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cers were to be elected, and laws and ordinances for the good and welfare of the colony made; “ so as such laws and ordinances be not contrary or repugnant to the laws and statutes of this our realm of England.” Atone of those great and general assemblies held in Easter Term, the governor, deputy, and assistants, and other officers, were to be annually chosen by che
company present. The company were further authorized to transport any subjects, or strangers willing to become subjects, of the crown, to the colony, and to carry on trade to and from it, without custom or subsidy, for seven years, and were to be free of all taxation of imports or exports to and from the English dominion for the space of twenty-one years, with the exception of a five per cent. duty. The charter further provided, that all subjects of the crown, who should become inhabitants, and their children born there, or on the seas going or returning, should enjoy all liberties and immunities of free and natural subjects, as if they, and every of them, were born within the realm of England. Full legislative authority was also given, subject to the restriction of not being contrary to the laws of England, as also for the imposition of fines and inulcts “according to the course of other corporations in England.” Many other provisions were added, similar in substance to those found in the antecedent colonial charters of the crown.
The General Court, in their address to Parliament in 1646, in answer to the remonstrance of certain malcontents, used the following language: “For our government itself, it is framed according to our charter, and the fundamental and common laws of England, and carried on according to the same, (taking the words of eternal truth and righteousness along with them, as that rule by which all kingdoms and jurisdictions must render account of every act and administration in the last day,) with as bare an allowance for the disproportion between such an ancient, populous, wealthy kingdom, and so poor an infant, thin colony, as common reason can afford.” And they then proceeded to show the truth of their statement, by drawing a parallel, setting down in one coluinn the fundamental and common laws and customs of England, beginning with Magna Charta, and, in a corresponding column, their own fundamental laws and customs. Among other parallels, after stating that the supreme authority in England is in the high court of Parliament, they stated, “ The highest authority here is in the General Court, both by our charter and by our own positive laws."
For three or four years after the removal of the charter, the governor and assistants were chosen, and all the business of the government was transacted, by the freemen assembled at large in a General Court. But the members having increased, so as to make a general assembly inconvenient, an alteration took place, and, in 1634, the towns sent representatives to the General Court. They drew up a general declaration, that the General Court alone had power to make and establish laws, and to elect officers; to raise moneys and taxes, and to sell lands; and that, therefore, every town might choose persons, as representatives, not exceeding two, who should have the full power and voices of all the freemen, except in the choice of officers and magistrates, wherein every freeman was to give his own vote. The system thus proposed was immediately established by common consent, although it is nowhere provided for in the charter. And thus was formed the second house of representatives (the first being in Virginia) in any of the colonies. At first, the whole of the magistrates (or assistants) and the representatives sat together, and as one body, in enacting all laws and or
ders. But at length, in 1614, they separated into two distinct and independent bodies, each of which possessed a negative upon the acts of :he other. This course of proceeding continued until the final dissolution of the charter.
After the fall of the first colonial charter, in 1634, Massachusetts remained for some years in a very disturbed state, under the arbitrary power of the crown. At length a new charter was, in 1691, granted to the colony by William and Mary; and it henceforth became known as a province, and continued to act under this last charter until after the revolution. The charter comprehended within its territorial limits all the old colony of the Massachusetts Bay, the colony of New Plymouth, the province of Maine, the territory called Acadia, or Nova Scotia, and all the lands lying between Nova Scotia and Maine; and incorporated the whole into one province by the name of the Province of the Massachusetts Bay in New England, to be holden as of the royal manor of East Greenwich, in the county of Kent. It confirmed all prior grants made of lands to all persons, corporations, colleges, towns, villages, and schools. It reserved to the crown the appointment of the governor, and lieutenant-governor, and secretary of the province, and all the officers of the Court of Admiralıy. It provided for the appointment, annually, of twenty-eight counsellors, who were to be chosen by the General Court, and nominated the first board. The governor and counsellors were to hold a council for the ordering and directing of the affairs of the province. The governor was invested with the right of nominating, and, with the advice of the council, of appointing all military officers, and all sheriffs, provosts, marshals, and justices of the peace, and other officers of courts of justice. He had also the power of calling the General Court, and of adjourning, proroguing, and dissolving it. He had also a negative upon all laws passed by the General Court. The General Court was to assemble annually on the last Wednesday of May; and was to consist of the governor and council for the time being, and of such representatives, being freeholders, as should be annually elected by the freeholders of each town who possessed a freehold of forty shillings annual value, or other estate to the value of forty pounds. Each town was entitled to two representatives ; but the General Court was, from time to time, to decide on the number which each town should send. The General Court was invested with full authority to erect courts, to levy taxes, and make all wholesome laws and ordinances, “ so as the same be not repugnant or contrary to the laws of England ;” and to settle annually all civil officers, whose appointment was not otherwise provided for. All laws, however, were to be sent to England for approbation or disallowance; and if disallowed, and so signified under the sign manual and signet, within three years, the same thenceforth to cease and become void ; otherwise to continue in force according to the terins of their original enactment. The General Court was also invested with authority to grant any lands in the colonies of Massachusetts, New Plymouth, and province of Maine, with certain exceptions. The governor and council were invested with full jurisdiction as to the probate of wills and granting administrations. The governor was also made commander-in-chief of the militia, with the usual martial powers ; but was not to exercise martial law without the ad. rice of the council.
In case of his death, removal, or absence, his authority was to devolve on the lieutenant-governor, or, if his office was vacant, then on the counc'l; With a view also to advance the growth of the province by en
couraging new settlements, it was expressly provided, that there should be
liberty of conscience allowed in the worship of God to all Christians, except Papists;." and that all subjects inhabiting in the province, and their children born there, or on the seas going or returning, should have all the liberties and immunities of free and natural subjects, as if they were born within the realm of England. And, in all cases an appeal was allowed from the judgments of any courts of the province.to the king, in the privy council, in England, where the matter in difference exceeded three hundred pounds sterling. And, finally, there was a reservation of the whole admiralty jurisdiction to the crown; and of a right to all subjects to fish on the coasts.
After the grant of the provincial charter, in 1691, the legislation of the colony took a wider scope, and became more liberal, as well as nore exact. At the very first session an act passed, declaring the general rights and liberties of the people, and embracing the principal provisions of Magna Charta on this subject. Among other things, it was declared, that no tax could be levied but by the General Court; that the trial by jury should be secured to all the inhabitants; and that all lands shall be free from escheats and forfeitures, except in cases of high treason. A habeus corpus act was also passed at the same session, but it seems to have been disallowed by the crown. Chalmers asserts that there is no circumstance, in the history of colonial jurisprudence, better established, than the fact that the habeas corpus act was not extended to the plantations until the reign of Queen Anne.
Lands were made liable to the payment of debts. The right of choosing their ministers was, after some struggles, secured in effect to the concure rent vote of the church and congregation in each parish, and the spirit of religious intolerance was in some measure checked, if not entirely subdued. Among the earliest acts of the provincial legislature, which were approved, were an act for the prevention of frauds and perjuries, conform able to that of Charles II. ; an act for the observance of the Lord's day; an act for solemnizing marriages by a minister or a justice of the peace; an act for the support of ministers and schoolmasters; an act for regulating towns and counties; and an act for the settlement and distribution of the estates of persons dying intestate.
NEW HAMPSHIRE. In November, 1629, Captain John Mason obtained a grant, from the council of Plymouth, of all that part of the mainland in New England, “ lying upon the sea-coast, beginning from the middle part of the Merri mack River, and thence to proceed northwards along the sea-coast to Piscataqua River, and so forwards up within the said river, and to the farthest head thereof; and from thence north-westwards until threescore miles be finished from the first entrance of Piscataqua River; and also from Merri mack through the said river, and to the farthest head thereof, and so for ward up into the lands westwards, until threescore miles be finished; and from thence to cross overland to the threescore miles and accounted from Piscataqua River, together with all islands and islets within five leagues' distance of the premises.” This territory was afterwards called New Hampshire. The land so granted was expressly subjected to the conditions and limitations in the original patent.
A further grant was made to Mason by the council of Plymouth about the time of the surrender of their charter, (220 April, 1635,) “ beginning
from the middle part of Naumkeag River, (Salem,) and from thence to proceed eastwards along the sea-coast to Cape Ann, and round about the same to Piscataqua Harbor; and then covering much of the land in the prior grant, and giving to the whole the name of New Hampshire.
In the exposition of its own charter, Massachusetts contended that its limits included the whole territory of New Hampshire; and, being at that time comparatively strong and active, she succeeded in establishing her jurisdiction over it, and inaintained it with unabated vigilance forty years. The controversy was finally brought before the king in council; and in 1679, it was solemnly adjudged against the claim of Massachusetts. And it being admitted that Mason, under his grant, had no right to exercise any powers of governinent, a commission was, in the same year, issued by the crown for the government of New Hampshire.
New Hampshire continued down to the period of the revolution to be governed by commission as a royal province, and enjoyed the privilege of enacting her own laws through the instrumentality of a General Assembly, in the manner provided by the first cominission.
The laws of New Hampshire, during its provincial state, partook very much the character of those of the neighboring province of Massachusetts.
MAINE. In April, 1639, Sir Ferdinando Gorges obtained from the crown a confirmatory grant of all the land from Piscataqua to Sagadahock and the Kennebeck River, and from the coast into the northern interior one hundred and twenty miles; and it was styled “ The Province of Maine.” Of this province he was made Jord palatine, with all the powers, jurisdiction, and royalties, belonging to the bishop of the county palatine of Durham; and the lands were to be holden as of the inanor of East Greenwich. The charter contains a reservation of faith and allegiance to the crown, as having the supreme dominion; and the will and pleasure of the crown is signified, that the religion of the Church of England be professed, and its ecclesiastical government established, in the province. It also authorizes the palatine, with the assent of the greater part of the freeholders of the province, to make laws, not repugnant or contrary, but as near as conveniently inay be, to the laws of England, for the public good of the province; and to erect courts of judicature for the determination of all civil and criminal causes, with an appeal to the palatine. But all the powers of government, so granted, were to be subordinate to the power and regement,” of the lords commissioners for foreign plantations for the time being.
A controversy between Massachusetts and the palatine, as to jurisdiction over the province, was brought before the privy council at the same time with that of Mason respecting New Hampshire, and the claim of Massachusetts was adjudged void. Before a final adjudication was had, Massachusetts had the prudence and sagacity, in 1677, to purchase the title of Gorges for a trilling sum; and thus, to the great disappointment of the crown, (then in treaty for the same object,) succeeded to it, and held it, and governed it as a provincial dependency until the fall of its own charter; and it afterwards, as we have seen, was incorporated with Massachusetts, in the provincial charter of 1691.
CONNECTICUT. The colony of New Haven had a separate origin, and was settled by emigrants immediately from England, without any title derived from the
patentees. They began their settlement in 1638, purchasing their lands of the natives ; and entered into a solemn compact of government. By it no person was admitted to any office, or to have any voice at any election, unless he was a member of one of the churches allowed in the do minion. There was an annual election of the governor, the deputy, unagistrates, and other officers, by the freemen. The General Court consisted of the governor, deputy, magistrates, and two deputies from each plantation
Other courts were provided for; and Hutchinson observes, that their laws and proceedings varied in very few circumstances from Massachusetts, except that they had no jury, either in civil or criminal cases. All matters of facts were determined by the court.
Soon after the restoration of Charles II. to the throne, the colony of Connecticut, aware of the doubtful nature of its title to the exercise of sovereignty, solicited, and in April, 1662, obtained, from that monarch, a charter of government and territory. The charter included within its limits the whole colony of New Haven; and as this was done without the consent of the latter, resistance was made to the incorporation, until 1665, when both were indissolubly united, and have ever since remained under one general government.
In 1685, a quo warranto was issued by King James against the colony, for the repeal of the charter. No judgment appears to have been rendered upon it; but the colony offered its submission to the will of the crown; and Sir Edmund Andros, in 1637, went to Hartford, and, in the name of the crown, declared the government dissolved. They did not, however, surrender the charter ; but secreted it in an oak, which is still venerated; and immediately after the revolution of 1688, they resumed the exercise of all its powers. The successors of the Stuarts silently suffered them to retain it until the American Revolution, without any struggle or resistance. The charter continued to be maintained as a fundamental law of the state until the year 1818, when a new constitution of government was framed and adopted by the people. The laws of Connecticut were, in many respects, similar to those of Massachusetts.
RHODE ISLAND. Roger Williams succeeded in obtaining, from the Earl of Warwick, in 1643, a charter of incorporation of Providence Plantations; and also, in 1644, a charter from the two houses of Parliament (Charles I. being then driven from his capital) for the incorporation of the towns of Providence, Newport, and Portsmouth, for the absolute government of thenselves, but according to the laws of England.
Under this charter an assembly was convened in 1647, consisting of the collective freemen of the various plantations. The legislative power was vested in a court of commissioners of six persons, chosen by each of the four towns then in existence. The whole executive power seems to have been vested in a president and four assistants, who were chosen from the freemen, and formed the supreme court for the administration of justice.
They continued to act under their foriwer government until the resloration of Charles II. That event seems to have given great satisfaction to these plantations. They immediately proclaimed the king, and sent an agent to England; and in July, 1663, after some opposition, they succeeded in obtaining a charter from the crown.