John Winthrop: Arbitrary government described and the Government of the Massachusetts vindicated from that aspersion, 1644

Arbitrary Government is where a people have men set over them, without their choice or allowance; who have power to govern them, and judge their causes without a rule.

God only hath this prerogative; whose sovereignty is absolute, and whose will is a perfect rule, and reason itself; so as for man to usurp such authority, is tyranny, and impiety.

Where the people have liberty to admit or reject their governors, and to require the rule by which they shall be governed and judged, this is not an arbitrary government.

That the Government of the Massachusetts is such will appear (1) by the foundation of it; (2) by the positive laws thereof; (3) by the constant practice which proves a custom, than which (when it is for common good) there is no law of man more inviolable. . . .

I might show a clear rule out of the Patent itself, but seeing it is more particularly (and as it were membratim) delineated in later laws, I will begin there, (3) 25 - 1636. It was ordered, that until a body of fundamental laws (agreeable to the Word of God) were established, all causes should be heard and determined, according to the laws already in force; and where no law is, there as near the law of God as may be. To omit many particular laws enacted upon occasion, I will set down only the first authority in the Liberties: which is as here followeth: - "No man's life shall be taken away; no man's honor or good name shall be stained; no man's person shall be arrested, restrained, banished, dismembered, or any ways punished; no man shall be deprived of his wife or children; no man's goods or estate shall be taken away from him, or any way damaged, under colour of law or countenance of authority, unless it be by the virtue or equity of some express law of the country, warranting the same, established by a General Court and sufficiently published; or, in case of the defect of a law in any particular case, by the word of God, and in capital cases, or in cases concerning dismembering or banishment, according to that word, to be judged by the General Court."

By these it appears, that the officers of this body politic have a rule to walk by in all their administrations, which rule is the Word of God, and such conclusions and deductions as are, or shall be, regularly drawn from thence.

All commonwealths have had some principles, or fundamentals, from which they have framed deductions to particular cases, as occasion hath required. And though no Commonwealth ever had, or can have, a particular positive rule to dispense power or justice by in every single case, yet where the fundamentals or general rule hold forth such direction as no great damage or injury can befall, either the whole, or any particular part, by any unjust sentence or disorderly proceeding, without manifest breach of such general rule, there the rule may be required, and so the Government is regular and not arbitrary.

The fundamentals which God gave to the Commonwealth of Israel were a sufficient rule to them, to guide all their affairs; we having the same, with all the additions, explanations, and deductions, which have followed; it is not possible we should want a rule in any case, if God give wisdom to discern it. . . .

God may pronounce sentence against an offender, before the offence be committed, both by his absolute sovereignty, and also because he foreseeth all facts, with all their circumstances; and besides the least degree of the same offense deserves more than that full punishment before his Justice, but man must proceed according to his Commission; by which he cannot sentence another before he hath offended; and the offence examined, proved, laid to the rule, and weighed by all considerable circumstances, and liberty given to the party to answer for himself: nor is there anything more prejudicial to a subject's liberty, than to be sentenced before his cause be heard. . . .

Judges are Gods upon earth; therefore, in their administrations, they are to hold forth the wisdom and mercy of God, (which are His attributes) as well as His Justice, as occasion shall require either in respect of the quality of the person, or for a more general good, or evident repentance, in some cases of less public consequence, or avoiding imminent danger to the State, and such like prevalent considerations. (Exo. xxii. 8. 9). . . .