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CHAPTER ONE

"Arbitrary" or "Democratical"?

The Making of Colony Governments

Two months after arriving in Massachusetts in June 1630, the officers of the Massachusetts Bay Company held a "court" in their new capacity as administrators of a colony. That day, the business at hand was deciding how to pay the ministers the Company had recruited and what to do about the soaring prices of supplies and servants' labor. By year's end, this little group was enacting rules to ensure the validity of commercial contracts and the distribution of property left by those who died. It was crucial, too, that the group arrange for grants of land so farming could begin, negotiate with the local Indians, and discipline abuses of speech, sex, and alcohol. All these were preliminary acts of statecraft, prelude to decision-making of far greater consequence about the structure and practice of civil government.1

One aspect of this process, the implementing of "godly rule," is taken up in Chapter Three. Here the focus is on the creation of five different colony-wide governments; the making of town governments follows in Chapter Two. Telling this story for Massachusetts, where the process is most fully documented, carries us from the early 1630s, when arguments first broke out about civil governance, to the mid-1640s, when these disputes reached something of a climax. Elsewhere, people were deciding much more promptly on what to do-the Plymouth colonists between 1636 and 1639, the founders of Connecticut in 1638 and 1639, the founders of New Haven between 1638 and 1639, and the towns in what became Rhode Island between 1639 and 1647, the year in which these towns came together in a colony-wide federation with a charter from Parliament.

Everywhere, the process turned on how to answer questions about statecraft so difficult to resolve in England that civil war broke out in 1642. For many Englishmen-and certainly for the colonists, had they lingered in their homeland-the great difficulty at the beginning of the 1640s was the insistence of Charles I on his authority as monarch and the corollary he added to this argument, that "Parliaments are altogether in my power" (as he told the Parliament of 1626) "for their calling, sitting and dissolution," an assertion he amplified by likening that body to a "council" and "therefore" limited in what it could undertake. To the dismay of many, Charles was extending his protection to clergymen who defended the divine right of kings to rule and using that argument to validate imposing taxes without the consent of Parliament.2 No one of Puritan sympathies in late-1620s England had much love for Charles I, and although the people who sailed for Massachusetts in 1630 could not have foreseen that he would reign without the advice of a Parliament for eleven years (1629-40), they sympathized with the provisions of the Petition of Right (1628), one of them the principle, already noted, that "no tax, tallage, aid or other like charge" could be levied by the Crown unless "by common consent in parliament." In his response, the king stigmatized such statements as "innovations" because they broke "through all respects and ligaments of government, and . . . erect[ed] an universal over- swaying power" in Parliament, "which belongs only to us and not to them."3 Like most members of the Parliament that Charles eventually convened in December 1640, the colonists wanted structures and rules to protect them from a leader who asserted that, in his capacity as king, he had an "absoluta potestas" in matters of justice and was accountable only to God.4

Well before the Long Parliament began its quest for constitutional means of curtailing the king's authority, the colonists were devising forms of government that anticipated and, in significant ways, surpassed what their countrymen would accomplish. But, like their counterparts in the Long Parliament, the colonists struggled with a series of questions that successive regimes in revolutionary England could not resolve: where did sovereignty lie, and what was the proper balance between authority (government) and liberty? The resonance of these questions owed something to debates within continental humanism and the historical examples of republican Venice, princely Florence, and the wars of religion in sixteenth-century France. Yet their more immediate source was the political culture of early-modern England.

I

State-making in Massachusetts Bay was repeatedly contentious, for what men such as John Winthrop wanted by way of government displeased many others. Protest erupted in 1632, reached a temporary peak in 1634, when Winthrop was voted out of office as governor, and returned in full force in the late 1630s and early 1640s. Sometimes a specific policy or ruling led people to mobilize for change, as when Winthrop's resistance to judicial constraint provoked a near paranoia about his intentions "to have the government arbitrary," the same anxiety aroused by the policies of Charles II.5 In continuity with English politics, the underlying issue concerned the structure of government or, more abstractly, the challenge of combining liberty and authority without allowing either to veer off into excess: liberty as anarchy, authority as "arbitrary" or tyrannical. For many of the Massachusetts colonists, the most important business of state-making was to prevent arbitrary rule. For Winthrop and those who shared his thinking, the most important goal was to preserve the authority of the men who held office as governor and magistrates (technically, in Massachusetts, the "Assistants"). Winthrop campaigned persistently for an understanding of "office" that freed it from any direct dependence on consent. Wary of majority rule in a General Court where the deputies outnumbered the magistrates, he insisted on the privilege of a "negative voice" (veto) for the latter. His great bugaboo was "democratie," which he equated with an absence of authority. He would have agreed with his sometime ally John Cotton's remark: "Democracy, I do not conceyve that ever God did ordeyne as a fitt government eyther for church or commonwealth. If the people be governors, who shall be governed?"6 But for others in New England, this word was much more positive.

The particular questions of statecraft that roiled the colonists emerged in this context. The earliest concerned the levying of taxes, a dispute coinciding with complaints that Winthrop was amassing too much power as the colony's governor. By 1634, the colonists were disputing whether the legislative aspects of governance belonged solely to the governor and magistrates or were shared with the deputies who began to represent each town in the General Court. That year also saw the earliest protest against the negative voice the magistrates were claiming and, simultaneously, a dispute over whether the "freemen" elected all of the colony's officers or only some of them. A few years later, a coalition of deputies and magistrates was challenging Winthrop's insistence on a "Standing Council" empowered to act when the General Court was not in session. Meanwhile, another group that included ministers, magistrates, and laypeople was calling for a written code of laws, a veritable "Magna Carta," as a counterpoint to judicial discretion, which Winthrop favored. For some, the deeper challenge was to articulate the "liberties" shared by everyone in the commonwealth and to code those liberties as "Fundamentall," that is, forever binding on governors and governed. Early and late, some were also insisting on rotation in office.

The starting point for these disputes was the charter of the Massachusetts Bay Company, which laid out a structure of governance based on a "General Court" of freemen (stockholders, who in 1629 numbered about 125), a smaller group of eighteen "Assistants" to be elected out of the freemen, and a governor and deputy governor. As was typical of such charters, it specified four meetings a year of the General Court, one of them for the purpose of electing officers and the others for doing Company business. In between these sessions, a "Council" of assistants and other officers was in charge. Once the decision was made, in late 1629, to transfer the government of the Company to Massachusetts and the great migration of 1630 had taken place, the effective rulers of the new colony were Winthrop, who became governor in October 1629; Thomas Dudley, named deputy governor shortly before the fleet sailed; and the seven stockholders (now regarded as assistants) who came with them. In October 1630, this small group broke with the charter by admitting 116 men, none of them stockholders, to the status of freemen. No one informed these new freemen of the privileges that were theirs according to the charter, and none of them had access to the actual document.

Some sixteen months later, the "people" of Watertown protested a tax the council had levied on each of the towns. At the heart of their complaint lay the principle of consent on which every Parliament of the 1620s had insisted, and the rhetoric of their protest-"it was not safe to paye monyes after that sorte for feare of bringinge themselves and posteryty into bondage"-echoed what had been said by Parliamentarians protesting the extraordinary levies Charles I was exacting. Winthrop and the magistrates responded forcefully, insisting on an apology from the leaders of the protest and requiring them to read a "retraction and submission" to the townspeople. Winthrop may have specified the contents of that retraction, that he and the council, but not the freemen, had the "power to make lawes or rayse taxation," a point he justified by likening the small group of magistrates and governor to Parliament, an analogy that, from his point of view, justified the practice of confining the role of the freemen (or people) to electing the magistrates. Possibly as a fillip, he added that anyone with a grievance could voice it at any session of the General Court.7

Three months later, at the May session of the court, Winthrop had to concede some of the high ground he was claiming. With the power to tax again in dispute, the council agreed that each town could send two men "to be at the nexte Court to advise with the Governor and Assistantes about the raysinge of a public stocke." At this same May meeting of the court, the council also granted the freemen the privilege of electing the governor directly, instead of having him chosen by the magistrates. By August, the uneasiness about the concentration of power in the hands of the few had reached someone as high-placed as Dudley, the deputy governor, who "demanded" that Winthrop specify "the gronde and limittes of his Authoritye whither by the Patent or otherwise." An impassioned back-and-forth between the two men about the scope of the governor's authority-whether the person in that office "had no more Authoritye then everye Assistante (excepte power to call Courtes and precedencye for honor and order)," as Dudley alleged-reached its climax in the accusation that "the Governor intended to make himselfe popular, that he might gaine absolute power, and bringe all the Assistantes under his subiection."8

This "iealousye" (as Winthrop termed it) extended well beyond the person of Thomas Dudley. In the weeks leading up to the General Court session of May 1634, when a fresh election would determine who held higher office in the colony, the freemen arranged for a grand meeting of delegates from each town to "consider of suche matters as they were to take order in" once the session began. Insisting that Winthrop show them the charter, the group learned from reading the document that the power of making laws belonged to the entire group, freemen as well as magistrates and governor. Winthrop offered to compromise. Alleging it was impractical to call all the freemen together four times a year, he agreed to let delegates from each town "review all Lawes . . . but not to make any newe Lawes" with the exception of taxes, for he accepted the point that "no Assessment should be layd upon the Countrye, without the Consent of suche a Comittee." He acknowledged another constraint on executive authority, that no land be "disposed off" without a similar process of approval.9 But the freemen wanted more. At the May session, Winthrop was temporarily turned out of the governorship and replaced by Dudley. In a toneless description of what followed, Winthrop noted that the new court immediately empowered the delegates or "deputyes" from each town by allowing them to participate in the "makinge" of "Lawes" and "disposinge" of "landes &c." Overnight, as it were, the General Court became a place where deputies outnumbered magistrates, with both having the same authority to make laws.10

Winthrop and the men who agreed with him were quick to insist on other forms of authority. Returning to the charter, they interpreted it as saying that no measure could pass the court unless it gained the approval of the majority of the council. A fresh crisis

in the fall of 1634 brought home the possibility of the magistrates being outvoted when, with deputies and magistrates meeting together, the court found itself at odds on whether to approve the request of the people living in Newtown (renamed Cambridge in 1638) to remove to Connecticut. Most of the deputies and a few

of the magistrates agreed to let them leave, whereupon the other magistrates demanded the privilege of a negative voice or veto over any such measure.11 For the moment, conflict was averted when the Newtowners withdrew their request. But the magistrates' insistence on a veto dramatized the difference between two versions of authority and governance. Some, and especially Winthrop, continued to argue that their authority was greater than (or different from) the authority of the deputies and freemen; the deputies could consent, as could the freemen, but only the magistrates could legislate and act as judges or justices of the peace. Most of the deputies countered that everyone in office shared the same authority to legislate.

Winthrop's critics had a further point to make. Late that fall or during the winter, Israel Stoughton of Dorchester disputed any negative voice on the basis of a long-existing distinction-frequently employed in the context of discussing the relationship of the supreme sovereignty of Christ to the powers of the clergy who served him- between "magisterial" and "ministerial" modes of authority. In a paper he may have circulated within the General Court, Stoughton declared that, according to the charter, the governor and assistants had only the weaker of these modes, a "ministerial" authority allowed them by "the greater vote of the general courts, and not Magisterial according to their own discretion." "Denying the magistracy among us" was how Winthrop construed this argument. In one respect he was right, for the insistence on ministerial authority implied that the basis of civil power was located in the people. Stoughton also recommended that the deputies have the same negative voice as the magistrates, though his preference was certainly for majority rule.12 Had his suggestions been adopted, much of what differentiated the magistrates from the deputies would have vanished.

A year later, and even more emphatically in 1636, most of the magistrates found another way of defending an authority they continued to regard as different in kind. Initially they declared themselves a Standing Council empowered to act when the General Court was not in session, and in 1636 claimed a grander role for three of themselves- Winthrop, Dudley, and the young aristocrat Henry Vane, Jr.-as a "Council for Life." The deputies would have none of this, and the Council for Life died aborning, although not the Standing Council. Meanwhile, the magistrates were facing charges that, in their capacity as judges in civil and criminal cases, their authority to impose penalties for wrongdoing was dangerously broad. Out of these complaints about judicial discretion came a movement to establish a written code of laws, an impulse that resulted in a "Body of Liberties" the General Court adopted in 1641.13