Main currents in American thought An interpretation of American literature from the beginnings to 1920
trained in subordination. Transported to New England and adapted to
theocratic ends, the principle of magistracy was both augmented in
power and ennobled in conception. To the police power over things
temporal was added a police power over things spiritual. In the
Bible commonwealth the legislative function was regarded as of minor
importance. The law being already set down in the Scriptures, the chief
authority in the commonwealth naturally rested with the magistrates who
were responsible for its strict fulfillment. As stewards intrusted with
a divine stewardship, they exercised absolute legislative and judicial
powers; in their councils the ministers were summoned to participate,
but no others. It was the duty of the magistrates to debate and
determine, and the duty of the people to obey.
To a modern this is no other than sheer absolutism, but it was deeply
embedded in Calvinistic theory and practice, and was justified by the
Puritan principle of special talents. God calls to the post of duty
those best fitted to serve. As a devout follower of Calvin, Winthrop
must have often pondered upon the passages in the _Institutes_ which
set forth the nature of magistracy and the duties of the magistrate,
and in particular this: “If they remember that they are the vicegerents
of God, it behooves them to watch with all care, diligence, and
industry, that they may exhibit a kind of image of the Divine
Providence, guardianship, goodness, benevolence, and justice.”[23]
To a devout Jacobean like Winthrop, this patriarchal conception of
stewardship would appear as a noble ideal, worthy of a Christian. The
potential absolutism implied would scarcely trouble one who had grown
up in a society where absolute authority was interwoven with everyday
life. The Christian magistrate was still a magistrate, but with the
great difference that his hands must be kept clean and his conscience
clear. This nobler spirit of Calvinistic stewardship is revealed in
Winthrop’s _Modell of Christian Charity_, written on shipboard during
the voyage out. A sense of profound responsibility devolving upon the
leaders imparts dignity to the thought: they must bear and forbear,
knitting themselves together in a common purpose, and seeing that “the
care of the public” should “oversway all private interests.” And this
“care of the public,” remained in theory if not always in practice, the
guiding principle of Winthrop’s official activities.
The bearing of this doctrine of magistracy upon the early movement of
democracy in Massachusetts is not far to seek. If magistracy was a duty
laid upon those of fit talents, they would serve God ill who should
turn a willing ear to popular protests against magisterial policy. On
this point Winthrop was adamant. He would have no meddling on the part
of those who had not been called. When it was attempted to bring him
to account before the congregation for an unpopular judicial decision,
he denied the competency of the congregation in such matters, and then
as he often did in cases of doubt, he made a “little book” in which he
elaborated the thesis, “That a Church hath not Power to call any Civill
Magistrate to give Account of his Juditiall proceedings in any Court
of Civill Justice: and what the Church may doe in such Causes.”[24]
The shoemaker should stick to his last, Winthrop believed, and he
would suffer no interference by the congregation with his duties as
magistrate. On another occasion when difficulties had arisen in certain
negotiations with the Connecticut settlements, he noted in his journal:
These and the like miscarriages in point of correspondency were
conceived to arise from these two errors in their government: 1.
They chose divers _scores_ men, who had no learning nor judgment
which might fit them for those affairs, though otherwise men holy
and religious. 2. By occasion hereof, the main burden for managing
of state business fell upon one or other of their ministers, (as
the phrase and style of these letters will clearly discover),
who, though they were men of singular wisdom and godliness, yet
stepping out of their course, their actions wanted that blessing
which otherwise might have been expected.[25]
The political philosophy which underlay Winthrop’s theory and practice
of magistracy, was a Puritan modification of the commonly accepted
English theory of a “mixt aristocratie.” He had been trained in the
law but was little given to speculative thought. There is evidence
that he read somewhat in the fast accumulating political literature
of the times, but little indication that his reading modified his
theory or influenced his conduct. He was an administrator rather than
a philosopher, and from the fragmentary records that have survived
it is difficult to piece together a consistent political theory. As
a magistrate under the dominance of the English Common Law, he seems
to have accepted the constitutional theory of Coke, who sought to
interpose the customary and ancient law of the land between the growing
absolutism of the Crown, and the increasing importunity of the Commons,
with sovereignty inhering in the judiciary. As a Puritan, however, he
superimposed the law of Moses on the law of the land, and by ignoring
the King on the one hand, and denying power to the representatives of
the people on the other, he created the framework of a magisterial
theocracy.
The two chief sources to which we must turn for his political views,
in addition to his letters and journals, are: _A Replye to the Answ:
Made to the Discourse about the Neg: Vote_, and _Arbitrary Governmt
Described: & the Governmt of the Massachusetts Vindicated from
that Aspersion_, both of which have been preserved in the form of
heads of argument.[26] The principle that underlies these skeleton
arguments is the theory of a state held static by exact constitutional
arrangements. King and people represent the great supplementary
functions of constitutional government, sovereignty and liberty; both
are necessary in a well ordered society, and neither may encroach
upon the other. This Winthrop regarded as the vital principle of the
English constitution, which had been embodied in the government of
Massachusetts.
The Government of the Massachusetts consists of Magistrates &
Freemen: in the one is placed the Auth’ye, in the other the Lib’tye
of the Com: W: either hath power to Acte, both alone, & both
togither, yet by a distinct power, the one of Lib’tye, the other of
Auth’ye: the Freemen Acte alone in all occurrences out of Court: &
both Acte togither in the Gen’ll Court: yet all limited by certaine
Rules, bothe in the greater & smaller affaires: so as the Governm’t
is Regular in a mixt Aristocratie, & no wayes Arbitrary.[27]
In settled times and places this nice balance between sovereignty and
liberty is maintained by use and wont; but in periods of disturbance,
such as then existed in England, and in new experiments, such as marked
the setting up of the commonwealth of Massachusetts, there was certain
to be much pulling and straining between these antagonistic principles;
and his refusal to accept this fact, and his stubborn insistence on
transferring to New England the old English static order, brought on
Winthrop’s head many of the difficulties that greatly troubled his
administration. Both in the old world and the new, the principle of
liberty was encroaching on feudal authority. With the rise of the
middle class, many Englishmen, and particularly the colonial New
Englanders, were fast outgrowing the old paternalisms, and coming to
regard them as no other than tyranny. The freemen of the Massachusetts
towns were restive under the strict rule of the magistrate-elders, and
a growing party of democratic deputies was eager to try its hand at
government. All such democratic pretensions Winthrop held in contempt,
although he was at pains to deny the arbitrary nature of magisterial
rule.
Some of the deputies had seriously conceived, that the magistrates
affected an arbitrary government.... For prevention whereof they
judged it not unlawful to use even _extrema remedia_, as if _salus
populi_ had been now the transcendent 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.[28]
If government were regular it could not be arbitrary--this was
Winthrop’s brief reply to the deputies. In his arguments he
deliberately avoided the difficult question of sovereignty; in part,
no doubt, because of the delicate situation resulting from fear of
royal interference, but chiefly because he was unwilling to bring into
jeopardy the unlimited powers of magistracy. That he denied sovereignty
to the people is abundantly clear from his actions, as well as from
specific comment. By the law of the corporation, namely, the written
terms of the charter, authority was vested in a limited body of
freemen; and he saw no reason in expediency or otherwise to extend that
authority. Thus he argued, “it is well proved & concluded by a late
Juditious writer, in a booke newly come over, intituled an Answ: to Dr
Ferne, that thoughe all Lawes, that are sup’structive, may be altered
by the representative bodye of the Com:w: yet they have not power to
alter anythinge w’ch is fundamental.”[29] What delimitations were to be
drawn between “superstructive” and “fundamental,” he was not careful
to make clear; but it is certain that he regarded as fundamental not
only the charter terms and the British constitution but the will of
God. Doubtful as this last may seem to students of political science,
and difficult to determine, it was neither doubtful nor difficult to
Winthrop and his fellow magistrates and ministers. The Mosaic law was
specific. Back of the citizen-legislator was the subject of Jehovah,
and he was politically free only to do the will of God. There must be
divine sanction for all human law; lacking such sanction all majority
votes and legislative enactments were null and void. Sovereignty
inheres finally in God, and it is by his fundamental law that all
superstructive laws and institutions must be judged.
In theocratic philosophy, therefore, the magistrate became no other
than God’s vicegerent, with authority beyond popular limitation or
control. No English squire presumed to exercise the magisterial
powers which Winthrop and his associates quietly usurped. Among
other innovations they early claimed the right of veto on the acts
of the deputies, and in reply to the dissatisfaction voiced at such
arbitrary encroachment, Winthrop argued that the magisterial veto was
no infringement on the liberties of the people, but was a means to
“preserve them, if by any occasion they should be in danger: I cannot
liken it better to anythinge than the brake of a windmill: w’ch hathe
no power, to move the runninge worke: but it is of speciall use, to
stoppe any violent motion, w’ch in some extraordinary tempest might
endanger the wholl fabricke.”[30] The convenient weapon of divine
sanction Winthrop did not scruple to use at need. Thus when a petition
was presented for the repeal of a law which arbitrarily decreased the
number of deputies, he denied the lawfulness of the procedure:
When the people have chosen men to be their rulers, now to combine
together ... in a public petition to have an order repealed ...
savors of resisting an ordinance of God. For the people, having
deputed others, have no right to make or alter laws themselves, but
are to be subject.[31]
The old English right of petition, in short, was not a right in
theocratic Massachusetts, and any unauthorized joining together of