June 12, 1643. ... The sow business not being yet digested in the country [even Bellingham, ex-governor, urging a new trial without a negative voice for the magistrates,—Winthrop gives over three pages here to a review of the controversy. Then follows:]
The sow business had started another question about the magistrates' negative vote in the general court. The deputies generally were very earnest to have it taken away; whereupon one of the magistrates [Winthrop?] wrote a small treatise, wherein he laid down the original of it from the patent, and the establishing of it by order of the general court in 1634, showing thereby how it was fundamental to our government, which, if it were taken away, would be a mere democracy. He showed also the necessity and usefulness of it by many arguments from scripture, reason, and common practice, etc. Yet this would not satisfy, but the deputies and common people would have it taken away; and yet it was apparent (as some of the deputies themselves confessed) the more did not understand it. An answer also was written (by one of the magistrates as was conceived) to the said treatise, undertaking to avoid all the arguments both from the patent and from the order, etc. This the deputies made great use of in this court, supposing they had now enough to carry the cause clearly with them, so as they pressed earnestly to have it presently determined. But the magistrates told them the matter was of great concernment, even to the very frame of our government; it had been established upon serious consultation and consent of all the elders; it had been continued without any inconvenience or apparent mischief these fourteen years; therefore it would not be safe nor of good report to alter on such a sudden, and without the advice of the elders: offering withal, that if upon such advice and consideration it should appear to be inconvenient, or not warranted by the patent and the said order, etc., they should be ready to join with them in taking it away. Upon these propositions they were stilled, and so an order was drawn up to this effect, that it was desired that every member of the court would take advice, etc., and that it should be no offence for any, either publicly or privately, to declare their opinion in the case, so it were modestly, etc., and that the elders should be desired to give their advice before the next meeting of this court. It was the magistrates' only care to gain time, that so the people's heat might be abated, for then they knew they would hear reason, and that the advice of the elders might be interposed;...
... One of the elders [Winthrop himself] also wrote a small treatise wherein he handled the question, laying down the several forms of government, both simple and mixt, and the true form of our government, and the unavoidable change into a democracy if the negative voice were taken away....
March, 1644. ... At the same court in the first month, upon the motion of the deputies, it was ordered that the court should be divided in their consultations, the magistrates by themselves and the deputies by themselves. What the one agreed upon, they should send to the other; and if both agreed, then to pass, etc. This order determined the great contention about the negative voice.
[The Records of the Governor and Company of Massachusetts Bay (II, 58-59) give this act which established the first two-chambered legislature in America (An Act of the Generall Court at Boston, March 7/17, 1644). The preamble contains an interesting reference to English precedent:—
"For as much as after long experience wee find divers inconveniences in the manner of our proceeding in Courts, by Magistrates and deputies siting together, and accounting it wisdome to follow the laudable practice of other states who have layd groundworks for government and order in the issuing of busines of greatest and highest consequence, ..."
See also an interesting prophecy of the change to two Houses in Cotton's letter, No. 75 a, above.]
81. A Town Code of School Law
Dorchester Town Records, 54-57. Cf. American History and Government, § 123.