after mentioned shall be, etc., one body politic and Corporate, in fact and name, by the name of the Governor and Company of the Massachusetts Bay in New England. And that from henceforth forever there shall be one Governor, one Deputy-Governor, and eighteen Assistants of the same Company, to be from time to time, constituted, elected, and chosen, out of the Freemen of the said Company for the time being; in such manner and form, as hereafter in these presents is expressed, which said officers shall apply themselves to take care for the best disposing and ordering of the great business and affairs of, for, and concerning, the said lands and premises hereby mentioned to be granted, and the plantation thereof, and the government of the people there."

(2) The distribution of power follows, in these words ensuing:-"That the Government of the said Company for the time being or, in his absence by occasion of sickness or otherwise, the Deputy-Governor for the time being, shall have authority from time to time, upon all occasions, to give order, for the assembling of the said Company, and calling them together, to consult and advise of the businesses and affairs of the said Company.

"And that the said Governor, Deputy-Governor, and Assistants of the said Company for the time being shall or may once every month or oftener at their pleasures, assemble and hold and keep a Court, or Assembly of themselves, for the better ordering and directing of their affairs:

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And that any seven, or more persons of the Assistants, together with the Governor or Deputy-Governor so assembled, shall be said, taken, held, and reputed to be, and shall be, a full and sufficient Court or Assembly of the said Company, for the handling, ordering, and dispatching of all such businesses and occurrents, as shall from time to time happen touching or concerning the said Company or plantation."

Then follows a clause, whereby liberty is granted to hold four general Courts in the year, wherein (with the advice and consent of the major part of the freemen) they may admit others to the freedom of the Company, they may make all subordinate officers, and make laws and constitutions, for their welfare and good government.

Then followeth a clause for the annual election of all their officers in these words ensuing:

"That yearly once in the year forever, namely on the last Wednesday in Easter Term yearly, the Governor, DeputyGovernor, and Assistants of the said Company shall be in the General Court or Assembly, to be held for that day or time, newly chosen for the year ensuing, by such greater part of the said Company, for the time being, then and there present as is aforesaid."

Then follows another branch, whereby, in any of their General Courts, any insufficient, or delinquent Officer (of what sort soever) may be removed and another forthwith put in place.

The last clause is for the governing of the inhabitants within the plantation. For it being the manner for such as procured patents for Virginia, Bermudas, and the West Indies, to keep the chief government in the hands of the Company residing in England (and so this was intended and with much difficulty we got it abscinded) this clause is inserted in this and all other patents whereby the Company in England might establish a Government and Officers here in any form used in England, as Governor and Council, Justices of the Peace, Mayor, Bailiffs, etc.; and accordingly Mr. Endicott and others with him, were established a Governor and Council here, before the Government was transferred hither: and that clause is expressed in these words:

"It shall and may be lawful, to and for the Governor, etc., and such of the Freemen of the said Company for the time being, as shall be assembled in any of their General Courts aforesaid, or in any other Courts to be specially summoned and assembled for that purpose, or the greater part of them, whereof the Governor or Deputy-Governor, and six of the Assistants to be always seven; from time to time, to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions, and instructions, not contrary to this our Realm of England: as well for settling of the forms and ceremonies of government and magistracy, fit and necessary for the said plantation, and inhabitants there, and for naming and styling of all sorts of

officers, both superior and inferior, which they shall find needful for that Government and plantation; and the distinguishing and setting forth of the several duties, powers, and limits of every such office, etc., for disposing and ordering the election of such of the said officers as shall be annual, etc., and for setting down forms of oaths and for ministering of them, etc., and for the directing, ruling, and disposing of all matters and things, whereby our said people inhabitants there, may be so religiously, peaceably, and civilly governed, etc."

Thus it appears that this Government is not arbitrary in the foundation of it, but regulated in all the parts of it.

(2) It will be yet further found by the positive laws thereof:

And first by that of (3) 14-1634; where it is declared, that the General Court only may make freemen; make laws; choose General Officers, as Governor, Deputy, Assistants, Treasurer, etc.; remove such; set out their power and duty; raise moneys; dispose of lands in proprieties; not to be dissolved but by consent of the major part. The freemen of the several towns may send their deputies to every General Court who may do all that the body of freemen might do, except in election of magistrates and officers.

And in the sixty-seventh Liberty it is thus described, viz.— "It is the constant liberty of the freemen, to choose yearly, at the Court of Election, out of the freemen, all the general officers of this jurisdiction. If they please to discharge them at the Court of Elections, by vote, they may do it without showing cause; but if at any other General Court, we hold it due justice, that the reasons thereof be alleged and proved. By general officers, we mean our Governor, Deputy-Governor, Assistants, Treasurer, General of our wars, and our Admiral at sea; and such as are, or may be hereafter, of like general nature.”

(3) According to these fundamental rules and positive laws, the course of government hath been carried on in the practice of public administrations to this very day, and where any considerable obliquity hath been discerned, it hath been soon brought to the rule and redressed; for it is not possible in the infancy of a plantation, subject to so many

and variable occurrents to hold so exactly to rules, as when a state is once settled.

By what hath been already manifested, this Government is freed from any semblance of arbitrariness either in the form of it, or the general officers in it, which is the first branch in the description of Arbitrary Government.

The other branch, (wherein the main question lies) is concerning the rule so as if it shall appear also, that the Governor and other officers are prescribed such a rule, as may be required of them in all their administrations, then it must needs be granted, that this Government (even in the present state thereof) is, in no respect, arbitrary.

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 virtuę : 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 par

ticular 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.

There are some few cases only (beside the capitals) wherein the penalty is prescribed; and the Lord could have done the like in others, if He had so pleased; but having appointed governments upon earth, to be His vicegerents, He hath given them those few as presidents to direct them and to exercise His gifts in them (Deut xvii; 9, 10, 11). In the most difficult cases, the judges in supreme authority were to show the sentence of the law; whence three things may be observed: (1) this sentence was to be declared out of the law established, though not obvious to common understanding; (2) this was to be expected in that ordinance; therefore (v. 19,) the King was to have a copy of the law, and to read them all the days of his life; (3) such a sentence was not ordained to be provided before the case fell out, but pro re nata, when occasion required, God promised to be present in his own ordinance, to improve such gifts as he should please to confer upon such as he should call to place of government. In the Scripture there are some forms of prayers and of sermons set down; yet no man will infer from thence that ministers should have sermons and prayers prescribed them for every occasion; for that would destroy the ordinance of the ministry, i. e., a reading priest might serve in that office, without any learning or other gifts of the Spirit. So if all penalties were prescribed, the jury should state the case, and the book hold forth the sentence, and any