from the other colonies, and therefore ill-fitted to deal with them.1 For once however we must feel that Winthrop wrote as a partisan. Bradstreet and Hathorne evidently represented the general body of the freemen against the oligarchy at Boston, who had hitherto in a great measure monopolized office and power. The public services of each had shown that the office of Federal Commissioner was not beyond their deserts, and the only fault which could be found with their conduct while in office was that Bradstreet served the interests of Massachusetts too faithfully. Before the Court came together an informal meeting of Deputies was held in Essex. They there drew up a series of measures to be brought forward.2 The exact details of these are not told us by Winthrop, but their general effect, according to him, was to increase the influence of Essex. Among other measures to this end the Court was to be brought there, and four representatives of the county were to be specially added to the list of Magistrates. The ability and influence of the Essex representatives enabled them to carry the Deputies with them. The Assistants, however, resisted, and after a conference between the two chambers the proposal fell through. Disputes between and Depu ties. 3 The two bodies soon joined battle on another issue. The Deputies passed a measure providing for the establishment of an executive council to act Assistants while the Court was not sitting. This was to consist of seven Assistants, three Deputies, and Ward, lately the pastor of Ipswich. Inasmuch as the Assistants had hitherto discharged these duties, the practical effect of the measure was to substitute four nominees of the lower chamber for four of the Assistants. Moreover, even where the measure left the power of the Assistants intact, it altered the source from which 1 Winthrop, vol. ii. p. 172. a Ib. p. 167. 3 Ib. 1644 DISPUTES BETWEEN THE TWO CHAMBERS. 349 that power was derived. Henceforth their executive authority would rest, not, as it now did, on the charter, but on the annual vote of the whole Court. On these grounds the Assistants resisted the change, pleading too, with good reason, that the Court would by this measure be encroaching on the rights of the freemen, by making the choice of an executive a matter of nomination and not of general election. The Deputies met this last argument by citing the cases where the Court had specially appointed a council of war. To this the Assistants answered that a council of war was appointed for a limited time and with special powers, whereas the present measure would permanently alter the position of the executive. The Deputies then proposed a compromise. The Court was to appoint a council of war, in which all the Assistants were to sit. The latter still stood firm, on the ground that they had already legal authority. An unprofitable discussion followed, which ended, according to Winthrop, in the declaration made by the Deputies through their speaker, Hathorne, You will not be obeyed.'1 1 6 In the meantime it had been necessary to send out a small force to protect Pomham against the Narragansetts.2 The commanding officer was required, under his commission, to receive his instructions from the Council of the commonwealth. The question then arose, Who were this Council? The discussion led to a clear statement of the points at issue. These were to be settled later. For the present a resolution was passed, to the effect that the Governor and Assistants should act as a Council, without prejudice to their claim of authority under the charter.3 The feeling of hostility between the two bodies was 1 Winthrop, vol. ii. p. 169. 2 Mass. Records, vol. ii. p. 72. 3 Winthrop, vol. ii. p. 170. quickened by disputes about the external policy of the colony. The Governor of Plymouth petitioned for some powder, of which his colony was in great need. The Assistants voted him two barrels, but the vote was quashed by the Deputies. Their illiberality indeed went so far as to refuse to let their confederates have any even on payment. A like application from Rhode Island was also refused, though, as Winthrop points out, the colony thereby ran the risk of letting the Narragansett country fall into the hands of the Dutch.2 On another point the liberality of the Assistants contrasted with the narrow-minded jealousy of the local representatives. The former proposed that they should be authorized in case of an appeal for help from any of the confederate colonies at once to raise the force required under the Articles of Confederation. The Deputies, however, insisted that no help should be sent till a General Court had been called together. No confederation could possibly work effectively if the members held with such jealous tenacity to their individual freedom of action. On a question of internal policy too the Assistants were seemingly more liberal than their opponents. Winthrop expressly tells us that in this dispute the Assistants commanded the sympathy of the disfranchised inhabitants who were not church-members. At the same time, so far from having any intention of remedying the grievance, the Assistants were kept in check by the fear that, if political strife arose, this question might become a cause of conflict.4 Later in the year the Court again met. It was agreed that there should be a conference between the two branches of the legislature, in which the Elders should act as arbitrators. The Deputies appear to have 1 Winthrop, vol. ii. p. 172. 3 lb. 2 Ib. p. 173. 1644 Conference of the two CONFERENCE OF THE TWO CHAMBERS. 351 begun by an act of discourtesy to the arbitrators in sending a committee of four to meet them instead of appearing all in person. The main question was whether the Assistants under the patent, chambers. and without any further authority, constituted the standing Council. On this point the judgment of the Elders was in favour of their claims. Besides this, certain minor points of dispute were laid before the Elders and decided by them. They ruled that the freemen might appoint commissioners for special purposes, and that the same power might be exercised by the Court within somewhat narrower limits. At the same time they ruled that the authority granted to such commissioners must not absorb nor override that of the regular magistrates. They also gave a decided opinion in favour of allowing the penalties for offences to be varied at the discretion of the magistrate. Finally they expounded the general division of powers under the constitution. All legislative power and the supreme. judicial power were vested in the General Court, consisting of the Governor, the Assistants, and the Deputies. Subject to that limitation the Governor and Assistants had judicial power as magistrates. That power was not conferred by the vote of the freemen but by the patent. At the same time the freemen were to decide by their vote in whom that power was to be vested. The propositions laid down by the Elders were formally voted upon and accepted. A few of the popular party demurred, notably Saltonstall and Bellingham, who though themselves among the Assistants had throughout sided with the Deputies.2 This dissatis 1 The proceedings of this conference are fully told by Winthrop (vol. ii. p. 204-9). The answers of the Elders are given in full in the Records (vol. ii. pp. 90-6). 2 Winthrop, vol. ii. p. 209. faction however was not general, and for the present the dispute was set at rest. Winthrop's Pamphlet ment. One incident of this struggle deserves special notice. Winthrop put forward a second pamphlet, dealing with the immediate question, but at the same time on Govern- going beyond it, and setting forth his views on general questions of policy. His main object is to show that the power of the Assistants could not properly be called arbitrary. It was easy to show that a government, every member of which was chosen by the whole community, could not be called arbitrary. In such a case the only questions that can arise are not questions of principle but of detail. The people must decide in what manner and with what restrictions they should delegate their power to their chosen representatives. Winthrop's pamphlet is little more than an analysis of the constitution, showing in detail how each successive process in the work of administration is provided for by the charter, and is consistent with the rights of the people to self-government. He then deals with the question of so-called arbitrary punishments. He argues with copious illustration that greater equality of punishment is secured when the amount of penalty varies at the discretion of the judge. For, as he points out, that which is nominally the same offence becomes different as it is committed by a different person or under dif ferent circumstances.2 There is one point in this letter which has an interest beyond that of the immediate controversy. In describing the constitution of the colony Winthrop emphatically states that the original members of the Company were specially careful that no condition should be inserted in the original patent, limiting the government of the colony to any corpora 1 This also is given in an Appendix to the Life (vol. ii. p. 440). 2 One is reminded of the doctrine, set forth both by Plato and Aristotle, that true equality was not in equal distribution, but in distribution proportionate to merit (Laws, 757; Politics, vol. i.). |