(Winthrop's Denial of the Right of Petition; Abolition of the Life Council; Delay in the Written Code)
Winthrop's History of New England.
May 22, 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; though some jealousies arose, which were increased by two occasions. The first was, there being want of assistants, the governour and other magistrates thought fit (in the warrant for the court) to propound three, amongst which Mr. Downing, the governour's brother-in-law, was one, which they conceived to be done to strengthen his party, and therefore, though he were known to be a very able man, etc., and one who had done many good offices for the country for these ten years, yet the people would not choose him. 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 ease 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.
There fell out at this court another occasion of increasing the people's jealousy of their magistrates, viz.: One of the elders, being present with those of his church, when they were to prepare their votes for the election, declared his judgment, that a governour ought to be for his life, alleging for his authority the practice of all the best commonwealths in Europe, and especially that of Israel by God's own ordinance. But this was opposed by some other of the elders with much zeal, and so notice was taken of it by the people, not as a matter of dispute, but as if there had been some plot to put it in practice.
June 9, 1639 ... The people had long desired a body of laws, and thought their condition very unsafe, while so much power rested in the discretion of magistrates. Divers attempts had been made at former courts, and the matter referred to some of the magistrates and some of the elders; but still it came to no effect; for, being committed to the care of many, whatsoever was done by some, was still disliked or neglected by others. ... Two great reasons there were, which caused most of the magistrates and some of the elders not to be very forward in this matter. One was, want of sufficient experience of the nature and disposition of the people, considered with the condition of the country and other circumstances, which made them conceive, that such laws would be fittest for us, which should arise pro re nata upon occasions, etc., and so the laws of England and other states grew (and therefore the fundamental laws of England are called customs, consuetudines). 2. For that it would professedly transgress the limits of our charter, which provide, we shall make no laws repugnant to the laws of England, and that we were assured we must do. But to raise up laws by practice and custom had been no transgression; as in our church discipline, and in matters of marriage, to make a law, that marriages should not be solemnized by ministers, is repugnant to the laws of England: but to bring it to a custom by practice for the magistrates to perform it, is no law made repugnant, etc. At length (to satisfy the people) it proceeded ...[63]
November, 1639. Some of the freemen, without the consent of the magistrates or governour, had chosen Mr. Nathaniel Ward to preach at this court, pretending that it was a part of their liberty. The governour (whose right indeed it is, for till the court be assembled the freemen are but private persons) would not strive about it, for though it did not belong to them, yet if they would have it, there was reason to yield it to them. ... In his sermon he delivered many useful things, but in a moral and political discourse, grounding his propositions much upon the old Roman and Grecian governments, which sure is an error, for if religion and the word of God makes men wiser than their neighbors, and these times have the advantage of all that have gone before us in experience and observation, it is probable that by all these helps, we may better frame rules of government for ourselves than to receive others upon the bare authority of the wisdom, justice, etc. of those heathen commonwealths. Among other things, he advised the people to keep all their magistrates in an equal rank, and not give more honor or power to one than to another, which is easier to advise than to prove, seeing it is against the practice of Israel (where some were rulers of thousands, and some but of tens) and of all nations known or recorded. Another advice he gave, that magistrates should not give private advice, and take knowledge of any man's cause before it came to public hearing. This was debated after in the general court, where some of the deputies moved to have it ordered. [Successfully resisted by the magistrates.]
[Wood's sermon shows that he regarded himself as put forward to champion democratic doctrine: cf. Cotton's sermons for the magistrates, noted in former entries. An entry of Winthrop's, dated May 10, 1643, shows a continuance of this democratic purpose.
"Our court of elections was held, when Mr. Ezekiel Rogers, pastor of the church in Rowley, preached. He was called to it by a company of freemen, whereof the most were deputies chosen for the court. ... Mr. Rogers, hearing that exception was taken to this call, as unwarrantable, wrote to the governour for advice, etc., who returned him answer: That he did account his calling not to be sufficient, yet the magistrates were not minded to strive with the deputies about it, but seeing it was noised in the country, and the people would expect him, and that he had advised with the magistrates about it, he wished him to go on. In his sermon he described how the man ought to be qualified whom they should choose for their governour, yet dissuaded them earnestly from choosing the same man twice together, and expressed his dislike of that with such vehemency as gave offence. But when it came to trial, the former governour, Mr. Winthrop, was chosen again.">[