Qest: What sodmiticall acts are to be punished with death, & what very facte (ipso facto) is worthy of death, or, if ye fact it selfe be not capitall, what circomstances concurring may make it capitall?
Ans: In ye judiciall law (ye moralitie wherof concerneth us) it is manyfest yt carnall knowledg of man, or lying wth 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? 2ly. It seems allso yt this foule sine might be capitall, though ther was not penitratio corporis, but only contactus & fricatio usq̃ ad effusionem seminis, for these reasons: [245] 1. Because it was sin to be punished with death, Levit. 20. 13. in ye man who was lyen withall, as well as in him yt lyeth with him; now his sin is not mitigated wher ther is not penitration, nor augmented wher it is; wheras its charged upon ye women, yt they were guilty of this unnaturall sine, as well as men, Rom. 1. 26. 27. Ye same thing doth furder apeare, 2. because of yt proportion betwexte this sin & beastialitie, wherin if a woman did stand before, or aproach to, a beast, for yt end, to lye downe therto, (whether penetration was or not,) it was capitall, Levit: 18. 23. & 20. 16. 3ly. Because something els might be equivalent to penetration wher it had not been, viz. ye 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 ye 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 yt ye same acts were to be punished with death in some other sines of uncleannes, wch yet by ye law of God were capitall crimes; besids other reasons, (1.) because sodomie, & also beastialitie, is more against ye light of nature then some other capitall crimes of unclainnes, which reason is to be attended unto, as yt which most of all made this sin capitall; (2.) because it might be com̅ited with more secrecie & less suspition, & therfore needed ye more to be restrained & suppresed by ye law; (3ly) because ther was not ye like reason & degree of sin̅ing 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 ye cause brought before him. Job 29. 16. Pro: 24. 11. 12. & 25. 2. (2ly.) If it be manifest yt a capitall crime is committed, & yt comone reporte, or probabilitie, suspition, or some complainte, (or ye like,) be of this or yt person, a magistrate ought to require, and by all due means to procure from ye person (so farr allready bewrayed) a naked confession of ye fact, as apears by yt which is morall & of perpetuall equitie, both in ye case of uncertaine murder, Deut: 21. 1. 9. and slander, Deut: 22. 13. 21; for though nemo tenetur prodere seipsum, yet by that wch may be known to ye magistrat by ye forenamed means, he is bound thus to doe, or els he may betray his countrie & people to ye heavie displeasure of God, Levit: 18. 24. 25. Jos: 22. 18. Psa: 106. 30; such as are in̅ocente to ye sinfull, base, cruell lusts of ye profane, & such as are delinquents, and others with them, into ye hands of ye stronger temptations, & more bouldness, & hardnes of harte, to com̅ite more & worse villany, besids all ye guilt & hurt he will bring upon him selfe. (3ly.) To inflicte some punishmente meerly for this reason, to extracte a conffession of a capitall crime, is contrary to ye nature of vindictive justice, which always hath respecte to a know̅ crime com̅itited by ye person punished; and it will therfore, for any thing which can before be knowne, be ye provocking and forcing of wrath, compared to ye wringing of ye nose, Pro: 30. 33. which is as well forbiden ye fathers of ye countrie as of ye 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 ye 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 ye life of man, one witnes alone will not suffice, ther must be tow, or yt which is instar; ye texts are manifest, Numb: 35. 30. Deut: 17. 6. & 19. 15. 2ly. Ther may be conviction by one witnes, & some thing yt hath ye force of another, as ye evidencie of ye fact done by such an one, & not an other; unforced confession when ther was no fear or danger of suffering for ye fact, hand writings acknowledged & confessed.
[246] Mr. Partrich his writing, in ans: to ye questions.
What is yt sodomiticall acte which is to be punished with death?
Though I conceive probable yt 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 yt 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 yt the law specifieth; yet I dar not be con-[EK] (1.) because, Gen: 19. 5. ye intended acte of ye Sodomits (who were ye 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, yt we may know them; (2ly.) because it is observed among ye nations wher this unnaturall unclainnes is com̅ited, it is wth penetration of ye body; (3ly.) because, in ye judiciall proceedings of ye judges in England, ye 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 yt a magistrate is bound, by carfull examenation of circomstances & waighing of probabilities, to sifte ye accused, and by force of argumente to draw him to an acknowledgment of ye 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 in̅ocente; if guilty, he shall be compelled to be his owne accuser, when no other can, which is against ye 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 yt, in ye 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 ye facte as a witnes is, then one witnes may suffice; for therin ye end and equitie of ye law is attained. But to proceede unto sentence of death upon presumptions, wher probably ther may subesse falsum, though ther be ye 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.
The Answer of Mr. Charles Chancy.
An contactus et fricatio usq̃ ad seminis effusiōnem sine penetratione corporis sit sodomia morte plectenda?
Q. The question is what sodomiticall acts are to be punished wth death, & what very facte committed, (ipso facto,) is worthy of death, or if ye 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 ye words of ye 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 ye judicials of Moyses, that are appendances to ye morall law, & grounded on ye law of nature, or ye decalogue, are im̅utable, and ppetuall, wch all orthodox devines acknowledge; see ye 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. præcept: 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 ye constante & generall oppinion of ye best devines, I will rest in this as undoubtedly true, though much more might be said to confirme it.
2. That all ye sin̅es mentioned in ye question were punished with death by ye 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 ye man be maried or not, as in ye 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 ye sine worse on ye maried mans parte; for ye Lord in this law hath respect as well to publick honesty, (the sin being so prejudicall to ye church & state,) as ye 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 ye punishmente of these foule sines wth death is grounded on ye law of nature, & is agreeable to the morall law. (1.) Because ye reasons an̅exed shew them to be perpetuall. Deut. 22. 22. So shalt thou put away evill. Incest, beastiality, are caled confusion, & wickednes. (2.) Infamie to ye 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 ye Judg of all ye world, the wisdome of ye Father, by whom kings doe raigne, &c. (3.) Because, before ye giving of ye Law, this punishmente was anciently practised, Gen: 26. 11. 38. 29. 39. 20. & even by the heathen, by ye very light of nature, as P. Martire shews. (4ly.) Because ye land is defiled by such sins, and spews out ye inhabitants, Levit: 18. 24, 25. & that in regard of those nations yt were not acquainted wth the law of Moyses. 5. All ye devins above specified consent in this, that ye unclean acts punishable with death by ye law of God are not only ye grose acts of uncleannes by way of carnall copulation, but all ye evidente attempts therof, which may appeare by those severall words yt are used by ye spirite of God, expressing ye sins to be punished with death; as ye discovering of nakednes, Levit: 18. 20. which is retegere pudenda, as parts pr euphemismum (saith Junius), or detegere ad cubandum (saith Willett), to uncover ye shamefull parts of ye body (saith Ainsworth), which, though it reaches to ye 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, prceding ye same, is implyed in Pauls word [Greek: arsenokoitai], 1. Cor: 6. 9. & men lying with men, 1. Tim: 1. 9. men defiling them selves wth 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 yt it signifies omnes modos quibus masculus masculo abutatur, changing ye naturall use into yt 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 conatú[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] alien̅um nuptiām itemq̃ matrimonīum interpellatores, etsi effectu sceleris potiri non possunt, propter voluntatem tamen perniciosæ libidinis extra ordinem puniuntur; nam generale est quidem affectū sine effectu [non] puniri, sed contrarium observatur in atrocioribus & horum similibus.
5. In concluding punishments from ye judiciall law of Moyses yt is perpetuall, we must often prceed by analogicall proportion & interpretation, as a paribus similibus, minore ad majus, &c.; for ther will still fall out some cases, in every com̅one-wealth, which are not in so many words extante in holy write, yet ye substance of ye matter in every kind (I conceive under correction) may be drawne and concluded out of ye scripture by good consequence of an equevalent nature; as, for example, ther is no express law against destroying conception in ye wombe by potions, yet by anologie with Exod: 21. 22, 23. we may reason yt life is to be given for life. Againe, ye question, An contactus & fricatio, &c., and methinks yt place Gen: 38. 9. in ye 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, illicitā effusionem, & corruptionē, &c., very pertinente to this case. That allso is considerable, Deut: 25. 11, 12. God comanded yt, if any wife drue nigh to deliver her husband out of ye hand of him yt smiteth him, &c., her hand should be cutt off. Yet such a woman in yt case might say much for her selfe, yt 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 ye less to ye greater, what greevous sin in ye sight of God it is, by ye instigation of burning lusts, set on fire of hell, to proceede to contactum & fricationem ad emissionem seminis, &c., & yt contra naturam, or to attempte ye grosse acts of unnaturall filthines. Againe, if yt 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. Circumstantiæ variant vis e actiunes, (saith ye lawiers,) & circomstances in these cases cannot possibly be all reckēd 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 ye differance betwixte chanc medley, & willfull murder; so in ye 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 com̅une practise of it; this mightily augments & multiplies ye sin. Againe, some sin̅es of this nature are simple, others compound, as yt is simple adultrie, or inceste, or simple sodomie; but when ther is a mixture of diverce kinds of lust, as when adultery & sodomie & p̲rditio seminis goe togeather in ye same acte of uncleannes, this is capitall, double, & trible. Againe, when adultrie or sodomie is com̅ited by p̲fessors or church members, I fear it coms too near ye sine of ye preists daughters, forbidden, & comanded to be punished, Levit: 21. 9. besids ye presumption of ye sin̅es of such. Againe, when uncleannes is comited with those whose chastity they are bound to pʾserve, this coms very nere the incestious copulation, I feare; but I must hasten to ye other questions.
[248] 2. Question ye second, upon ye 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 ye 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 ye practise in ye Scripturs is other wise, as in ye case of Achan, Jos: 7. 19. Give, I pray ye, glorie to ye 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 yt, 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 ye, wilt thou not surely put me to death? impling yt, 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 yt those words (whatsoever a man hath) will comprehend also ye conscience of an oath, and ye fear of God, and all care of religion; therfore for laying a snare before ye guiltie, I think it ought not to be donn. But now, if ye question be mente of inflicting bodyly torments to extracte a confession from a mallefactor, I conceive yt in maters of higest consequence, such as doe conceirne ye 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 yt in no case one witness shall arise in judgmente, espetially not in capitall cases. God would not put our lives into ye power of any one toungue. Besids, by ye 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 ye case of ye Amalakite, 2. Sam: 1. 16. Againe, when ther are sure & certaine signes & evidences by circumstances, ther needs no witnes in this case, as in ye bussines of Adoniah desiring Abishage ye Shunamite to wife, that therby he might make way for him selfe unto ye kingdome, 1. King: 2. 23, 24. Againe, probably by many concurring circumstances, if probability may have ye strength of a witnes, somthing may be this way gathered, me thinks, from Sallomons judging betweexte ye true mother, and ye 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 ye 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 ye last refuge. But all this under correction.
The Lord in mercie directe & prosper ye 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.
Besids ye occation before mentioned in these writings concerning the abuse of those 2. children, they had aboute ye same time a case of buggerie fell out amongst them, which occasioned these questions, to which these answers have been made.
And after ye time of ye writīg 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 ye same) with a mare, a cowe, tow goats, five sheep, 2. calves, and a turkey. Horrible [249] it is to mention, but ye truth of ye historie requires it. He was first discovered by one yt accidentally saw his lewd practise towards the mare. (I forbear perticulers.) Being upon it examined and com̅itted, in ye end he not only confest ye fact with that beast at that time, but sundrie times before, and at severall times with all ye rest of ye forenamed in his indictmente; and this his free-confession was not only in private to ye magistrats, (though at first he strived to deney it,) but to sundrie, both ministers & others, and afterwards, upon his indictmente, to ye whole court & jury; and confirmed it at his execution. And wheras some of ye 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 ye jury, and condemned, and after executed about ye 8. of Septr, 1642. A very sade spectakle it was; for first the mare, and then ye cowe, and ye rest of ye lesser catle, were kild before his face, according to ye 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 ye 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 ye 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 yt begane ye 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 ye more because here was so many hardships and wants mett withall. I shall therfore indeavor to give some answer hereunto. And first, according to yt in ye gospell, it is ever to be remembred that wher ye Lord begins to sow good seed, ther ye 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 yt respecte, when they could not have such as yey 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 ye 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 ye people of God, as many followed Christ, for ye loaves sake, John 6. 26. and a mixed multitud came into ye willdernes with ye people of God out of Eagipte of old, Exod. 12. 38; so allso ther were sente by their freinds some under hope yt they would be made better; others that they might be eased of such burthens, and they kept from shame at home yt would necessarily follow their dissolute courses. And thus, by one means or other, in 20. years time, it is a question whether ye greater part be not growne ye worser.
[250] I am now come to ye conclusion of that long & tedious bussines betweene ye 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 ye same.
Mr. Sherleys to Mr. Attwood.
Mr. Attwood, my approved loving friend: Your letter of ye 18. of October last I have received, wherin I find you have taken a great deall of paines and care aboute yt 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 ye agreemente you have made with Mr. Bradford, Mr. Winslow, & ye rest of ye partners ther, considering how honestly and justly I am perswaded they have brought in an accounte of ye remaining stock, for my owne parte I am well satisfied, and so I thinke is Mr. Andrewes, and I supose will be Mr. Beachampe, if most of it might acrew to him, to whom ye 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 yt you have made is condesended unto, and Mr. Andrews hath sent his release to Mr. Winthrop, with such directions as he conceives fitt; and I have made bould to trouble you with mine, and we have both sealed in ye presence of Mr. Weld, and Mr. 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.
His to ye partners as followeth.
Loving freinds,
Mr. Bradford, Mr. Winslow, Mr. Prence, Captaine Standish, Mr. Brewster, Mr. Alden, & Mr. Howland, give me leave to joyne you all in one letter, concerning ye finall end & conclude of yt 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 Mr. Attwood and you have agreed upon; and for yt end have sente to my loving friend, Mr. 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 yt all you, either joyntly or severally, seale ye like discharge to me. And for yt end I have drawne one joyntly, and sent it to Mr. Attwood, with yt I have sealed to you. Mr. Andrews hath sealed an aquitance also, & sent it to Mr. Winthrop, whith such directions as he conceived fitt, and, as I hear, hath given his debte, which he maks 544li. unto ye gentlemen of ye Bay. Indeed, Mr. Welld, Mr. Peters, & Mr. Hibbens have taken a great deale of paines with Mr. Andrews, Mr. Beachamp, & my selfe, to bring us to agree, and to yt 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 yt they drove at & laboured to accomplish (I meane not any private end, but for ye generall good of their patente). It had been very well you had sent one over. Mr. Andrew wished you might have one 3. parte of ye 1200li. & the Bay 2. thirds; but then we 3. must have agreed togeather, which were a hard mater now. But Mr. Weld, Mr. Peters, & Mr. Hibbens, & I, have agreed, they giving you bond (so to compose with Mr. Beachamp, as) to procure his generall release, & free you from all trouble & charge yt he may put you too; which indeed is nothing, for I am perswaded Mr. 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 Mr. 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, yt you must pay to ye gentle-men of ye Bay 900li.; they are to bear all chargs yt may any way arise concerning ye free & absolute clearing of you from us three. And you to have ye other 300li. &c.
Upon ye receiving of my release from you, I will send you your bonds for ye purchass money. I would have sent them now, but I would have Mr. 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 ye purchass money, that I would not owne, for I have formerley certified you yt would but pay 7. years; but now you are discharged of all, &c.
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 ye 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 ye White Angell, Frindship, or others, and ye goods of Isaack Allerton which were seazed upon by vertue of a leter of atturney made by ye said James Sherley and John Beachamp and Richard Andrews, or any other maters concerning ye 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 ye said parties agreed. Now know all men by these presents, that I, the said James Sherley, in performance of ye 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 ye 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 ye 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 ye begining of ye world untill ye day of ye date of these presents. In witnes wherof I have hereunto put my hand & seale, given the second day of June, 1642, and in ye eighteenth year of ye raigne of our soveraigne lord, king Charles, &c.
Mr. Andrews his discharg was to ye same effecte; he was by agreemēte to have 500li. of ye money, the which he gave to them in ye Bay, who brought his discharge and demanded ye money. And they tooke in his release and paid ye money according to agreemēte, viz. one third of the 500li. they paid downe in hand, and ye rest in 4. equall payments, to be paid yearly, for which they gave their bonds. And wheras 44li. was more demanded, they conceived they could take it of with Mr. Andrews, and therfore it was not in the bonde. [252] But Mr. Beachamp would not parte with any of his, but demanded 400li. of ye partners here, & sent a release to a friend, to deliver it to them upon ye receite of ye money. But his relese was not perfecte, for he had left out some of ye 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 yt regard, that them selves did not agree, I shall inserte some part of Mr. Andrews letter, by which he conceives ye partners here were wronged, as followeth. This leter of his was write to Mr. Edmond Freeman, brother in law to Mr. Beachamp.
Mr. Freeman,
My love remembred unto you, &c. I then certified ye partners how I found Mr. Beachamp & Mr. Sherley, in their perticuler demands, which was according to mens principles, of getting what they could; allthough ye one will not shew any accounte, and ye other a very unfaire and unjust one; and both of them discouraged me from sending ye partners my accounte, Mr. Beachamp espetially. Their reason, I have cause to conceive, was, yt allthough I doe not, nor ever intended to, wrong ye partners or ye 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 ye more free from taxation in not delivering their accounts, who have both of them charged ye 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 ye partners have now made it appear yt ther is 1200li. remaining due between us all, and that it may appear by my accounte I have not charged ye bussines with any intrest, but doe forgive it unto ye partners, above 200li. if Mr. Sherley & Mr. Beachamp, who have betweene them wronged ye bussines so many 100li. both in principall & intrest likwise, and have therin wronged me as well and as much as any of ye partners; yet if they will not make & deliver faire & true accounts of ye same, nor be contente to take what by computation is more then can be justly due to either, that is, to Mr. Beachamp 150li. as by Mr. Allertons accounte, and Mr. Sherleys accounte, on oath in chancerie; and though ther might be nothing due to Mr. Sherley, yet he requirs 100li. &c. I conceive, seing ye partners have delivered on their oaths ye sum̅e remaining in their hands, that they may justly detaine ye 650li. which may remaine in their hands, after I am satisfied, untill Mr. Sherley & Mr. Beachamp will be more fair & just in their ending, &c. And as I intend, if ye partners fayrly end with me, in satisfing in parte and ingaging them selves for ye rest of my said 544li. to returne back for ye poore my parte of ye 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 350li.[EO] But I doubte whether other men have not charged or taken on accounte what they have disbursed in ye like case, which I have not charged, neither did I conceive any other durst so doe, untill I saw ye accounte of the one and heard ye words of ye 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 ye partners ought ye 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 ye man will remember. I desire not to wrong Mr. Beachamp or Mr. Sherley, nor may be silente in such apparente probabilities of their wronging ye 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 ye more unfaire. So comending you & yours, and all ye Lord's people, unto ye gratious protection and blessing of ye Lord, and rest your loving friend,
This leter was write ye year after ye agreement, as doth appear; and what his judgmente was herein, ye contents doth manifest, and so I leave it to ye equall judgmente of any to consider, as they see cause.
Only I shall adde what Mr. Sherley furder write in a leter of his, about ye same time, and so leave this bussines. His is as followeth on ye other side.[EP]