Cushing, Sylvanus Bourne, Zaccheus Mayhew, Enoch Coffin and John Otis, commissioners. xi. p. 54. See act 1743-44, chap. 6.

Aug. 9, 1746. For the trial, at Nantucket, of Jeremy Jude, an Indian, for murder: -John Cushing, Sylvanus Bourne, Zaccheus Mayhew, Enoch Coffin and John Otis, commissioners. Ibid., p. 652. See act 1746-47, chap. 7.

It was voted that the Society adjourn until next September, authority being reserved for the President and Secretary to call a special meeting at any time during the vacation, if one is deemed necessary.

SEPTEMBER MEETING, 1883.

The monthly meetings, which had been discontinued during the summer, were resumed on Thursday, the 13th instant. In the absence of other officers, Mr. DEANE, Vice-President, occupied the chair. In opening the meeting he congratulated the Society that the vacation had passed without the loss of a single name from either the resident or honorary roll of members.

The Recording Secretary read the report of the last meeting, and it was accepted.

The Librarian announced the accessions to the Library. The Corresponding Secretary communicated a plan for the preparation of an official history of the United States, in commemoration of the completion of the first century of the government under the Constitution. To carry out this plan, a bill was introduced into the Senate of the United States which provided that such a Centennial History should be published by the government at an expense not exceeding one hundred thousand dollars. The bill was referred to the Committee on Education and Labor, and on March 2, 1883, they reported it back without recommendation, but with a statement in its support which had been read before them by Dr. Franklin B. Hough. This gentleman now wrote to the Massachusetts Historical Society, requesting them to take the matter into consideration, and, if they approved, to express their approbation in such terms as they might deem proper for submission to a committee of Congress before whom the subject may come at its next session. The papers were referred to Messrs. Hill, Green, and Chamberlain, for their judgment and report.

Dr. GREEN called attention to a volume which had been bought from the Savage Fund, which was entitled "Letters from General Washington to General Heath." It appeared to be an original work; but it was, in fact, a copy of the Heath Papers, which were published in the fourth volume of the fifth series of the Society's Collections, with a new titlepage, and engravings of Washington and Heath inserted.

The Chairman introduced the subjoined letter from the Hon. Peleg W. Chandler :

CHARLES DEANE, Esq., LL.D.

BRUNSWICK, MAINE, Aug. 24, 1883.

MY DEAR SIR, - Your .favor of the 9th inst. reached me at my summer residence here when I was pressed with so many engagements that I could not give it immediate attention. It is only this day that I have found time to consider the subject of your note, and will now give you in brief my impressions.

You remind me that I once wrote about the witch-trials at Salem, and that I said, as well as Emory Washburn in his "Judicial History of Massachusetts," that the court established by Governor Phips — the Oyer and Terminer for the trial of the accused You was illegal. say that Mr. A. C. Goodell read a paper at the last meeting of the Historical Society, in which he takes the ground that Phips and his council had full authority by the charter to issue the writ for the Oyer and Terminer. You say that you had some question about it, which you presented to Mr. Goodell afterwards, and to which he has replied in some letters which you send me to read.

If it were proper, I should be tempted to plead the statute of limitations for any error in a statement made by me more than forty years ago, and which has never been questioned until recently, so far as I know. But I suppose the legal maxim, nullum tempus occurrit regi, is applicable to all historic and literary works, and an author may at any time be called on to defend them if living, or to suffer in reputation if dead.

You do not send me the paper read by Mr. Goodell to the Historical Society, which I regret, although I gather from his letters the scope of his ingenious argument.*

Governor Phips, in erecting a tribunal at Salem in 1692, professed to act under the authority of the second charter. That instrument provides (1) for the erection of legal tribunals, and (2) for the appointment of judges and other officers of the courts.

...

The Great and General Court, it says, "shall forever have full power and authority to erect and constitute judicatories and courts of record or other courts for the hearing, trying, and determining of all manner of crimes, offences, pleas, processes, plaints, actions, matters, causes, and things whatsoever, arising or happening within our said province or territory; or between persons inhabiting or residing there, whether the same be criminal or civil, and whether the said crimes be capital or not capital."

It would be difficult to construct a sentence giving more complete authority in the premises or more effectually excluding the conclusion that any power in this respect was intended to be conferred upon anybody else, unless the same were plainly expressed in the form of some limitation or reservation.

* Mr. Goodell's argument, relating to the Oyer and Terminer Court of 1692, was only briefly stated in his paper as read before the Society at the June meeting, but was brought out in his subsequent letters to Mr. Deane here referred to. Mr. Goodell has more fully elaborated the subject in the preceding pages. - EDS.

Then, secondly, as to the officers of these tribunals, the charter provides that "it shall and may be lawful for the said governor, with the advice and consent of the council, from time to time to nominate and appoint judges, commissioners of oyer and terminer, sheriffs, provosts, marshals, justices of the peace, and other officers to our council and courts of justice belonging." Certainly it would be hard to express more concisely and clearly the duties of the Great and General Court to erect tribunals of justice, civil and criminal, and of the Governor and Council to appoint the necessary officers to carry on the machinery of these courts.

Now, Governor Phips undertook to erect a tribunal called Oyer and Terminer for the witchcraft business, and also to appoint the judges or commissioners. To be sure, this was all done in one writ or order; but this makes it none the less a violation of the charter, the clear intent of which was to keep the powers and duties entirely separate of establishing courts and of appointing judges.

Mr. Goodell's discussion of the phrase "Oyer and Terminer" strikes me as more ingenious than sound. The term has been variously used, but in general means a class of courts of original criminal jurisdiction of the highest sort. "In English practice, a Commission of Oyer and Terminer is a commission under the king's great seal, directed to certain persons among whom two common-law judges are usually appointed, empowering them to hear and determine treasons, felonies, robberies, murders, and criminal offences in general."

This the king could do in one writ or commission, but he never gave any such authority to the governor of Massachusetts, and none such could be inferred. This doctrine is maintained by the ablest writers on the subject. Hutchinson a man of enlarged and liberal views, thoroughly conservative but eminently fair and judicial, who wrote about seventy years after these events, and who had been himself at the head of the judiciary —expresses himself with characteristic caution, but leaves no doubt as to his opinion. Dr. Palfrey is very emphatic upon the point; and the same may be said of Emory Washburn, who was undoubtedly more thoroughly imbued with the spirit of colonial legislation and more completely understood the legal history of the Commonwealth than any man of the age. The same ground is taken by Hildreth, Bancroft, and notably by President Quincy in his "History of Harvard University." It is also a significant fact that the special tribunal at Salem was swept away by an Act of the General Court constituting a regular tribunal of supreme jurisdiction, of which Stoughton himself was made the chief justice and lost his temper at an early session because he could not influence that court as he had the previous one.

The precise phraseology of this Act I cannot give, but am quite cer tain that its effect was as above expressed, although I believe the governor, who was alarmed at the proceedings of his own tribunal, asserted that he abolished that court himself. If he had authority to create the tribunal, how could the Great and General Court destroy it, even indirectly? No one will deny that the act of the Great and

General Court in erecting a tribunal having jurisdiction of witchcraft and other criminal offences was authorized by the charter. But if the governor might also create a court for the trial of "all manner of crimes and offences" in the county of Essex, and call it "Commissioners of Oyer and Terminer," it might have led to a direct conflict of authority in a matter of the utmost importance. Certainly such a power might have been so exercised as to completely nullify the authority and duty of the Great and General Court "to erect and constitute judicatories and courts of record and other courts" for the trial of "all manner of crimes, offences, pleas, processes, plaints, actions, matters, causes, and things whatsoever." The charter, as it seems to me, is liable to no such criticism.

In regard to these witchcraft proceedings two things ought always to be kept in mind. First, that the people of Massachusetts were in no way responsible for the Oyer and Terminer proceedings. The commissioners were set at work by a governor appointed by the king, — a dull and narrow man who was greatly under the meanest influences, and was especially controlled by the master spirit of evil and hate whom he created chief justice. Secondly, this tribunal was entirely composed of laymen; not a lawyer was upon the bench. Its proceedings were absurd and outrageous throughout. All sensible rules of evidence were ignored. There never were in any community, where the English common law was the citizen's birthright, such cruel and wanton violations of right, such absolute denials of justice, as at Salem in 1692. The witch-trials in England were bad enough, but there was nothing like ours in this fatal year. The chief justice, and chief prosecutor as well in this horrible business, was educated as a clergyman. He was narrow, hard, cruel, and able. "Terrible as" the literal "hell" in which he fully believed, he never repented; and while the comparatively insignificant and gentler Sewall publicly confessed his fault, and during all his remaining life humbly sought forgiveness for the part he took in this business; while the jurors signed and circulated a humble and solemn declaration of regret for the part they had borne in these trials; and while the government of the province felt, with the people, that the anger of a just God was upon them, and a proclamation was issued for a fast on the 14th of January, 1796, Stoughton braved it out to the last. Earnest men have sometimes had a certain satisfaction in the feeling, that, if the future sulphurous state in which he believed does exist, he has found it, and is more comfortable there than he would be anywhere else in the universe of a just and merciful God.

The portrait of this man adorns the walls of the University, and one of the most conspicuous halls is called after his name. Is it the only instance in which it would be well to hang out a sign with the significant words, PECUNIA NON OLET?