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ARBITRARY GOVERNMENT

DESCRIBED

AND THE

GOVERNMENT of the MASSACHUSETTS VINDICATED FROM THAT ASPERSION

BY JOHN WINTHROP

THEN DEPUTY-GOVERNOR OF THE COMMONWEALTH

(1644)

[In 1644, a dispute arose in Massachusetts between the magistrates and the deputies as to the respective powers of the two branches of the legislature, the deputies claiming judicial authority. Winthrop's opposition to this claim brought upon him and other magistrates the charge of arbitrary government; and in order to clear up the situation he drew up the following document. It is important not only for its presentation of Winthrop's personal views, but for the light it throws upon the origins of the political institutions of the Commonwealth.]

RBITRARY Government is where a people have men set over

A

them, without their choice or allowance; who have power to govern them, and judge their causes without a rule.

God only hath this prerogative; whose sovereignty is absolute, and whose will is a perfect rule, and reason itself; so as for man to usurp such authority, is tyranny, and impiety.

Where the people have liberty to admit or reject their governors, and to require the rule by which they shall be governed and judged, this is not an arbitrary government.

That the Government of the Massachusetts is such will appear (1) by the foundation of it; (2) by the positive laws thereof; (3) by the constant practice which proves a custom, than which (when it is for common good) there is no law of man more inviolable.

1. The foundation of this Government is the King's Letters Patents: this gave them their form and being, in disposing a certain number of persons into a body politic; whereby they became then (in such a politic respect) as one single person, consisting of several

members, and appoint to each its proper place: it regulates their power and motions as might best conduce to the preservation and good of the whole body.

The parties or members of this body politic are reduced under two kinds, Governor and Company, or Freemen: to the Governor it adds a Deputy, and eighteen Assistants: in these is the power of authority placed, under the name of the Governor (not as a person, but as a State) and in the other (which is named the Company) is placed the power of liberty:—which is not a bare passive capacity of freedom, or immunity, but such a liberty as hath power to act upon the chiefest means of its own welfare (yet in a way of liberty, not of authority) and that under two general heads, election and counsel: (1) they have liberty to elect yearly (or oftener if occasion require) all their Governors and other their general officers, viz., such as should have influence (either judicial or ministerial) into all parts of the jurisdiction; (2) they have liberty of counsel in all the General Assemblies, so as without their counsel and consent no laws, decrees, or orders, of any public nature or concernment, not any taxes, impositions, impresses, or other burdens of what kind soever, can be imposed upon them, their families or estates, by any authority in the Government: which notwithstanding remains still a distinct member, even in those General Assemblies: otherwise our state should be a mere Democratie, if all were Governors or magistrates, and none left to be an object of government, which cannot fall out in any kind of Aristocratie.

To make this clear, we will set down the very words of the Patent.

"(1) The words of Constitution of this body politic are these, A, B, C, and all such others as shall hereafter be admitted and made free of the Company and society hereafter mentioned shall be, etc., one body politic and Corporate, in fact and name, by the name of the Governor and Company of the Massachusetts Bay in New England. And that from henceforth forever there shall be one Governor, one Deputy-Governor, and eighteen Assistants of the same Company, to be from time to time, constituted, elected, and chosen, out of the Freemen of the said Company for the time being; in such manner and form, as hereafter in these presents is expressed, which said

officers shall apply themselves to take care for the best disposing and ordering of the great business and affairs of, for, and concerning, the said lands and premises hereby mentioned to be granted, and the plantation thereof, and the government of the people there."

(2) The distribution of power follows, in these words ensuing:"That the Government of the said Company for the time being or, in his absence by occasion of sickness or otherwise, the DeputyGovernor for the time being, shall have authority from time to time, upon all occasions, to give order, for the assembling of the said Company, and calling them together, to consult and advise of the businesses and affairs of the said Company.

"And that the said Governor, Deputy-Governor, and Assistants of the said Company for the time being shall or may once every month or oftener at their pleasures, assemble and hold and keep a Court, or Assembly of themselves, for the better ordering and directing of their affairs:

"And that any seven, or more persons of the Assistants, together with the Governor or Deputy-Governor so assembled, shall be said, taken, held, and reputed to be, and shall be, a full and sufficient Court or Assembly of the said Company, for the handling, ordering, and dispatching of all such businesses and occurrents, as shall from time to time happen touching or concerning the said Company or plantation."

Then follows a clause, whereby liberty is granted to hold four general Courts in the year, wherein (with the advice and consent of the major part of the freemen) they may admit others to the freedom of the Company, they may make all subordinate officers, and make laws and constitutions, for their welfare and good government.

Then followeth a clause for the annual election of all their officers in these words ensuing:

"That yearly once in the year forever, namely on the last Wednesday in Easter Term yearly, the Governor, Deputy-Governor, and Assistants of the said Company shall be in the General Court or Assembly, to be held for that day or time, newly chosen for the year ensuing, by such greater part of the said Company, for the time being, then and there present as is aforesaid."

Then follows another branch, whereby, in any of their General

Courts, any insufficient, or delinquent Officer (of what sort soever) may be removed and another forthwith put in place.

The last clause is for the governing of the inhabitants within the plantation. For it being the manner for such as procured patents for Virginia, Bermudas, and the West Indies, to keep the chief government in the hands of the Company residing in England (and so this was intended and with much difficulty we got it abscinded) this clause is inserted in this and all other patents whereby the Company in England might establish a Government and Officers here in any form used in England, as Governor and Council, Justices of the Peace, Mayor, Bailiffs, etc.; and accordingly Mr. Endicott and others with him, were established a Governor and Council here, before the Government was transferred hither: and that clause is expressed in these words:

"It shall and may be lawful, to and for the Governor, etc., and such of the Freemen of the said Company for the time being, as shall be assembled in any of their General Courts aforesaid, or in any other Courts to be specially summoned and assembled for that purpose, or the greater part of them, whereof the Governor or Deputy-Governor, and six of the Assistants to be always seven; from time to time, to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions, and instructions, not contrary to this our Realm of England: as well for settling of the forms and ceremonies of government and magistracy, fit and necessary for the said plantation, and inhabitants there, and for naming and styling of all sorts of officers, both superior and inferior, which they shall find needful for that Government and plantation; and the distinguishing and setting forth of the several duties, powers, and limits of every such office, etc., for disposing and ordering the election of such of the said officers as shall be annual, etc., and for setting down forms of oaths and for ministering of them, etc., and for the directing, ruling, and disposing of all matters and things, whereby our said people inhabitants there, may be so religiously, peaceably, and civilly governed, etc."

Thus it appears that this Government is not arbitrary in the foundation of it, but regulated in all the parts of it.

(2) It will be yet further found by the positive laws thereof:

And first by that of (3) 14-1634; where it is declared, that the General Court only may make freemen; make laws; choose General Officers, as Governor, Deputy, Assistants, Treasurer, etc.; remove such; set out their power and duty; raise moneys; dispose of lands in proprieties; not to be dissolved but by consent of the major part. The freemen of the several towns may send their deputies to every General Court who may do all that the body of freemen might do, except in election of magistrates and officers.

And in the sixty-seventh Liberty it is thus described, viz.—“It is the constant liberty of the freemen, to choose yearly, at the Court of Election, out of the freemen, all the general officers of this jurisdiction. If they please to discharge them at the Court of Elections, by vote, they may do it without showing cause; but if at any other General Court, we hold it due justice, that the reasons thereof be alleged and proved. By general officers, we mean our Governor, DeputyGovernor, Assistants, Treasurer, General of our wars, and our Admiral at sea; and such as are, or may be hereafter, of like general nature."

(3) According to these fundamental rules and positive laws, the course of government hath been carried on in the practice of public administrations to this very day, and where any considerable obliquity hath been discerned, it hath been soon brought to the rule and redressed; for it is not possible in the infancy of a plantation, subject to so many and variable occurrents to hold so exactly to rules, as when a state is once settled.

By what hath been already manifested, this Government is freed from any semblance of arbitrariness either in the form of it, or the general officers in it, which is the first branch in the description of Arbitrary Government.

The other branch, (wherein the main question lies) is concerning the rule so as if it shall appear also, that the Governor and other officers are prescribed such a rule, as may be required of them in all their administrations, then it must needs be granted, that this Government (even in the present state thereof) is, in no respect, arbitrary. I might show a clear rule out of the Patent itself, but seeing it is more particularly (and as it were membratim) delineated in later laws, I will begin there, (3) 25-1636. It was ordered, that until a

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