punished
with death; as y^e discovering of nakednes, Levit: 18. 20. which is
retegere pudenda, as parts p^r euphemismum (saith Junius), or detegere
ad cubandum (saith Willett), to uncover y^e shamefull parts of y^e
body (saith Ainsworth), which, though it reaches to y^e grose acts,
yet it is plaine it doth comprehend ye other foregoing immodest
attempts, as contactum, fricationem, &c.; likwise ye phrase of lying
with, so often used, doth not only signifie carnall copulation, but
other obscene acts, p^{r}ceding y^e same, is implyed in Pauls word
[Greek: arsenokoitai], 1. Cor: 6. 9. & men lying with men, 1. Tim: 1.
9. men defiling them selves w^th mankind, men burning with lust
towards men, Rom: 1. 26. & Levit: 18.[EL] 22. sodom & sin going after
strange flesh, Jud: v. 7. 8. and lying with mankind as with a woman,
Levit: 18. 22. Abulentis says y^t it signifies omnes modos quibus
masculus masculo abutatur, changing y^e naturall use into y^t which is
against nature, Rom: 1. 26. arrogare sibi cubare, as Junius well
translats Levit: 20. 15. to give consente to lye withall, so
approaching to a beast, & lying downe therto, Levit: 20. 16. ob solum
conatu[EM] (saith Willett) or for going about to doe it. Add to this a
notable speech of Zepperus de legibus (who hath enough to end
controversies of this nature). L. 1. he saith: In crimine adulterii
voluntas (understanding manifeste) sine effectu subsecuto de jure
attenditur; and he proves it out of good laws, in these words:
Solicitatores[EN] alie[=n]um nupti[=a]m item[q~] matrimon[=i]um
interpellatores, etsi effectu sceleris potiri non possunt, propter
voluntatem tamen perniciosae libidinis extra ordinem puniuntur; nam
generale est quidem affect[=u] sine effectu [non] puniri, sed
contrarium observatur in atrocioribus & horum similibus.

5. In concluding punishments from y^e judiciall law of Moyses y^t is
perpetuall, we must often p^{r}ceed by analogicall proportion &
interpretation, as a paribus similibus, minore ad majus, &c.; for ther
will still fall out some cases, in every co[=m]one-wealth, which are
not in so many words extante in holy write, yet y^e substance of y^e
matter in every kind (I conceive under correction) may be drawne and
concluded out of y^e scripture by good consequence of an equevalent
nature; as, for example, ther is no express law against destroying
conception in y^e wombe by potions, yet by anologie with Exod: 21. 22,
23. we may reason y^t life is to be given for life. Againe, y^e
question, An contactus & fricatio, &c., and methinks y^t place Gen:
38. 9. in y^e punishmente of Onans sin, may give some cleare light to
it; it was (saith Pareus) beluina crudelitas quam Deus pari loco cum
parricidio habuit, nam semen corrumpere, quid fuit aliud quam hominem
ex semine generandum occidere? Propterea juste a Deo occisus est.
Observe his words. And againe, Discamus quantopere Deus abominetur
omnem seminis genitalis abusum, illicit[=a] effusionem, &
corruption[=e], &c., very pertinente to this case. That allso is
considerable, Deut: 25. 11, 12. God comanded y^t, if any wife drue
nigh to deliver her husband out of y^e hand of him y^t smiteth him,
&c., her hand should be cutt off. Yet such a woman in y^t case might
say much for her selfe, y^t what she did was in trouble & perplexitie
of her minde, & in her husbands defence; yet her hand must be cutt of
for such impuritie (and this is morall, as I conceive). Then we may
reason from y^e less to y^e greater, what greevous sin in y^e sight of
God it is, by y^e instigation of burning lusts, set on fire of hell,
to proceede to contactum & fricationem ad emissionem seminis, &c., &
y^t contra naturam, or to attempte y^e grosse acts of unnaturall
filthines. Againe, if y^t unnaturall lusts of men with men, or woman
with woman, or either with beasts, be to be punished with death, then
a pari naturall lusts of men towards children under age are so to be
punished.

6. Circumstantiae variant vis e actiunes, (saith y^e lawiers,) &
circomstances in these cases cannot possibly be all reck[=e]d up; but
God hath given laws for those causes & cases that are of greatest
momente, by which others are to be judged of, as in y^e differance
betwixte chanc medley, & willfull murder; so in y^e sins of
uncleannes, it is one thing to doe an acte of uncleannes by sudden
temptation, & another to lye in waite for it, yea, to make a co[=m]une
practise of it; this mightily augments & multiplies y^e sin. Againe,
some si[=n]es of this nature are simple, others compound, as y^t is
simple adultrie, or inceste, or simple sodomie; but when ther is a
mixture of diverce kinds of lust, as when adultery & sodomie &
[p=]^{r}ditio seminis goe togeather in y^e same acte of uncleannes,
this is capitall, double, & trible. Againe, when adultrie or sodomie
is co[=m]ited by [p=]fessors or church members, I fear it coms too
near y^e sine of y^e preists daughters, forbidden, & comanded to be
punished, Levit: 21. 9. besids y^e presumption of y^e si[=n]es of
such. Againe, when uncleannes is comited with those whose chastity
they are bound to [*)p]serve, this coms very nere the incestious
copulation, I feare; but I must hasten to y^e other questions.

[248] 2. Question y^e second, upon y^e pointe of examination, how farr
a magistrate may extracte a confession from a delinquente to accuse
him selfe in a capitall crime, seeing Nemo tenetur prodere seipsum.

Ans: The words of y^e question may be understood of extracting a
confession from a delinquente either by oath or bodily tormente. If it
be mente of extracting by requiring an oath, (ex officio, as some call
it,) & that in capitall crimes, I fear it is not safe, nor warented by
Gods word, to extracte a confession from a delinquente by an oath in
matters of life and death. (1.) Because y^e practise in y^e Scripturs
is other wise, as in y^e case of Achan, Jos: 7. 19. Give, I pray y^e,
glorie to y^e Lord God of Israll, and make a confession to him, & tell
me how thou hast done. He did not compell him to sweare. So when as
Johnathans life was indangered, 1. Sam. 14. 43. Saule said unto
Johnathan, Tell me what thou hast done; he did not require an oath.
And notable is y^t, Jer: 38. 14. Jeremiah was charged by Zedechias,
who said, I will aske the a thing, hide it not from me; & Jeremiah
said, If I declare it unto y^e, wilt thou not surely put me to death?
impling y^t, in case of death, he would have refused to answer him.
(2.) Reason shews it, & experience; Job: 2. 4. Skin for skin, &c. It
is to be feared y^t those words (whatsoever a man hath) will
comprehend also y^e conscience of an oath, and y^e fear of God, and
all care of religion; therfore for laying a snare before y^e guiltie,
I think it ought not to be donn. But now, if y^e question be mente of
inflicting bodyly torments to extracte a confession from a
mallefactor, I conceive y^t in maters of higest consequence, such as
doe conceirne y^e saftie or ruine of stats or countries, magistrats
may proceede so farr to bodily torments, as racks, hote-irons, &c., to
extracte a conffession, espetially wher presumptions are strounge; but
otherwise by no means. God sometims hids a sinner till his wickednes
is filled up.

Question 3. In what cases of capitall crimes, one witnes with other
circumstances shall be sufficente to convicte, or is ther no
conviction without 2. witneses?

Deut: 19. 25. God hath given an express rule y^t in no case one
witness shall arise in judgmente, espetially not in capitall cases.
God would not put our lives into y^e power of any one toungue. Besids,
by y^e examination of more wittneses agreeing or disagreeing, any
falshood ordenarilly may be discovered; but this is to be understood
of one witnes of another; but if a man witnes against him selfe, his
owne testimony is sufficente, as in y^e case of y^e Amalakite, 2. Sam:
1. 16. Againe, when ther are sure & certaine signes & evidences by
circumstances, ther needs no witnes in this case, as in y^e bussines
of Adoniah desiring Abishage y^e Shunamite to wife, that therby he
might make way for him selfe unto y^e kingdome, 1. King: 2. 23, 24.
Againe, probably by many concurring circumstances, if probability may
have y^e strength of a witnes, somthing may be this way gathered, me
thinks, from Sallomons judging betweexte y^e true mother, and y^e
harlote, 1. King. 3. 25. Lastly, I see no cause why in waighty
matters, in defecte of witneses & other proofes, we may not have
recourse to a lott, as in y^e case of Achan, Josu: 7. 16. which is a
clearer way in such doubtfull cases (it being solemnely & religiously
performed) then any other that I know, if it be made y^e last refuge.
But all this under correction.

The Lord in mercie directe & prosper y^e desires of his servants that
desire to walk before him in truth & righteousnes in the
administration of justice, and give them wisdome and largnes of harte.

CHARLES CHANNCY.

Besids y^e occation before mentioned in these writings concerning the abuse of those 2. children, they had aboute y^e same time a case of buggerie fell out amongst them, which occasioned these questions, to which these answers have been made.

And after y^e time of y^e writ[=i]g of these things befell a very sadd accidente of the like foule nature in this govermente, this very year, which I shall now relate. Ther was a youth whose name was Thomas Granger; he was servant to an honest man of Duxbery, being aboute 16. or 17. years of age. (His father & mother lived at the same time at Sityate.) He was this year detected of buggery (and indicted for y^e same) with a mare, a cowe, tow goats, five sheep, 2. calves, and a turkey. Horrible [249] it is to mention, but y^e truth of y^e historie requires it. He was first discovered by one y^t accidentally saw his lewd practise towards the mare. (I forbear perticulers.) Being upon it examined and co[=m]itted, in y^e end he not only confest y^e fact with that beast at that time, but sundrie times before, and at severall times with all y^e rest of y^e forenamed in his indictmente; and this his free-confession was not only in private to y^e magistrats, (though at first he strived to deney it,) but to sundrie, both ministers & others, and afterwards, upon his indictmente, to y^e whole court & jury; and confirmed it at his execution. And wheras some of y^e sheep could not so well be knowne by his description of them, others with them were brought before him, and he declared which were they, and which were not. And accordingly he was cast by y^e jury, and condemned, and after executed about y^e 8. of Sept^r, 1642. A very sade spectakle it was; for first the mare, and then y^e cowe, and y^e rest of y^e lesser catle, were kild before his face, according to y^e law, Levit: 20. 15. and then he him selfe was executed. The catle were all cast into a great & large pitte that was digged of purposs for them, and no use made of any part of them.

Upon y^e examenation of this person, and also of a former that had made some sodomiticall attempts upon another, it being demanded of them how they came first to y^e knowledge and practice of such wickednes, the one confessed he had long used it in old England; and this youth last spoaken of said he was taught it by an other that had heard of such things from some in England when he was ther, and they kept catle togeather. By which it appears how one wicked person may infecte many; and what care all ought to have what servants they bring into their families.

But it may be demanded how came it to pass that so many wicked persons and profane people should so quickly come over into this land, & mixe them selves amongst them? seeing it was religious men y^t begane y^e work, and they came for religions sake. I confess this may be marveilled at, at least in time to come, when the reasons therof should not be knowne; and y^e more because here was so many hardships and wants mett withall. I shall therfore indeavor to give some answer hereunto. And first, according to y^t in y^e gospell, it is ever to be remembred that wher y^e Lord begins to sow good seed, ther y^e envious man will endeavore to sow tares. 2. Men being to come over into a wildernes, in which much labour & servise was to be done aboute building & planting, &c., such as wanted help in y^t respecte, when they could not have such as y^ey would, were glad to take such as they could; and so, many untoward servants, sundry of them proved, that were thus brought over, both men & women kind: who, when their times were expired, became families of them selves, which gave increase hereunto. 3. An other and a maine reason hearof was, that men, finding so many godly disposed persons willing to come into these parts, some begane to make a trade of it, to transeport passengers & their goods, and hired ships for that end; and then, to make up their fraight and advance their profite, cared not who y^e persons were, so they had money to pay them. And by this means the cuntrie became pestered with many unworthy persons, who, being come over, crept into one place or other. 4. Againe, the Lords blesing usually following his people, as well in outward as spirituall things, (though afflictions be mixed withall,) doe make many to adhear to y^e people of God, as many followed Christ, for y^e loaves sake, John 6. 26. and a mixed multitud came into y^e willdernes with y^e people of God out of Eagipte of old, Exod. 12. 38; so allso ther were sente by their freinds some under hope y^t they would be made better; others that they might be eased of such burthens, and they kept from shame at home y^t would necessarily follow their dissolute courses. And thus, by one means or other, in 20. years time, it is a question whether y^e greater part be not growne y^e worser.

[250] I am now come to y^e conclusion of that long & tedious bussines betweene y^e partners hear, & them in England, the which I shall manifest by their owne letters as followeth, in such parts of them as are pertinente to y^e same.

_M^r. Sherleys to M^r. Attwood._

M^r. Attwood, my approved loving friend: Your letter of y^e 18. of
October last I have received, wherin I find you have taken a great
deall of paines and care aboute y^t troublesome bussines betwixte our
Plimoth partners & freinds, & us hear, and have deeply ingaged your
selfe, for which complements & words are no reall satisfaction, &c.
For y^e agreemente you have made with M^r. Bradford, M^r. Winslow, &
y^e rest of y^e partners ther, considering how honestly and justly I
am perswaded they have brought in an accounte of y^e remaining stock,
for my owne parte I am well satisfied, and so I thinke is M^r.
Andrewes, and I supose will be M^r. Beachampe, if most of it might
acrew to him, to whom y^e least is due, &c. And now for peace sake,
and to conclud as we began, lovingly and freindly, and to pass by all
failings of all, the conclude is accepted of; I say this agreemente
y^t you have made is condesended unto, and M^r. Andrews hath sent his
release to M^r. Winthrop, with such directions as he conceives fitt;
and I have made bould to trouble you with mine, and we have both
sealed in y^e presence of M^r. Weld, and M^r. Peeters, and some
others, and I have also sente you an other, for the partners ther, to
seale to me; for you must not deliver mine to them, excepte they seale
& deliver one to me; this is fitt and equall, &c.

Yours to co[=m]and in what I may or can,
JAMES SHERLEY.

June 14. 1642.

_His to y^e partners as followeth._

Loving freinds,

M^r. Bradford, M^r. Winslow, M^r. Prence, Captaine Standish, M^r.
Brewster, M^r. Alden, & M^r. Howland, give me leave to joyne you all
in one letter, concerning y^e finall end & conclude of y^t tedious &
troublsome bussines, & I thinke I may truly say uncomfurtable &
unprofitable to all, &c. It hath pleased God now to put us upon a way
to sease all suits, and disquieting of our spirites, and to conclude
with peace and love, as we began. I am contented to yeeld & make good
what M^r. Attwood and you have agreed upon; and for y^t end have sente
to my loving friend, M^r. Attwood, an absolute and generall release
unto you all, and if ther wante any thing to make it more full, write
it your selves, & it shall be done, provided y^t all you, either
joyntly or severally, seale y^e like discharge to me. And for y^t end
I have drawne one joyntly, and sent it to M^r. Attwood, with y^t I
have sealed to you. Mr. Andrews hath sealed an aquitance also, & sent
it to M^r. Winthrop, whith such directions as he conceived fitt, and,
as I hear, hath given his debte, which he maks 544^li. unto y^e
gentlemen of y^e Bay. Indeed, M^r. Welld, M^r. Peters, & M^r. Hibbens
have taken a great deale of paines with M^r. Andrews, M^r. Beachamp, &
my selfe, to bring us to agree, and to y^t end we have had many
meetings and spent much time aboute it. But as they are very religious
& honest gentle-men, yet they had an end y^t they drove at & laboured
to accomplish (I meane not any private end, but for y^e generall good
of their patente). It had been very well you had sent one over. M^r.
Andrew wished you might have one 3. parte of y^e 1200^li. & the Bay 2.
thirds; but then we 3. must have agreed togeather, which were a hard
mater now. But M^r. Weld, M^r. Peters, & M^r. Hibbens, & I, have
agreed, they giving you bond (so to compose with M^r. Beachamp, as) to
procure his generall release, & free you from all trouble & charge y^t
he may put you too; which indeed is nothing, for I am perswaded M^r.
Weld will in time gaine him to give them all that is dew to [251] him,
which in some sorte is granted allready; for though his demands be
great, yet M^r. Andrewes hath taken some paines in it, and makes it
appear to be less then I thinke he will consente to give them for so
good an use; so you neede not fear, that for taking bond ther to save
you harmles, you be safe and well. Now our accord is, y^t you must pay
to y^e gentle-men of y^e Bay 900^li.; they are to bear all chargs y^t
may any way arise concerning y^e free & absolute clearing of you from
us three. And you to have y^e other 300^li. &c.

Upon y^e receiving of my release from you, I will send you your bonds
for y^e purchass money. I would have sent them now, but I would have
M^r. Beachamp release as well as I, because you are bound to him in
them. Now I know if a man be bound to 12. men, if one release, it is
as if all released, and my discharge doth cutt them of; wherfore
doubte you not but you shall have them, & your commission, or any
thing els that is fitt. Now you know ther is tow years of y^e purchass
money, that I would not owne, for I have formerley certified you y^t
would but pay 7. years; but now you are discharged of all, &c.

Your loving and kind friend in what I may or can,
JAMES SHERLEY.

June 14. 1642.

The coppy of his release is as followeth.

Wheras diverce questions, differences, & demands have arisen &
depended betweene William Bradford, Edward Winslow, Thomas Prence,
Mylest Standish, William Brewster, John Allden, and John Howland,
gent: now or latly inhabitants or resident at New-Plimoth, in
New-England, on y^e one party, and James Sherley of London, marchante,
and others, in th' other parte, for & concerning a stocke & partable
trade of beaver & other comodities, and fraighting of ships, as y^e
White Angell, Frindship, or others, and y^e goods of Isaack Allerton
which were seazed upon by vertue of a leter of atturney made by y^e
said James Sherley and John Beachamp and Richard Andrews, or any other
maters concerning y^e said trade, either hear in Old-England or ther
in New-England or elsewher, all which differences are since by
mediation of freinds composed, compremissed, and all y^e said parties
agreed. Now know all men by these presents, that I, the said James
Sherley, in performance of y^e said compremise & agreemente, have
remised, released, and quite claimed, & doe by these presents remise,
release, and for me, myne heires, executors, & Administrators, and for
every of us, for ever quite claime unto y^e said William Bradford,
Edward Winslow, Thomas Prence, Myles Standish, William Brewster, John
Allden, & John Howland, and every of them, their & every of their
heires, executors, and administrators, all and all maner of actions,
suits, debts, accounts, rekonings, comissions, bonds, bills,
specialties, judgments, executions, claimes, challinges, differences,
and demands whatsoever, with or against y^e said William Bradford,
Edward Winslow, Thomas Prence, Myles Standish, William Brewster, John
Allden, and John Howland, or any of them, ever I had, now have, or in
time to come can, shall, or may have, for any mater, cause, or thing
whatsoever from y^e begining of y^e world untill y^e day of y^e date
of these presents. In witnes wherof I have hereunto put my hand &
seale, given the second day of June, 1642, and in y^e eighteenth year
of y^e raigne of our soveraigne lord, king Charles, &c.

JAMES SHERLEY.

Sealed and delivered in y^e presence of
THOMAS WELD,
HUGH PETERS,
WILLIAM HIBBINS.
ARTHUR TIRREY, Scr.
THO: STURGS, his servante.

M^r. Andrews his discharg was to y^e same effecte; he was by agreem[=e]te to have 500^li. of y^e money, the which he gave to them in y^e Bay, who brought his discharge and demanded y^e money. And they tooke in his release and paid y^e money according to agreem[=e]te, viz. one third of the 500^li. they paid downe in hand, and y^e rest in 4. equall payments, to be paid yearly, for which they gave their bonds. And wheras 44^li. was more demanded, they conceived they could take it of with M^r. Andrews, and therfore it was not in the bonde. [252] But M^r. Beachamp would not parte with any of his, but demanded 400^li. of y^e partners here, & sent a release to a friend, to deliver it to them upon y^e receite of y^e money. But his relese was not perfecte, for he had left out some of y^e partners names, with some other defects; and besids, the other gave them to understand he had not near so much due. So no end was made with him till 4. years after; of which in it plase. And in y^t regard, that them selves did not agree, I shall inserte some part of M^r. Andrews letter, by which he conceives y^e partners here were wronged, as followeth. This leter of his was write to M^r. Edmond Freeman, brother in law to M^r. Beachamp.

M^r. Freeman,

My love remembred unto you, &c. I then certified y^e partners how I
found M^r. Beachamp & M^r. Sherley, in their perticuler demands, which
was according to mens principles, of getting what they could;
allthough y^e one will not shew any accounte, and y^e other a very
unfaire and unjust one; and both of them discouraged me from sending
y^e partners my accounte, M^r. Beachamp espetially. Their reason, I
have cause to conceive, was, y^t allthough I doe not, nor ever
intended to, wrong y^e partners or y^e bussines, yet, if I gave no
accounte, I might be esteemed as guiltie as they, in some degree at
least; and they might seeme to be y^e more free from taxation in not
delivering their accounts, who have both of them charged y^e accounte
with much intrest they have payed forth, and one of them would likwise
for much intrest he hath not paid forth, as appeareth by his accounte,
&c. And seeing y^e partners have now made it appear y^t ther is
1200^li. remaining due between us all, and that it may appear by my
accounte I have not charged y^e bussines with any intrest, but doe
forgive it unto y^e partners, above 200^li. if M^r. Sherley & M^r.
Beachamp, who have betweene them wronged y^e bussines so many 100^li.
both in principall & intrest likwise, and have therin wronged me as
well and as much as any of y^e partners; yet if they will not make &
deliver faire & true accounts of y^e same, nor be contente to take
what by computation is more then can be justly due to either, that is,
to M^r. Beachamp 150^li. as by M^r. Allertons accounte, and M^r.
Sherleys accounte, on oath in chancerie; and though ther might be
nothing due to M^r. Sherley, yet he requirs 100^li. &c. I conceive,
seing y^e partners have delivered on their oaths y^e su[=m]e remaining
in their hands, that they may justly detaine y^e 650^li. which may
remaine in their hands, after I am satisfied, untill M^r. Sherley &
M^r. Beachamp will be more fair & just in their ending, &c. And as I
intend, if y^e partners fayrly end with me, in satisfing in parte and
ingaging them selves for y^e rest of my said 544^li. to returne back
for y^e poore my parte of y^e land at Sityate, so likwise I intend to
relinquish my right & intrest in their dear patente, on which much of
our money was laid forth, and also my right & intrest in their cheap
purchass, the which may have cost me first & last 350^li.[EO] But I
doubte whether other men have not charged or taken on accounte what
they have disbursed in y^e like case, which I have not charged,
neither did I conceive any other durst so doe, untill I saw y^e
accounte of the one and heard y^e words of y^e other; the which gives
me just cause to suspecte both their accounts to be unfaire; for it
seemeth they consulted one with another aboute some perticulers
therin. Therfore I conceive y^e partners ought y^e rather to require
just accounts from each of them before they parte with any money to
either of them. For marchants understand how to give an acounte; if
they mean fairley, they will not deney to give an accounte, for they
keep memorialls to helpe them to give exacte acounts in all
perticulers, and memoriall cannot forget his charge, if y^e man will
remember. I desire not to wrong M^r. Beachamp or M^r. Sherley, nor may
be silente in such apparente probabilities of their wronging y^e
partners, and me likwise, either in deneying to deliver or shew any
accounte, or in delivering one very unjuste in some perticulers, and
very suspitious in many more; either of which, being from
understanding marchants, cannot be from weaknes or simplisitie, and
therfore y^e more unfaire. So comending you & yours, and all y^e
Lord's people, unto y^e gratious protection and blessing of y^e Lord,
and rest your loving friend,

RICHARD ANDREWES.

Aprill 7. 1643.

This leter was write y^e year after y^e agreement, as doth appear; and what his judgmente was herein, y^e contents doth manifest, and so I leave it to y^e equall judgmente of any to consider, as they see cause.

Only I shall adde what M^r. Sherley furder write in a leter of his, about y^e same time, and so leave this bussines. His is as followeth on y^e other side.[EP]

[253] Loving freinds, M^r. Bradford, M^r. Winslow, Cap: Standish, M^r.
Prence, and y^e rest of y^e partners w^th you; I shall write this
generall leter to you all, hoping it will be a good conclude of a
generall, but a costly & tedious bussines I thinke to all, I am sure
to me, &c.

I received from M^r. Winslow a letter of y^e 28. of Sept: last, and so
much as concernes y^e generall bussines I shall answer in this, not
knowing whether I shall have opportunitie to write perticuler letters,
&c. I expected more letters from you all, as some perticuler
writs,[EQ] but it seemeth no fitt opportunity was offered. And now,
though y^e bussines for y^e maine may stand, yet some perticulers is
alltered; I say my former agreemente with M^r. Weld & M^r. Peters,
before they[ER] could conclude or gett any grante of M^r. Andrews,
they sought to have my release; and ther upon they sealed me a bond
for a 110^li. So I sente my acquittance, for they said without mine
ther would be no end made (& ther was good reason for it). Now they
hoped, if y^ey ended with me, to gaine M^r. Andrews parte, as they did
holy, to a pound, (at which I should wonder, but y^t I observe some
passages,) and they also hoped to have gotten M^r. Beachamps part, & I
did thinke he would have given it them. But if he did well understand
him selfe, & that acounte, he would give it; for his demands make a
great sound.[ES] But it seemeth he would not parte with it, supposing
it too great a sume, and y^t he might easily gaine it from you. Once
he would have given them 40^li. but now they say he will not doe that,
or rather I suppose they will not take it; for if they doe, & have
M^r. Andrewses, then they must pay me their bond of 110^li. 3 months
hence. Now it will fall out farr better for you, y^t they deal not
with Mr. Beachamp, and also for me, if you be as kind to me as I have
been & will be to you; and y^t thus, if you pay M^r. Andrews, or y^e
Bay men, by his order, 544^li. which is his full demande; but if
looked into, perhaps might be less. The man is honest, & in my
conscience would not wittingly doe wronge, yett he may forgett as well
as other men; and M^r. Winslow may call to minde wherin he forgetts;
(but some times it is good to buy peace.) The gentlemen of y^e Bay may
abate 100^li. and so both sids have more right & justice then if they
exacte all, &c. Now if you send me a 150^li. then say M^r. Andrews
full sume, & this, it is nere 700^li. M^r. Beachamp he demands 400^li.
and we all know that, if a man demands money, he must shew wherfore,
and make proofe of his debte; which I know he can never make good
proafe of one hunderd pound dew unto him as principall money; so till
he can, you have good reason to keep y^e 500^li. &c. This I proteste I
write not in malice against M^r. Beachamp, for it is a reall truth.
You may partly see it by M^r. Andrews making up his accounte, and I
think you are all perswaded I can say more then M^r. Andrews
concerning that accounte. I wish I could make up my owne as plaine &
easily, but because of former discontents, I will be sparing till I be
called; & you may injoye y^e 500^li. quietly till he begine; for let
him take his course hear or ther, it shall be all one, I will doe him
no wronge; and if he have not on peney more, he is less loser then
either M^r. Andrews or I. This I conceive to be just & honest; y^e
having or not having of his release matters not; let him make such
proafe of his debte as you cannot disprove, and according to your
first agreemente you will pay it, &c.

Your truly affectioned friend,
JAMES SHERLEY.

London, Aprill 27. 1643.

_Anno Dom: 1643._

I am to begine this year whith that which was a mater of great saddnes and mo[=u]ring unto them all. Aboute y^e 18. of Aprill dyed their Reve^d Elder, and my dear & loving friend, M^r. William Brewster; a man that had done and suffered much for y^e Lord Jesus and y^e gospells sake, and had bore his parte in well and woe with this poore persecuted church above 36. years [254] in England, Holand, and in this wildernes, and done y^e Lord & them faithfull service in his place & calling. And notwithstanding y^e many troubls and sorrows he passed throw, the Lord upheld him to a great age. He was nere fourskore years of age (if not all out) when he dyed. He had this blesing added by y^e Lord to all y^e rest, to dye in his bed, in peace, amongst y^e mids of his freinds, who mourned & wepte over him, and ministered what help & comforte they could unto him, and he againe recomforted them whilst he could. His sicknes was not long, and till y^e last day therof he did not wholy keepe his bed. His speech continued till somewhat more then halfe a day, & then failed him; and aboute 9. or 10. a clock that ev[=i]ng he dyed, without any pangs at all. A few howers before, he drew his breath shorte, and some few minuts before his last, he drew his breath long, as a man falen into a sound slepe, without any pangs or gaspings, and so sweetly departed this life unto a better.

I would now demand of any, what he was y^e worse for any former sufferings? What doe I say, worse? Nay, sure he was y^e better, and they now added to his honour. _It is a manifest token_ (saith y^e Apostle, 2. Thes: 1. 5, 6, 7.) _of y^e righeous judgmente of God that you may be counted worthy of y^e kingdome of God, for which ye allso suffer; seing it is a righteous thing with God to recompence tribulation to them y^t trouble you: and to you who are troubled, rest with us, when y^e Lord Jesus shall be revealed from heaven, with his mighty angels._ 1. Pet. 4. 14. _If you be reproached for y^e name of Christ, hapy are ye, for y^e spirite of glory and of God resteth upon you._ What though he wanted y^e riches and pleasurs of y^e world in this life, and pompous monuments at his funurall? yet y^e memoriall of y^e just shall be blessed, when y^e name of y^e wicked shall rott (with their marble monuments). Pro: 10. 7.