A Replye to the Answ: made to the Discourse about the Neg: vote
Vpon Consideration of the substance of the Answ: I finde that the maine difference will fall into these 4 questions
1: whither a Neg: vote be reserved to the magistrates by the Lettres Patents.
2: whither it be a fundamentall part of our Goverment.
3: whither it be Lawfull and expedient for vs.
4: what is the proper place and power of the Deputyes.
Then I shall cleare some of the Answearers mistakes.
And in this Replye I shall still retaine the title of Magistrates, which the Answ: declines, and that professedly, which I knowe no reason off, seinge the Patent allowes it, and himselfe invests the Deputyes with it. (18)
The 1: Qu: wilbe best cleared by the Patent it selfe, wherein I will sett downe the verye words themselues (so far as concernes the state of the Question) and not leave out what may make against me, as the Answ: often doth.
The Patent runnes thus.
Any 7 or more persons of the Assistants, togither with the Governor or Deputy Gouernor so assembled etc: shalbe a full and sufficient Court etc: And the said Governor or Deputy and 7 or more Assistants may hould 4 generall Courts etc: And the said Governor or Deputy Assistants and freemen, or the greater number of them etc: wherof the Governor or Deputye and 6 of the Assistant s to be allways 7 may admitt freemen and make Lawes etc:
And it shall and may be lawfull to and for the Governor and suche of 381the Assistant s and freemen etc: as shalbe so Assembled etc: or the greater parte of them, whereof the Governor or Deputye Governor and 6 of the Assistant s to be allwayes 7 to make etc: all maner of whollsome Orders etc: not contrary to the Lawes of Engld: as well for setlinge the formes, and Ceremonies of Goverment and magistracie, fitt and necessary etc: willinge and commandinge etc: that all suche Orders Lawes etc: as shalbe so made by the Governor or Deputye etc: and suche of the Assistant s and freemen as aforsaid etc. shalbe observed etc:
From these seuerall branches of the Patent it appears, that the consent of such 7 magistrates is required to euery Lawe etc: and not their presence onely to make a Court, as the Answ: pretends: and that for these Reasons
1: Because in the 1 Branch 8 such magistrates are required to be present for the Being of a Court, and not 7:
2: Because in this and the other Branche, where it declarethe their Actinge power and not their capacitye, as in the 1 Branche, it requires the Consent of 7 onely.
3: This proviso beinge expressed in bothe those Branches, where all the Acting power is given to the Court it must needs be intended to be for some vse: but if it be not to give a Neg: vo: to those magistrates it is vaine and vselesse, nay contradictory to the former, which requires the presence of 8 suche magistrates to make suche a Court.
4: It sayth that the Court being so Assembled, they etc: whereof the Governor or Deputy and 6 Assistant s to be allwayes 7 may make Lawes etc: so that it dothe not speake heer of constitutinge a Court (for that is taken as in beinge now) but of what power they shall have in this Court.
5: The like proviso will admitt no other interpretation in any like Case: As if this Court should decree that the Governors of the Colledge or the greater parte of them (whereof the President to be allwayes one) may make orders etc. heer the Presidents consent is required as well as his presence. So if an Order were, that the military Companye etc. whereof the Captain or Leiuttenant and 2 other of the Officers to be allwayes 3, might receive in any to their Company, this gives those Officers a Neg: vo: without all Question.
6: This forme of proviso and no other is vsed in all Commissions or Patents where a Neg: vo: is granted, as in the Commissions of Oyer and Terminer, where though there be vsually aboue 20 ioyned with the Judges of Assise, (who are onely of the Quorum) yet they all can doe nothinge in the Court without the Judges consent So it is in many like Cases, if it were needfull to recite them: so it is in the Commissions of the Peace where vpon 38220 yeares experience, I never knew any Cause Carried by vote against such as were of the Quorum if the Answ: hath knowne any I wish he would produce it. It is true, that the Judges in every Court are all of equall power by the first Assignauimus in their Commission, yet where the Kinge or the Lawe shall in some Cases enlarge the power of some, and restraine others, by the same Commission, their power must be exercised accordingly. whence I must Conclude, that either these words in our Patent doe give the magistrates a Neg: vo: or els there was never any Neg: vo: granted by any Patent or Comission by any kinge of England since Edw: the 3ds tyme: let the Answ: shewe some other forme of words vsed to that purpose, or he must yeild the Cause.
As for that which he alledgeth out of the statute of 33 H: 8 it is nothinge to the purpose: beinge made for Colledges Deaneryes etc: and extends onely to such Affaires, wherein they Acte meerly as Corporations, as leasinge their lands etc: but it extends not to the Acts of Courts in Corporations: for then it had taken awaye the Neg: vo: from the Houses of Parliament, for these are allso a Corporation (as mr. Prine shewes in his late booke in defence of the Parliament.) And besides, the Statutes of England doe not binde in any other parts out of that kingdome, So as the Kings Lettres Patents are not included in that Statute.
The 2 Question is, whither this forme of Gouerment be fundamentall in our Common wealth.
That it is such thus I proue.
1: Such forme of Goverment as is rightly built vpon the first foundation, is fundamentall. But this is so: therefore it is fundamentall.
The proposition is vndenyable.
The Assumption I proue by the words of the Patent and the Order of our Court made Anno 1634.
2: That which makes a specificall difference betweene one forme of Goverment and another, is essentiall and fundamentall But the Neg: vo: in the magistrates doth so in our Goverment therefore it is essentiall and fundamentall.
The Assumption is proved by this, that if the Neg: vo: were taken away our Government would be a meere Democratie, where as now it is mixt. This I proue thus:
Where the Cheif Ordinary power and administration thereof is in the people, there is a Democracie: This I prove thus, If it be in the Deputyes it is in the people, but it wilbe in the Deputyes: ergo etc., for they are but the representative body of the people, and the matter lyes not in the number 383of people Assembled, but in their power: Againe the people are not bounde to sende their Deputyes, but they may come themselves, if they will. And thoughe the magistrates be ioyned with them in the Court, as they were in Athens and other popular states in Greece etc: yet they serve but as Councellors, seinge they shall have but their single votes, as every one of the people hath. Lastly the Answ: himselfe confesseth, that the Deputyes are the Democraticall parte of our Gouerment. (19)
Now if we should change from a mixt Aristocratie to a meere Democratie: first we should haue no warrant in scripture for it: there was no such Goverment in Israell.
2: we should heerby voluntaryly abase our selues, and deprive our selues of that dignity, which the providence of God hath putt vpon vs: which is a manifest breach of the 5th Commandment for a Democratie is, among most Civill nations, accounted the meanest and worst of all formes of Goverment: and therefore in writers, it is branded with Reproachfull Epithits as Bellua mutorum capitum, a Monster, etc: and Historyes doe recorde, that it hath been allwayes of least continuance and fullest of troubles.
And whereas the Answerer would helpe this, by investing the deputyes with office and magistracye (18) I shall shewe his mistake heerin in itts proper place, and with all how it would overthrow the power of the Deputyes, and so of the generall Court, if suche an opinion should be allowed.
To the 3 Qu: whither the Neg: vo: in the Magistrates be lawfull, and expedient for our State, I shall referre the reader to what is allreadye written in the Discourse etc: for I conceive the Arguments there are not weakened, by any thinge in the Answ: Seinge the maine strength of all that is obiected depends vpon his misinterpretation of the Patent, and of the Order of 34 which (I hope) wilbe sufficiently cleared in this Replye: and for what may need any further light, I shall afforde a word or 2 about it, in its proper place.
The 4th Qu: is about the proper place and power of the Deputyes.
For clearinge of this I shall need onely to explaine more fully, what I wrote in the Discourse: least some others might fall into the same mistakes which the Answere r hathe.
Thus therefore I lay it downe.
1: They have the same place and power which the Freemen assembled in a Generall Court ought to have: according to the Order of 34:
2: These, ioyned with the magistrates in any generall Court have (together with them) all the power legislative, and the cheife power Juditiall, of this body Politick.
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3: Neither the Magistrates alone, nor the Deputyes alone without the consent each of other, in any generall court, have any power at all.
4: The Deputyes are no magistrates nor (considered alone) have any iudiciary power. this Is proved,
1: By the Patent which gives the freemen (whom they represent) no such power, in any generall Court. It allso provides that every magistrate or officer of the Court, before he exercise his office, should take the Oath therevnto belonginge: but neither the Freemen in England, nor the Deputyes heer haue used to take any suche Oath, nor is there any Oathe appointed for them by Lawe: nor is there any power in this Goverment, to administer an Oath to them, in such maner as the Patent prescribes, for it must be administred to them, before they exercise any Authority, and then there is not any Authority sufficient to give it them: and let any indifferent man Judge whither the Patent (which looked at the wholl bodye of Freemen) did ever intende, that they should take an Oath as Officers in the Court: which if it had, it would sure have been putt in practice, in the first Courts in London, when they did all things by learned Counsell in Lawe, there would have been an Oath framed for them, as well as for the Governor Deputye and Assistants, or there would have been some such Clause incerted to the Oath of freemen, so as it is plaine, that by the Patent, where was no such office, or Juditiary power given, or intended, to them, as the Answ: pretends, but onely that they should Acte as Freemen etc.
And if the Answerer had considered, what would necessarily followe vpon this newe office and magistracye, to which he would have the Deputyes to be sett aparte from the bodye of Freemen (as well as the magistrates) he would rather have lefte them still in their proper place: For whereas the Patent allowes none to be members of the generall Court, but the Governor Deputye, Assistants and company of Freemen, if the Deputyes be invested with any other Office (as the Answ: would have them) they can be no members of that Court, nor have any vote there,
But leaving him to retracte this error, amonge many others (as I shall manifest heerafter) it is without controversy, that the Deputyes are the same company of freemen whom the Patent intends, and neither have, nor (I suppose) doe seeke any other office or power, then what belongs to the Fremen, bothe by the Patent, and by the orders of our Court.
This shall suffice in waye of Replye to the substance of the answears. I would haue stayd heer, but that I finde (amonge his many mistakes) some, which for want of clearinge, may perchance mislead the reader for the readye 385findinge of them, I haue put to them such figures as I haue noted them by in the Answer:
(1) In the Discourse I bringe an Instance of the Elders Judgment in a like case, to this effecte, that the choosing of a man to the office of a Councellor dothe not make him a magistrate from whence he inferrs (not observing the similitude) that I make the Deputyes to be no more but Councellors.
(2) When I saye, that the foundation of the peoples power is their liberty, he inferres, that I denie them to have any power: whereas my meaninge appeares clearly to be onely this, that their freedome from any other power, makes them no otherwise subiecte, then accordinge to their will, and Covenant.
(4) He demands what will become of those Lawes, to which the maior parte of the Assistants have not agreed? I Answ: If they have not expressed their Consent to every Lawe, yet seeinge there is no Recorde of their dissent it is enoughe, and this query might have been spared.
(5) He reproues vs, that in our begininges we sware, such as we Admitted to freedome, to the Authoritye of the Governor and other the magistrates etc., and not of the Governor etc. and companye etc:
I answ: 1: we did not sweare them to the persons but to their Authoritye, which was no other (nor was any other challenged) then what was established by Patent, and every man that tooke the Oath, could vnderstand it no otherwise, though the express words of the Patent were not observed, nor could so properly be at our first comminge, when we had no freemen, besids the magistrates (that I remember) nor were there any Considerable company of them, for a good tyme after: 2: those who sawe the multitude of our other vrgent Affaires and difficultyes we encountered with, and the little Court businesse we had, would easyly allowe vs pardon of that, or greater errors (which are incident to all Plantations, in their beginninges) especially seeinge our Readinesse to reforme them, and to conforme to the right Rules of our Goverment.
(6) He denyethe that by the Order of 34 the power given by Patent to 7 magistrates is so altered, as that the maior parte should stand instead of the 7: Answ: It is true, it is not in the same words, but the same clearly in effecte: for the Patent saythe the 7 must be allwayes a parte of the maior parte etc: and the Order of 34 saythe that no Lawe etc: without consent of the maior parte. such contentions about words had been better forborne. he that will nodum in stirpes querere, may finde himself worke enough, but to little purpose.
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(8) Heer is another obiection eiusdem farinae with the former: about the words Neg: vo: not beinge expressed neither in the Patent nor in the Order of 34 which I shall speake more fully vnto heerafter.
And heer he thrusts in an Argument or 2 against the Order of 34 in respecte of the common construction that is made of it, for the Neg: vo:
1: That (if it be in that Order) it was so involued amongst other things, that the intent of it was not so distinctly discovered, nor so clearly established: For Answ: I will sett downe the words of the Order; No Lawe etc: shall passe, as an Acte of the Court, without the Consent of the greater parte of the magistrates of the one parte, and the greater number of the Deputyes on the other parte: now, (to cleare the Court of that ignorance, or vnwarinesse which the Answerer would cast vpon it) I wishe the reader to Judge, how the Neg: power of the magistrates could have been more distinctly sett downe, or more clearly established.
2: That by the Neg: vo: the entire vnion would be dissolued. Answ: 1: It will as well be dissolued by the Neg: power of the Deputyes (which cannot be taken from them) and then disparitye in any society or bodye will doe the like: which is a Tenet against all experience, and the very Course of Nature: for heerin would the Lord our God, have his excellent wisdome and power appeare, that he makes (not the disparitye onely but) even the contrarietye of partes, in many bodyes, to be the meanes of the vpholding and vsefullness thereof.
3: such a vnion as he aymes at, to consist of Individualls of the same kinde, is bothe against the Patent and the Order allso: for bothe doe expressly distinguish the generall Court into severall parts: as the words declare.
(9) He denyes the Neg: v: to be a fundamentall Lawe, by this Argument that the Court in 34 wherein this Lawe was established restrained the 4 generall Courts to 2: Ans: by the same Reason it would followe, that one Lawe in any Court beinge void, all the Acts of that Court should be voyd allso.
(10) He denyes the Judgment of the Elders about the changinge any forme of Goverment to be as I have reported it: for this I referre the Reader to their Answeare.
(11) (13) He saythe that we may not imitate the Parliament of Engld:
1: because of the disproportion betweene that Court and ours.
2: because our magistrates are not of the Nobility, as the vpper house there is. Answ: He will not denye, but we may and must imitate our Lord Jesus Christ, where there is a greater disproportion: And reason will teach vs to imitate those, in whom is founde the greatest measure of wisdome and vertue: and thoughe our Court holds no proportion with that, in degrees, yet 387it dothe in parts: and so a child may strive to imitate a man in speaking, walkinge, temperance etc: But the Answerer forgatt his owne Rule, when he holds forthe our Court in imitation to that in their Stile of High and Eminent: which is too far aboue our Capacity. And if he would yeild them a Neg: v: in respecte of their Nobilitye: the reason is stronger for our magistrates: for those Nobles represent onely their owne familyes, but our magistrates doe represent the Authoritye of all the people as well as the deputyes doe that power and Libertye which they have reserved to themselves.
(12) He would seeme heer to Affirme that the house of Commons in Engld. have Ordinary Juditiary power: and sure, he would have spoken it out, if he had knowne it had been so: but he would have vs shewe that ever they made any vniust Lawe, or putt any innocent person to death: Ans: when he shall shewe vs any Lawe made by them, (in ordinary course) or any person (innocent or nocent) adiudged to death by them, I will then satisfie his demande: In the meane tyme, I am readye to shewe him some vniust Lawes made, and some innocent persons put to death by their consent.
And whereas he doth taxe me with likeninge that High Court to a grand Jury because, when I speake of their impeaching any person, I explane it by the word indite, as more commonly knowne, and of the same signification. I leave this to equall iudgment.
Further it may be observed, that when he speakes of the safetye etc: in the Iudgment of the Deputyes, rather then in the magistrates, he reckons them 40 and these onely 4 or sometymes 5 whereas he knowes the magistrates are 10 or 11 and as they are not allways present, no more are the Deputyes. Besides, his Argument from the disproportion betweene 40 and 4 is a meere fallacye: for it was never knowne, that the magistrates have stood alone in any opinion, without a considerable parte of the most able Deputyes concurringe with them: Nor have the magistrates any such power, ouer the peoples lives and libertyes by their Neg: vo: as the Answerer pretends: but onely to preserve them, if by any occation they should be in danger: I cannot liken it better to any thinge then to the brake of a windmill: which hath no power, to move the runninge worke: but it is of speciall vse, to stoppe any violent motion which in some extraordinary tempest might otherwise endanger the wholl fabricke.
(13) Heer he chargethe me with Crossinge my selfe: because in one proposition I saye, that in the magistrates and Deputyes ioyned etc: is the wholl power iuditiary etc: and after I denye the people alone to have any Iuditiary power in the generall Court where this Crossinge lyes, I confesse, I cannot see.
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(15) Whereas I saye we should incurre Scandall, by vndervaluing the gifts of God, as wisdome, learninge etc., and the Ordinance of magistracye, if the Iudgment and Authoritye of any one of the Common ranke of the people, should beare equall weight, with that of the wisest and cheifest magistrate: this he layethe to my charge, as a Scandall indeed: and heer and in (17) he makes a longe discourse, besides the scope of my Argument and intention: For I acknowledge (and have allways so doone) that there are of the Deputyes men of wisdome and learninge sufficient, and it may be, not inferiour to some of the magistrates: but yet, if in Common repute (especially in forreine parts) the magistrates be looked at, as men precedinge in gifts and experience (for otherwise the people are misguided in their Choyce) then the Scandall will remaine not withstandinge. and besides I speake not positively but hypothetically: so as if there be at any tyme one or more Deputyes so weake, as will holde no proportion with the most able of the magistrates, then my Argument will hould good, without any Scandall or offence given on my parte. And whereas I stile suche a Deputye of the Common ranke of Freemen: I hope it is no disparagement to any, to be counted in that Ranke, which is allowed equall power with the Governor and Assistants in our highest Court, althoughe a Deputy in Court be of more value then any one freeman, seinge he represents many: yet before and after the Court, he is but as another freeman, and so cannot be counted in the same ranke with the magistrates. And I should be willing to learne of the Answerer, or any other, how I might have spoken more modestly, in thus and suche like passages, and not have lost the force of my Argument: which (the Lord knowes) was the onely thinge I intended, and not to extoll the gifts etc: of the magistrates, nor to debase those of the Deputyes: for I acknowledge it my duty, to honor the gifts of God where euer I finde them, and I hope, my ordinary practice hath not been different.
(16) He mistakes Demurringe for Democratie, and yet the Sentence might have easyly guided him to the worde.
(17) He sayth, that the Order of 34 is obsolete, because it was never putt in practice. I suppose the vse of it beinge knowne (for it hathe been ofte spoken off in Court) hathe kept proceedings in that good Order, that there hath been small or no occation to make vse of it. But if this were a good Argument, many of our Capitall lawes would soone be obsolete: and by the same reason, we should slight all fortifications, which had not been Assaulted in 10 or 20 yeares. and men should laye by their swords after they had worne them suche a tyme without any occation to make vse of them. and many suche absurde conclusions would followe vpon such premises. but to helpe 389the feebleness of his Argument, he tells vs, the Neg: vo: was once called for, but denyed in Court: for which, seeinge he Cites not any Record or other proofe, It shall need no Answ: especially seing he tells vs not, what parte, or member of the Court denyed it.
(19) He denyethe the Neg: vo: to be any forme of Government because it is not (as he saythe) forma constitutiva Gubernandi, but vox constituta: that is: It is not such a forme as giues beinge to the Goverment but onely a vote constituted.
Answ: Heer againe I must give the Reader notice of a fallacie, in takinge advantage now of the stricte meaninge of those words, which in all the former dispute haue been taken accordinge to the Common acceptance. For howsoeuer we haue carried on our discourse in the Termes of a Neg: vote, (the Question beinge first started, and since debated, vnder that notion) yet it is an Affirmative vote, which is indeed controverted, and which is granted, bothe by the Patent, and by the order of 34: for bothe doe declare, that the Consent of so many magistrates shalbe necessarye to everye Lawe, order etc: Now if the Lawes etc: be essentiall to our Goverment, and these can haue no beinge, but as they are Affirmed, or assented to, by the magistrates, then is this Assent (concurrent with the rest) forma constitutiua, for thus composed, it dothe dare esse quod sunt. He is allso mistaken in denying, that vox constituta can be essentiall to a Goverment: for then he may as well denye that the freemens votes in Elections are essentiall: and suche a vox constituta is not a bare Negation, or posse impedire, quod non transit in Actum.
(15) For that probable instance I bringe out of Jer: 26: it will hould still, for aught is alledged against it: for though the Princes ioyned with Ahikam, yet he onely is named verse 24: (for it is like he was President) and their Neg: vo: (if not his alone) saved Jer: against the minde of the Preists: as for the people they onely gave their approbation to it: for it is without question, that the people had no Juditiall power nor vote in their Courts: for the Lord Commandinge them Deut: 16 to appoint them Judges in all their Tribes, and those should iudge them etc: he excludes them from all ordinary power of Judicature themselues.
Diverse other passages I omitt, as being of no weight in this controversye, and I leave them to the readers Judgment.
There are 2 or 3 Arguments more (which I haue mett with otherwhere) which may heer allso receiue Answeare.
1: Magdeburge changinge their Democratie into an Aristocracy were soone after destroyed. Answ: 1: Their destruction did not arise out of their 390new Goverment, nor for it; but meerly from an externall cause: viz: the Emperors displeasure against them, for refusinge to choose his sonne their Administrater or Prince. 2: if this had befallen them for changing that forme of Goverment which the providence of God had setled them in; it is a good warninge to vs, to take heed how we attempt to change our owne.
2: The Judges in Engld. have no hand in makinge those Lawes, by which they are to Judge.
Answ: The Judges of the Kings Benche, Common pleas and Eschequer have not, and the reason is because they onely intende it, and are to attende the vpper house vpon all occations: but it is vndenyable, that aboue 2/3 of the members of both houses are Judges of the laws they make, in one Court or other.
3: The greatest power is in the people: therefore it should be in their Deputyes.
Answ: originally and vertually it is: but when they have chosen them Judges, etc: their Juditiary power is actually in those to whom they have committed it and those are their magistrates in such order as before is declared.
There Remaines one obiection, which for better satisfaction, I shall endeavour to give a more cleare solution vnto, then is in my former Discourse.
ob: If the Court of Assistants should give an vniust sentence in any Cause, the partye iniured can have no remedye in the generall Court, if the magistrates (as they are like to doe) shall persist in their former Iudgment.
Answ: 1: If any vniust Judgment be given in the Court of Assistants, it proceeds more vsually from the error of the Jury, then the corruption of the magistrates: who will then be competent Judges of it in another Court.
2: If suche Cause be brought into the generall Court vpon newe evidence (which is vsuall and most likely) then shall the magistrates have good grounde, to change their Judgment.
3: If the magistrates be godly (as they are like to be while the frame of the Common wealth remaines suche) then if they erre in Judgment, it must be supposed to be of infirmytye, and want of light: if so, then there is no doubt, but they wilbe readye to attende suche further helpe and light, as the wisdome and counsell of the generall Court may seasonably afforde.
4: If the miscarriage of the magistrates in their Sentence, should be evident and notorious, either the shame of it would make them change their Judgment: or otherwise they should be made manifest to all the Country, to be such as they are, and then they would be soone removed, and called to Account, and so their vniust Sentence would be reversed in a due Course.
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5: Where absolute safetye cannot be provided, (which is and hath been the Case of all Common wealths, even that of Gods owne institution) there reasonable and probable meanes of safetye must suffice.
6: If an error in some particular and private Case, should want redresse, for a tyme (which yet is very vnlikely) then we may rest satisfied in this longe approved maxime It is better for the Common wealth that a mischeife be tollerated, then an Inconvenience indured, much more, foundations of Goverment overthrowne, as must needs be if this Neg: vo: be layd downe. And it is well proved and concluded by a late Juditious writer, in a book newly come over, intituled an Answ: to Dr. Ferne, that thoughe all Lawes, that are superstructiue, may be altered by the representative bodye of the Common wealth yet they have not power to alter any thinge which is fundamentall.
Jo: Winthop: Gouernor
(4) 5, 1643