New York's being a frontier, and my being to supersede the present Governor thereof."1

His arrival

in Boston. 1699.

Under the Lieutenant-Governor of Massachusetts, affairs proceeded in so satisfactory a train, that the superior magistrate did not consider his immediate presence there to be needed; and he remained at New York a full year, conducting meanwhile an active correspondence with Stoughton. When at length, however, he came to Boston, where he was received with a warm and generous welcome, it was evident to what party his sympathies inclined. In England, while he was a member of the House of Commons, he had, as has been told, taken an active part in proceedings against Dudley for his malicious treatment of Leisler. Influenced more or less by this resentment, he was inclined to treat Stoughton with coldness as Dudley's partisan, and to confide in Elisha Cooke and his friends.3

1 British Colonial Papers, Aug. 26, 1697; comp. Ibid., May 10.

2 1697, May 27, Stoughton announced the Governor's appointment (General Court Record sub die); and July 12 the court passed a vote providing for his reception. (Ibid.) Dec. 16, his arrival being then expected, two Magistrates (Wait Winthrop and Elisha Cooke) and the Speaker of the House (Penn Townshend) were sent to New York to greet him and carry an address. (Ibid.) They were accompanied by a chaplain (John Rogers), whom the court employed to take care of their spiritual health. April 12, 1699, when Bellomont had at last given notice of his intention to come to Massachusetts from New York, Stoughton wrote to Sir Henry Ashurst that he should be glad to be eased of the burdensome care and fatigue of government, which," he says, "I have

May 26.

been so long obliged to undergo, to the no little impairment of the health of my body." (British Colonial Papers.)

8 Fletcher, of New York, or perhaps it was Evans, a navy officer, one of Fletcher's satellites, that was meant, -came in for a share of the frank vehemence of the Earl's aristocratic contempt: "I serve the King in the station I am in honestly and with my endeavors, and 'tis hard that I must be so barbarously treated by such an upstart fellow, the son of a shoemaker in Ireland, and I expect from your Lordships justice." (Lord Bellomont to the Lords of the Admiralty, Sept. 7, 1699, in British Colonial Papers.) The Board of Trade had received charges against Fletcher of complicity with the pirates. (Journal of the Board for Sept. 15, 1698; comp. O'Callaghan, IV. 479 et seq.)

Legislation

diciary.

1692.

1695.

The business of immediate interest in Massachusetts at the time of the arrival there of Lord Bellomont on the Ju- concerned the existing judicial system of the Province. It has been related that in the first year of the organization under the new charter an Act was passed by the General Court" for the Establishing Nov. 25. of Judicatories and Courts of Justice within the Province." When, just before the expiration of the three years to which the King's right to abrogate the Aug. 22. laws was limited by the charter, his Privy Council went to work on the early provincial legislation, among the thirteen Acts which its wakeful jealousy disallowed out of the thirty-five passed at the second session of the first provincial General Court, was the Act" for the Establishing of Judicatories." The objection to it was that, departing from the words of the charter, it restricted the right of appeals to the Privy Council to personal actions involving a sum exceeding three hundred pounds.1

1696.

1698.

Being informed of this, the General Court re-enacted their law, with the exception of the obnoxious Oct. 3. clause, and of a provision for establishing a Court of Equity. This Act in turn was disapproved by the Privy Council, for an alleged reason which seems either Nov. 24. not weighty or else not perspicuously expressed. It is not unnatural to think that what in fact influenced the Council was the peculiarity of the language in which the General Court had withdrawn the exceptionable enactThe new law did not invest the suitor with an unlimited privilege of appeal, which was what the English Ministry wanted. It" declared void, and of none effect, the section or paragraph of the said Act providing for liberty of appeal unto his Majesty in Council," thus withdrawing the question of appeal under whatsoever condi

ment.

1 Provincial Acts and Resolves, I. 73, 76; comp. 217.

tions, and leaving the General Court unsustained indeed by the crown in the qualification which it had sought to obtain, but, on the other hand, uncommitted by any action on its own part to an abatement of its claim to complete exemption.1

1697.

1698.

May.

Nov. 24.

The General Court tried again. They passed an "Act for Establishing of Courts," which went more into details, but was substantially the same as that of June 19. five years before. It renewed the provision restricting appeals to England to cases of pecuniary importance. It was hoped, perhaps, that the Privy Council would rather on reflection have an express grant of appeals, though a limited one, than have the whole question remain open; and the Lieutenant-Governor and Council sent to the King a" Representation and Address relating to appeals, and praying to be continued in the enjoyment of all those privileges granted in the royal charter." This Act too was, however, disallowed in England, for the alleged reason that, inasmuch as it granted the right of trial by jury in all cases, it took away the option given by English law to custom-house officers, respecting trial by an Admiralty Court, which has no jury, and so interfered with a vigorous enforcement of the Navigation. Laws. The Superior Court, which was engaged in a trial when intelligence to this effect was received, im- 1699. mediately dissolved itself. It is likely that this April 26. movement hastened Lord Bellomont's journey to Massachusetts, and that an anticipation of it was the cause of the General Court's urgency when they sent to New York an Address praying that he would "be Nov. 22. pleased to favor the Province with his presence

1698.

4 Washburn, Judicial History of Massachusetts (quoting from Sewall's Diary), 154. — The courts of justice have fallen." (Bellomont's speech to the General Court, June 2, 1699.)

so soon as the season of the year might comfortably admit his undertaking so long and difficult a journey. "1

1699.

June 26.

He came accordingly, as has been mentioned, in the following spring, and in his first speech to the June 2. General Court 2 advised a re-enactment of the law for constituting courts, with an omission of the obnoxious provision; and that step was immediately taken, so far as that all reference to appeals was avoided, and that question was relegated to future consideration. Certain chancery powers were at the same time given to that court and to the Court of Common Pleas, and it was now declared that the Superior Court was to have jurisdic tion “as fully and amply, to all intents and purposes whatsoever, as the Courts of King's Bench, Common Pleas, and Exchequer, within his Majesty's kingdom of England, have or ought to have." The British ministry made no further objection, and thus at length the judicial system of the Province was permanently established. For the administration of Admiralty powers, which, exercised by the Assistants under the colonial charter, had, under the charter of King William, been reserved to the crown, the Lords Commissioners of the Admiralty proceeded to

tended, without doubt, to serve the ends of popery. It is too well known what interest that King favored, who parted with Nova Scotia, and of what religion he died." This was delicate ground for the courtiers of the Dutch King. Reflections on the policy of James the Second and his brother were reflections on not a few persons now sitting in high seats about the nephew of those monarchs. The Board of Trade sent the Governor a caution (April 11, 1700), which came too late to serve its purpose," not to reflect on preceding reigns." (Brit ish Colonial Papers.)

in his speech the next year he recurred to the topic, declaring that "the parting with Canada to the French [by the treaty of Breda], and the eastern country, ... were most execra- 8 Provincial Acts and Resolves, ble treacheries to England, and in- I. 367-375; 465.

Constitute a court of Vice-Admiralty for New England and New York, with a King's Advocate, a Registrar, and a Marshal. The common-law courts claimed a right as recognized by the charter, and confirmed by the law, to revise the decisions of the Admiralty Court, which had the important function of trying offences against the Laws of Trade; and this conflict of jurisdiction finally led to important complications.

While affairs in Massachusetts were in loyal and competent hands, and could proceed satisfactorily without the Governor's personal attention, New York was torn by factions, and never free from danger from the excitable Indians on the western frontier, who were now also exasperated at having been deserted by the English in the late treaty, and left unaided to provide for their own protection against the French of Canada. Lord Bellomont remained in 1700. Massachusetts only fourteen months. While he was there, he used laudable diligence in preparing himself to make reports to his superiors on the condition of his Province; but, as was to have been expected from his own want of acquaintance with the country, and the little time at his disposal for inquiry, the Massachuinformation which he communicated was by no means exact.1 He informed the Lords of Trade that the

1 Letter of Lord Bellomont to the Lords of Trade, of Aug. 28, 1699. (British Colonial Papers.) Comp. his letter to the Lords of April 20, 1700, in O'Callaghan, IV. 638: "I pretend to be able to demonstrate that if the Five Nations should at any time, in conjunction with the Eastern Indians and those that live within these plantations, revolt from the English to the French, they would in a short time drive us quite out of this continent; and the reason is plain, for their way of fight is not to come hand to hand, or to present their bodies to their enemies, but

June.

Lord Bello

mont's im

pressions of

setts.

they lie skulking in the woods behind bushes, and flat on their bellies, and if those they shoot at drop, then they run and scalp them, but if they perceive they have missed their shot, they run away without being so much as seen (for the most part) by those they shoot at; and 'tis to as much purpose to pursue them in the thick woods as to pursue birds that are on the wing. They laugh at the English and French for exposing their bodies in fight, and call them fools. At my first coming hither, I used to ridicule the people here for suffering three or four hundred Indians to cut