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Arbitrary Government Described and the Government of
the Massachusetts Vindicated from that Aspersion
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.]
ARBITRARY Government is where a people have men set over 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.
"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:
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 body of fundamental laws (agreeable to the Word of God) were
established, all causes should be heard and determined, according to the laws already in
force; and where no law is, there as near the law of God as may be. To omit many
particular laws enacted upon occasion, I will set down only the first authority in the
Liberties: which is as here followeth:—"No man's life shall be taken away; no
man's honor or good name shall be stained; no man's person shall be arrested, restrained,
banished, dismembered, or any ways punished; no man shall be deprived of his wife or
children; no man's goods or estate shall be taken away from him, or any way damaged, under
colour of law or countenance of authority, unless it be by the virtue or equity of some
express law of the country, warranting the same, established by a General Court and
sufficiently published; or, in case of the defect of a law in any particular case, by the
word of God, and in capital cases, or in cases concerning dismembering or banishment,
according to that word, to be judged by the General Court."
By these it appears, that the officers of this body politic have a rule to walk by in all
their administrations, which rule is the Word of God, and such conclusions and deductions
as are, or shall be, regularly drawn from thence.
The fundamentals which God gave to the Commonwealth of Israel were a sufficient rule to
them, to guide all their affairs; we having the same, with all the additions,
explanations, and deductions, which have followed; it is not possible we should want a
rule in any case, if God give wisdom to discern it.
There are some few cases only (beside the capitals) wherein the penalty is prescribed; and
the Lord could have done the like in others, if He had so pleased; but having appointed
governments upon earth, to be His vicegerents, He hath given them those few as presidents
to direct them and to exercise His gifts in them (Deut. xvii; 9, 10, 11). In the most
difficult cases, the judges in supreme authority were to show the sentence of the law;
whence three things may be observed: (1) this sentence was to be declared out of the law
established, though not obvious to common understanding; (2) this was to be expected in
that ordinance; therefore (v. 19,) the King was to have a copy of the law, and to read
them all the days of his life; (3) such a sentence was not ordained to be
provided before the case fell out, but pro re nata, when occasion required, God promised
to be present in his own ordinance, to improve such gifts as he should please to confer
upon such as he should call to place of government. In the Scripture there are some forms
of prayers and of sermons set down; yet no man will infer from thence that ministers
should have sermons and prayers prescribed them for every occasion; for that would destroy
the ordinance of the ministry, i. e., a reading priest might serve in that office, without
any learning or other gifts of the Spirit. So if all penalties were prescribed, the jury
should state the case, and the book hold forth the sentence, and any schoolboy might
pronounce it; then what need were there of any special wisdom, learning, courage, zeal or
faithfulness in a judge?
This being so great a question now on foot, about prescript penalties it will be of use to
search as deep into it as we may by the light of Scripture, approved patterns, and other
rational arguments; not tying our discourse to method, but laying down things as they come
to hand.
England in the right constitution, is not an Arbitrary Government, nor is ours of the
Massachusetts; yet juries, both there and here, give damages which (in vulgar sense) are
arbitrary, in most cases: as in actions of slander, trespass, battery, breach of covenant,
etc.; all which concern the people's liberties no less than fines and other penalties; And
if twelve men, who have no calling to office, may (in expectation of God's assistance) be
trusted with men's estates in a way of distributive justice without a prescript rule,
etc., why may not those whose calling and office hath promise of assistance, have like
trust reposed in them, in vindictive justice?
God may pronounce sentence against an offender, before the offence be committed, both by
his absolute sovereignty, and also because he foreseeth all facts, with all their
circumstances; and besides the least degree of the same offence deserves more than that
full punishment before his Justice, but man must proceed according to his Commission; by
which he cannot sentence another before he hath offended; and the offence examined,
proved, laid to the rule, and weighed by all considerable circumstances, and liberty given
to the party to answer for himself: nor is there anything more prejudicial to a subject's
liberty, than to be sentenced before his cause be heard.
Justice ought to render to every man according to his deservings, eye for eye, hand for
hand, etc.; and (Luke xii. 47) the servant, who transgressed against knowledge was to be
beaten with more stripes than he who transgressed of ignorance. If we had a law, that
every lie should be punished forty shillings, and two offenders should be convict at the
same time, the one a youth of honest conversation, never known to lie before; and now,
suddenly surprised with fear of some discredit, had told a lie wherein was no danger of
harm to any other; the other an old notorious liar, and his lie contrived of purpose for a
pernicious end: it were not just to punish both these alike. As forty shillings were too
little for the one, so it were too much for the other. Besides, penalties (we know) coming
of paena, should cause pain or grief to the offenders. It must be an affliction, yet not a
destruction except in capital or other heinous crimes: but in prescript penalties,
authority shoots at adventure; if the same penalty hits a rich man, it pains him not, it
is no affliction to him; but if it lights upon a poor man, it breaks his back.
Every law must be just in every part of it, but if the penalty annexed be unjust, how can
it be held forth as a just law? To prescribe a penalty must be by some rule, otherwise it
is an usurpation of God's prerogative; but where the law-makers, or declarers, cannot find
a rule for prescribing a penalty, if it come before the judges pro re nata, there it is
determinable by a certain rule, viz., by an ordinance set up of God for that purpose,
which hath a sure promise of Divine assistance (Exo. xxi. 22; Deut. xvi. 18). "Judges
and Officers shalt thou make, etc., and they shall judge the people with just
judgment." (Deut. xxv. 1, 2, and xvii. 9, 10, 11). If a Law were made that if any man
were found drunken he should be punished by the judges according to the merit of his
offence, this is a just law, because it is warranted by a rule; but if a certain penalty
were prescribed, this would not be just, because it wants a rule, but when such a case is
brought before the judges, and the quality of the person and other circumstances
considered, they shall find a rule to judge by; as if Nabal, and Uriah, and one of the
strong drunkards of Ephraim, were all three together accused before the judges for
drunkenness, they could so proportion their several sentences, according to the several
natures and degrees of their offences, as a just and divine sentence might appear in them
all; for a divine sentence is in the lips of the King, his mouth transgresseth not in
judgment (Prov. xvi.), but no such promise was ever made to a paper sentence of human
authority or invention. He who hath promised His servants to teach them what to answer,
even in that hour when they shall be brought before judgment seats, etc., will also teach
his ministers, the judges, what sentence to pronounce, if they will also observe His word
and trust in Him. "Care not for the morrow, etc." is a rule of general extent,
to all cases where our providence may either cross with some rule or ordinance of His, or
may occasion us to rely more upon our own strengths and means, than upon His grace and
blessing. In the sentence which Solomon gave between the two harlots (1 Kings 111. 28), it
is said that all Israel heard of the judgment which the King had judged; and they feared
the King, for they saw that the wisdom of God was in him to do judgment. See here, how the
wisdom of God was glorified, and the authority of the judge strengthened by this sentence;
whereas in men's prescript sentences neither of these can be attained; but if the sentence
hit right, all is ascribed to the wisdom of our ancestors; if otherwise, it is endured as
a necessary evil, since it may not be altered.
Prescript penalties take away the use of admonition, which is also a divine sentence and
an ordinance of God, warranted by Scripture, as appears in Solomon's admonition to
Adonijah, and Nehemiah's to those that break the Sabbath (Eccl. xii. 11, 12); "The
words of the wise are as goads, and as nails fastened by the masters of assemblies—by
these (my son) be admonished." (Prov. xxix. I; Isa. xi. 4; Prov. xvii. 10). "A
reproof entereth more into a wise man, than a hundred stripes into a fool."
Judges are Gods upon earth; therefore, in their administrations, they are to hold forth
the wisdom and mercy of God, (which are His attributes) as well as His Justice, as
occasion shall require either in respect of the quality of the person, or for a more
general good, or evident repentance, in some cases of less public consequence, or avoiding
imminent danger to the State, and such like prevalent considerations. (Exo. xxii. 8, 9).
For theft and such like trespasses, double restitution was appointed by the Law; but (Lev.
vi. 2, 5) in such cases, if the party confessed his sin and brought his offering, he
should only restore the principal and add a fifth part thereto. Adultery and incest
deserved death, by the Law, in Jacob's time (as appears by Judah his sentence, in the case
of Tamar); yet Reuben was punished only with the loss of his birthright, because he was a
patriarch. David his life was not taken away for his adultery and murder (but he was
otherwise punished) in respect of public interest and advantage; he was valued at ten
thousand common men. Bathsheba was not put to death for her adultery, because the King's
desire had with her the force of a law. Abiathar was not put to death for his treason,
because of his former good service and faithfulness. Shemei was reprieved for a time, and
had his pardon in his own power, because of his profession of repentance in such a season.
Those which broke the Sabbath in Nehemiah his time, were not put to death, but first
admonished, because the state was not settled, etc. Joab was not put to death for his
murders in David's time, for avoiding imminent public danger; the sons of Zeruiah had the
advantage of David, by their interest in the men of war; and the commonwealth could not
yet spare them. But if judges be tied to a prescript punishment, and no liberty left for
dispensation or mitigation in any case, there is no place left for wisdom or mercy;
whereas Solomon sayeth (Prov. xx. 28): "Mercy and truth preserve the King, and his
throne is upholden by mercy."
Isa. x, 1: Woe to them that decree unrighteous decrees: and write grievousness, which they
have prescribed; so that where the penalty proves grievous by the unrighteousness of a
prescript decree, it will draw a woe after it, as well as unrighteous sentences; (Deut.
xxv, 15) "Thou shall have a perfect and just weight and measure." If God be so
strict in commutative justice that every act therein must be by a just and perfect rule,
what warrant have we to think that we may dispense distributive or vindictive justice to
our brethren by guess, when we prescribe a certain measure to an uncertain merit? |