CHAPTER 13|Document 1
John Winthrop, The History of New England 1:360--63; 2:277, 279--831639 1645
[22 May 1639]
The court of elections was; at which time there was a small eclipse of the sun. Mr. Winthrop was chosen governour again, though some laboring had been, by some of the elders and others to have changed, not out of any dislike of him, (for they all loved and esteemed him,) but out of their fear lest it might make way for having a governour for life, which some had propounded as most agreeable to God's institution and the practice of all well ordered states. But neither the governour nor any other attempted the thing. . . . Another occasion of their jealousy was, the court, finding the number of deputies to be much increased by the addition of new plantations, thought fit, for the case both of the country and the court, to reduce all towns to two deputies. This occasioned some to fear, that the magistrates intended to make themselves stronger, and the deputies weaker, and so, in time, to bring all power into the hands of the magistrates; so as the people in some towns were much displeased with their deputies for yielding to such an order. Whereupon, at the next session, it was propounded to have the number of deputies restored; and allegations were made, that it was an infringement of their liberty; so as, after much debate, and such reasons given for diminishing the number of deputies, and clearly proved that their liberty consisted not in the number, but in the thing, divers of the deputies, who came with intent to reverse the last order, were, by force of reason, brought to uphold it; so that, when it was put to the vote, the last order for two deputies only was confirmed. Yet, the next day, a petition was brought to the court from the freemen of Roxbury, to have the third deputy restored. Whereupon the reasons of the court's proceedings were set down in writing, and all objections answered, and sent to such towns as were unsatisfied with this advice, that, if any could take away those reasons, or bring us better for what they did desire, we should be ready, at the next court, to repeal the said order.
The hands of some of the elders (learned and godly men) were to this petition, though suddenly drawn in, and without due consideration, for the lawfulness of it may well be questioned: for when the people have chosen men to be their rulers, and to make their laws, and bound themselves by oath to submit thereto, now to combine together (a lesser part of them) in a public petition to have any order repealed, which is not repugnant to the law of God, savors of resisting an ordinance of God; for the people, having deputed others, have no power to make or alter laws, but are to be subject; and if any such order seem unlawful or inconvenient, they were better prefer some reasons, etc., to the court, with manifestation of their desire to move them to a review, than peremptorily to petition to have it repealed, which amounts to a plain reproof of those whom God hath set over them, and putting dishonor upon them, against the tenor of the fifth commandment.
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Two of the magistrates and many of the deputies were of opinion that the magistrates exercised too much power, and that the people's liberty was thereby in danger; and other of the deputies (being about half) and all the rest of the magistrates were of a different judgment, and that authority was overmuch slighted, which, if not timely remedied, would endanger the commonwealth, and bring us to a mere democracy. By occasion of this difference, there was not so orderly carriage at the hearing, as was meet, each side striving unseasonably to enforce the evidence, and declaring their judgments thereupon, which should have been reserved to a more private debate, (as after it was,) so as the best part of two days was spent in this public agitation and examination of witnesses, etc. This being ended, a committee was chosen of magistrates and deputies, who stated the case, as it appeared upon the whole pleading and evidence, thought it cost much time, and with great difficulty did the committee come to accord upon it.
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[3 July 1645]
. . . presently after the lecture the magistrates and deputies took their places in the meeting house, and the people being come together, and the deputy governour [John Winthrop] placing himself within the bar, as at the time of the hearing, etc., the governour read the sentence of the court, without speaking any more, for the deputies had (by importunity) obtained a promise of silence from the magistrates. Then was the deputy governour desired by the court to go up and take his place again upon the bench, which he did accordingly, and the court being about to arise, he desired leave for a little speech, which was to this effect.
I suppose something may be expected from me, upon this charge that is befallen me, which moves me to speak now to you; yet I intend not to intermeddle in the proceedings of the court, or with any of the persons concerned therein. Only I bless God, that I see an issue of this troublesome business. I also acknowledge the justice of the court, and, for mine own part, I am well satisfied, I was publicly charged, and I am publicly and legally acquitted, which is all I did expect or desire. And though this be sufficient for my justification before men, yet not so before the God, who hath seen so much amiss in my dispensations (and even in this affair) as calls me to be humble. For to be publicly and criminally charged in this court, is matter of humiliation, (and I desire to make a right use of it,) notwithstanding I be thus acquitted. If her father had spit in her face, (saith the Lord concerning Miriam,) should she not have been ashamed seven days? Shame had lien upon her, whatever the occasion had been. I am unwilling to stay you from your urgent affairs, yet give me leave (upon this special occasion) to speak a little more to this assembly. It may be of some good use, to inform and rectify the judgments of some of the people, and may prevent such distempers as have arisen amongst us. The great questions that have troubled the country, are about the authority of the magistrates and the liberty of the people. It is yourselves who have called us to this office, and being called by you, we have our authority from God, in way of an ordinance, such as hath the image of God eminently stamped upon it, the contempt and violation whereof hath been vindicated with examples of divine vengeance. I entreat you to consider, that when you choose magistrates, you take them from among yourselves, men subject to like passions as you are. Therefore when you see infirmities in us, you should reflect upon your own, and that would make you bear the more with us, and not be severe censurers of the failings of your magistrates, when you have continual experience of the like infirmities in yourselves and others. We account him a good servant, who breaks not his covenant. The covenant between you and us is the oath you have taken of us, which is to this purpose, that we shall govern you and judge your causes by the rules of God's laws and our own, according to our best skill. When you agree with a workman to build you a ship or house, etc., he undertakes as well for his skill as for his faithfulness, for it is his profession, and you pay him for both. But when you call one to be a magistrate, he doth not profess nor undertake to have sufficient skill for that office, nor can you furnish him with gifts, etc., therefore you must run the hazard of his skill and ability. But if he fail in faithfulness, which by his oath he is bound unto, that he must answer for. If it fall out that the case be clear to common apprehension, and the rule clear also, if he transgress here, the error is not in the skill, but in the evil of the will: it must be required of him. But if the case be doubtful, or the rule doubtful, to men of such understanding and parts as your magistrates are, if your magistrates should err here, yourselves must bear it.
For the other point concerning liberty, I observe a great mistake in the country about that. There is a twofold liberty, natural (I mean as our nature is now corrupt) and civil or federal. The first is common to man with beasts and other creatures. By this, man, as he stands in relation to man simply, hath liberty to do what he lists; it is a liberty to evil as well as to good. This liberty is incompatible and inconsistent with authority, and cannot endure the least restraint of the most just authority. The exercise and maintaining of this liberty makes men grow more evil, and in time to be worse than brute beasts: omnes sumus licentia deteriores. This is that great enemy of truth and peace, that wild beast, which all the ordinances of God are bent against, to restrain and subdue it. The other kind of liberty I call civil or federal, it may also be termed moral, in reference to the covenant between God and man, in the moral law, and the politic covenants and constitutions, amongst men themselves. This liberty is the proper end and object of authority, and cannot subsist without it; and it is a liberty to that only which is good, just, and honest. This liberty you are to stand for, with the hazard (not only of your goods, but) of your lives, if need be. Whatsoever crosseth this, is not authority, but a distemper thereof. This liberty is maintained and exercised in a way of subjection to authority; it is of the same kind of liberty wherewith Christ hath made us free. The woman's own choice makes such a man her husband; yet being so chosen, he is her lord, and she is to be subject to him, yet in a way of liberty, not of bondage; and a true wife accounts her subjection her honor and freedom, and would not think her condition safe and free, but in her subjection to her husband's authority. Such is the liberty of the church under the authority of Christ, her king and husband; his yoke is so easy and sweet to her as a bride's ornaments; and if through frowardness or wantonness, etc., she shake it off, at any time, she is at no rest in her spirit, until she take it up again; and whether her lord smiles upon her, and embraceth her in his arms, or whether he frowns, or rebukes, or smites her, she apprehends the sweetness of his love in all, and is refreshed, supported, and instructed by every such dispensation of his authority over her. On the other side, ye know who they are that complain of this yoke and say, let us break their bands, etc., we will not have this man to rule over us. Even so, brethren, it will be between you and your magistrates. If you stand for your natural corrupt liberties, and will do what is good in your own eyes, you will not endure the least weight of authority, but will murmur, and oppose, and be always striving to shake off that yoke; but if you will be satisfied to enjoy such civil and lawful liberties, such as Christ allows you, then will you quietly and cheerfully submit unto that authority which is set over you, in all the administrations of it, for your good. Wherein, if we fail at any time, we hope we shall be willing (by God's assistance) to hearken to good advice from any of you, or in any other way of God; so shall your liberties be preserved, in upholding the honor and power of authority amongst you.
The deputy governour having ended his speech, the court arose, and the magistrates and deputies retired to attend their other affairs. Many things were observable in the agitation and proceedings about this case. It may be of use to leave a memorial of some of the most material, that our posterity and others may behold the workings of satan to ruin the colonies and churches of Christ in New England, and into what distempers a wise and godly people may fall in times of temptation; and when such have entertained some false and plausible principles, what deformed superstructures they will raise thereupon, and with what unreasonable obstinacy they will maintain them.
Some of the deputies had seriously conceived, that the magistrates affected an arbitrary government, and that they had (or sought to have) an unlimited power to do what they pleased without control, and that, for this end, they did strive so much to keep their negative power in the general court. This caused them to interpret all the magistrates' actions and speeches (not complying exactly with their own principles) as tending that way, by which occasions their fears and jealousies increased daily. For prevention whereof they judged it not unlawful to use even extrema remedia, as if salus populi had been now the transcendant rule to walk by, and that magistracy must be no other, in effect, than a ministerial office, and all authority, both legislative, consultative, and judicial, must be exercised by the people in their body representative. Hereupon they labored, equis et velis, to take away the negative vote. Failing of that, they pleaded that the magistrates had no power out of the general court, but what must be derived from the general court; and so they would have put upon them commissions, for what was to be done in the vacancy of the general court, and some of themselves to be joined with the magistrates, and some of the magistrates left out. This not being yielded unto, recourse was had to the elders for advice, and the case stated, with incredible wariness; but the elders casting the cause against them, (as is before declared,) they yet believed, (or at least would that others should,) that the elders' advice was as much for them in their sense as for the magistrates, (and if it were, they had no cause to shun the advice of the elders, as they have seemed to do ever since). This project not prevailing, the next is, for such a body of laws, with prescript penalties in all cases, as nothing might be left to the discretion of the magistrates, (while in the mean time there is no fear of any danger in reserving a liberty for their own discretion in every case,) many laws are agreed upon, some are not assented unto by the magistrates not finding them just. Then is it given out, that the magistrates would have no laws, etc.
The Founders' Constitution
Volume 1, Chapter 13, Document 1
The University of Chicago Press
Winthrop, John. The History of New England from 1630 to 1649. Edited by James Savage. 2 vols. Boston: Little, Brown & Co., 1853.
Easy to print version.