Commentary on Winthrop’s Vindication
John Winthrop was governor of Massachusetts Bay Colony for twelve years between 1630 and 1648 and was either deputy governor or assistant the rest of the time. At the time of his Arbitrary Government Described and the Government of Massachusetts Vindicated from that Aspersion, he was deputy governor. What we see in Winthrop’s Vindication is a standard by which all governments may be judged. The occasion for the public defense on behalf of the administration of which Winthrop was a part will become clear below but ultimately need not detain us. In a nutshell, the government had been charged with ruling and administering according to whim. Winthrop obviously took issue with that “aspersion.”
Arbitrary government is where men rule without accountability as to personnel and standard. Pretty straight forward. If people have no “choice or allowance,” meaning active selection or passive confirmation, and where men judge on a whim—with will but without reason—there is arbitrary government. God alone has no accountability beyond himself. Winthrop maintained that Massachusetts in 1644 was no home to usurpation of God’s singular prerogative.
Winthrop makes his case with appeal to a true transference or delegation of sovereignty, the right to authority, viz., royal grant. Then there was no other possible basis for Englishmen, and it is worth noting that the inherent, so to speak, authority of the colonies turned states over a hundred years later was predicated on the same basis, at least for the preexistent communities—the later state additions were a different story.
Imbedded in the royal patent or charter of Massachusetts Bay is the structure of colonial governance: the governor and a deputy governor as well as eighteen assistants (the executive and its board), and then the company (freemen or stakeholders, so to speak). The board of assistants was one house of the legislature as well as the highest judicial court. The governor was the president of the board but not an assistant simultaneously, and also functioned as a magistrate in the court. But as Herbert Osgood (The American Colonies in the Seventeenth Century) discerned, “the governor had no status apart from the board and the legislature… and therefore was bound by the action of the board…. the system of government in the corporate colony was one in which the weight of the governor among the assistants, as elsewhere, depended much on his personality.” This was only partially true. For as Winthrop had declared in 1632, the patent had to be read in light of common law precedent. Therefore, the governor possessed the powers typically associated with that position. This granted the governor some discretion not afforded to the assistants qua assistants, albeit the highest level of discretion was enjoyed by the governors and assistants as the executive branch.
During the first five years or so of the colony’s governance, the assistants played an outsized role, one later diminished. And they were empowered, as a sort of law enforcement agency, to issues warrants, summonses, and attachments. The board itself issues land grants, wage rates, and the like also. After 1634-1635, with the expansion of freemanship beyond the initial class, the assistants were relegated to more administrative and judicial considerations. And yet, the magistrates (assistants) maintained a negative vote (veto power) in the legislature.
Returning to Winthrop’s text, it is the former body, the governor and assistants, that has authority and the latter, the freemen, that has liberty, says Winthrop. Freeman has the liberty to elect and to counsel the state. This is not a merely passive liberty but of active selection and input. Hence, consent to and participation in lawmaking in the General Assembly via four General Courts annually. Not to mention annual elections of the governor, deputy, and assistants. Therefore, the government, in its foundations, was hardly arbitrary. True authority established it, and true participation was present in its operations. So too are the duties of each part of government explicitly handed down in the charter. None of this had been altered either by the incumbent administration.
But had this structure been violated in lawmaking and judging? Indeed, the complaint of members of the lower house of the legislature (i.e., the deputies) questioned whether the magistrates might possess too much judicial discretion. For the first several years of the colony’s existence, relatively few positive laws were passed. Reliance on common law precedent and principles were instead employed thereby leaving much discretionary power in the assistants. This discretion was nigh continually questioned by the lower house members. The very presence of the assistants as a sort of executive council was confronted as well. Winthrop’s response is focused most on this objection and not as much on the interrogation of the assistants’ judicial discretion.
Winthrop reminds his readers that the word of God and, per the charter, the laws of England, were the sole legal guides for the colony until a “body of fundamental laws” could be ratified. Due process as to life and property had been maintained, positive laws had been sufficiently promulgated, and God’s law—he analogizes to Israel—had not been violated. The Body of Liberties had also been rigorously adhered to.
“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 thence.” No one had yet raised a contrary example. If the complaint was simply that the executive and judiciary powers had been nimble, and had worked from general principles to particular conclusions, then no government could clear that hurdle.
“All commonwealths have had some principles, or fundamentals, from which they have framed deductions to particular cases, as occasion hath required. And though no Commonwealth ever had, or can have, a particular positive rule to dispense power or justice by in every single case, yet where the fundamentals or general rule hold forth such direction as no great damage or injury can befall, either the whole, or any particular part, by any unjust sentence or disorderly proceedings, without manifest breach of such general rule, there the rule may be required, and so the Government is regular and not arbitrary.”
Israel was not an arbitrary government, nor England, surely. If Massachusetts was simply leaning on those precedents, how could it then be arbitrary?
Winthrop then proceeds into an extended defense of penalties proscribed by the judicial body. You can read it for yourself. One important quote as to principle:
“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.”
The judge is not a mere statute parser. Broad considerations must inform his judgment, especially in sentencing, since not every situation can be accounted for ahead of time. The presence of general rules are sufficient to protect a commonwealth from arbitrary rule. That’s the lesson here. Discretion is an intricate and necessary part of that equation. Moreover, penalties, except in capital crimes, says Winthrop, are inherently a matter of discretion, of prudence. Judges must be statesmen too. For “Law was created with and in man, and so is natural to him, but penalty is positive and accidental. Law is bonum simpliciter, but poena is simpliciter malum in subiecto; therefore laws may be declared and given without any penalties annexed.”
Must people consent to laws directly for them to be just and not arbitrary? No, says Winthrop. For by selection of governors, thereby communicating lawmaking power to them, tacit consent in their lawmaking is present. Else there would be democracy, an undesirable thing. Inherent here too is executing and judging the laws.
A few objections are answered by Winthrop that may be helpful to us too. The first is the suggestion that because rulers are men, they are subject to temptation and, therefore, cannot be trusted with authority. Winthrop more or less says that this is an obvious and perennial problem for fallen men but does not negate the necessity of government which cannot exist without some in authority and others under authority. Inevitably, rulers and judges will err, but for this reason they are judged more harshly by God. Worse than errant government is no government at all. Second, Winthrop addresses a sort of theonomic point, viz., that the penalties enacted by God in the Old Testament for certain crimes provide both the floor and ceiling. Winthrop points out that in some cases these punishments varied according to the nature of the offenses and cases. More basic is the underlying principle: “These precedents were given to the judges not with direction to prescribe penalties to other laws that had none, but with commandment to give judgment in all cases, by the equity of these.” Even though God foresaw the corruption of judges in Israel, he still left “most penalties to their determination.”
“The determination of law belongs properly to God: he is the only lawgiver; but He hath given power and gifts to man to interpret His laws; and this belongs principally to the highest authority in a commonwealth, and subordinately to other magistrates and judges according to their several places.”
A final observation about the history of the text: in the Harvard Classics edition that included Winthrop’s Arbitrary Government Described, entitled “American Historical Documents,” along with obvious inclusions like the Mayflower Compact (1620) and Declaration of Rights (1765), immediately following the entry afforded to Winthrop—curiously not his more popular Model of Christian Charity (1630)—is the Instrument of Government (1653). This is, of course, not an American document, or even an American precursor (like the Voyages of Vinland (c. 1000)). But that the editors in 1910 though it influential and, indeed, indispensable to America’s history and for students tells you something not just about the taste of the editors but something true—now obscured—about our polity. The background analogues to our cultural makeup and political models are worth pondering anew.
Image Credit: Court-and-Town House, William Henry Luscomb, c. 1820.