The new Constitution. the old Colonies of Massachusetts and Plymouth, and the territories of Maine and Nova Scotia, with all lands lying between the two last-named jurisdictions. Except for the little interruption at the mouth of the Piscataqua, the coast line of Massachusetts, as now constituted, extended from Martha's Vineyard and Nantucket at the south, to the mouth of the St. Lawrence at the north; while, with the exception of a narrow strip along the Hudson, recognized as belonging to New York, her territory reached westward to the Pacific Ocean. The charter provided that there should be a Governor, Lieutenant-Governor, and Secretary, to be appointed from time to time by the King. There was to be a Legislature, or General Court, in two branches; namely, a House of Representatives chosen as heretofore annually by the towns, and a Council, consisting of twenty-eight members, to be selected in the first instance by the King, and afterwards, from year to year, on the last Wednesday in May, by the General Court, subject to the Governor's rejection. Eighteen, at least, of the Counsellors were to be inhabitants or landholders in Massachusetts proper, four in what had been Plymouth Colony, three in Maine, and one in the country between the Kennebec and Nova Scotia; and seven were to be a quorum for the transaction of business. It was required of the Representatives to be freeholders, and each town for the present was to have two Representatives and no more; but this limitation was made subject to be changed by law. Bills passed by the Council and Representatives were subject to be rejected by the Governor. Laws approved by him went at once into effect, but were to be forthwith reported to the King, who might annul them at any time within three years from their enactment. The Governor was to be commander-in-chief of the militia, and to appoint military officers. He was also, with the consent of the Council, to appoint judges and all other officers connected with the courts.' The General Court was to constitute judicial courts (except courts of Admiralty, which were reserved for the jurisdiction of the crown, and except Probate courts, It is remarkable that the great question respecting the tenure of judicial office whether judges held their places quamdiu sese bene gesserint or durante beneplacito· - remained in dispute to the very end of the provincial period. Douglas no good authority, however - says (Summary, I. 472), "They [the Governors] nominate durante beneplacito all judges," &c. The charter does not touch the point, nor do the terms of the commissions issued to successive judges. Only two years before the war of the Revolution broke out, there was a controversy (Life and Works of John Adams, I. 118) between John Adams and Brattle, a Cambridge lawyer of reputation, as to a fact which, whatever it was, might be supposed to be familiar and notorious; the latter maintaining that judicial place had always been held under the charter during good beharior, the former that it had been held in dependence on the King and his Governor. In the silence of the charter, the laws, and the judicial record, Brattle argued that "what right, what estate vests in them [the judges], the common law of England, the birthright of every man here as well as at home, determines, and that is an estate for life, provided they behave well." (Ibid., III. 518.) Adams maintained that " the common law of England is so far from determining that the judges have an estate for life in their office, that it has determined the direct contrary." (Ibid., 521.) An Act of the year 1700 (twelfth and thirteenth of William the Third, Chap. II.) provided that "judges' commissions be made quamdiu se bene gesserint." But there is no reason to believe that this Act was ever regarded as applicable to the Colonies. Certainly, the judges of Massachusetts were practically at the mercy of the General Court at least, for the General Court voted their salaries from year to year. Till the reign of King George the Third (Acts of first of George the Third, Chap. XXIII.), all civil offices, conferred by royal writ, including those of the judges, were vacated at the demise of the King. Consequently, as often as a King died before this time, new judicial appointments might be made in Massachusetts. (Comp. Hutch. History, III. 96.) Governor Belcher, in 1730, pretending an analogy between the accession of a new sovereign and of a new Governor, claimed and exercised the right of making new nominations; but the measure was opposed in Council (Hutch. Hist., II. 376), and never was repeated, though Shirley, Belcher's successor, renewed the claim. As was pointed out at the time, and was urged afterwards by Mr. Adams, the judges, by the terms of their commissions, were not the Governor's officers, but the King's, and therefore not liable to be affected in their position by a change of Governors. (Adams, III. 569, &c.; comp. Hutch. History, II. 375, 376; III. 96, 390; Chalmers, Opinions of Eminent Lawyers, &c., 249, 258.) John Dickinson, on the eve of the American Revolution, understood the judges in all the Colonies to hold their places during the King's pleasure. (Letters from a Farmer, &c., 87.) The Provincial Act for a reconstitution of the courts in Lord Bellomont's time required new appointments, which were accordingly made July 17, 1699. (Prov. Council Rec., sub die.) Dudley, whose assumption of the government was contem which were to be constituted by the Governor in Council); to appoint, with the Governor's concurrence, all officers, besides such as were military or judicial; and to levy taxes on all proprietors and inhabitants. A General Court was to come together on the last Wednesday in May of every year, and at other times when summoned by the Governor, who might also adjourn, prorogue, or dissolve it. A great step was, that the religious element was eliminated from the government; the qualification of a voter was no longer to be membership of a church, but the possession of a freehold worth two pounds sterling a year, or of personal property to the amount of forty pounds sterling.' This measure put an end to what yet survived of the old clerical ascendency in politics.2 Liberty of conscience and of worship was secured to all Protestants; and it was provided that, in litigated civil cases not affecting real estate, appeals might be made from the courts to the King in Council when the amount in controversy exceeded three hundred pounds. Natives and inhabitants of the Province were to enjoy "all liberties and immunities of free and natural subjects as if they were born within the realm of England." Trees of two feet in diameter at a foot's distance from the ground, growing on common land, were to belong to the King, for the use of the royal navy.3 poraneous with the accession of a new monarch, immediately (June 29, 30, 1702) revised the list of judges. (Ibid.) The position and the action of Governor Bernard in 1761 were similar. — Governor Bernard, in the temporary disability of a judge, appointed a substitute (February, 1762) for the trial of a single cause. (Quincy's Massachusetts Reports, 551.) Other persons had from time to time been appointed for special service and limited terms. (Washburn, Judicial History of Massachusetts, 155, 156.) Mr. Ellis Ames, the learned associate editor of the Provincial Laws, that this word "forty" in the engrossed charter was a clerical error for fifty. (Proceedings of the Mass. Hist. Col. for 1768, 370; Province Laws, I. 363.) 2 Hutchinson says (Hist., I. 337) that, when they persuaded the people to refuse to give up the old charter (see above, Vol. III. 381, &c.), “the clergy turned the scale for the last time. The balance which they had held from the beginning they were allowed to retain no longer." 3 This provision is likely to have 1 It has been forcibly argued by been suggested by Phips, who, as a The Governor, Lieutenant-Governor, and Secretary were not to be the only crown officers in Massachusetts. Admiralty judges, and the prosecutors and other officers in their courts, King's Advocates, Registrars, and Marshals, were designated by the Lords of the Admiralty. The colonial wealth in naval stores had called for the employment of a Surveyor of the Woods, and Edward Randolph had held the office among his other annoying functions.1 The last provision of the new charter brought it into fresh prominence, and it was kept up at the cost of many embarrassments, as will hereafter be seen. Managers of the Post-Office, among whom also Randolph secured a place,2 were appointed by, and accountable to, the General PostOffice in England. More important than any of these officials were those who represented the English custom-house. An ordinance of the Long Parliament had exempted the plant 1643. 1645. May 14. 4 ers of New England from paying duties on mer- March 10. chandise brought by them from the parent country, or exported thither; and they were equally excepted from the operation of the later Navigation Law. At an early period Massachusetts imposed a duty on imported wines for the benefit of her own treasury; and in later times this form of revenue was made to embrace various articles, and to yield a consider- Nov. 7. able amount. When, after the accession of King Charles the Second, the dispensation in favor of New England was withdrawn, and measures were taken for 5 1668. 1669. May 19. shipbuilder, understood its impor- 10, 1643. (See printed Records, II. tance particularly well. 1 He was commissioned for the service in 1685, with an annual stipend for it of £50. (British Colonial Papers.) 2 See above, Vol. III. 484. It is entered in the Record of the Massachusetts General Court for May 34.) 1661. 1663. May 27. 1674. May 8. an extensive and rigorous execution of the Navigation Laws,1 the General Court of Massachusetts had anticiAug. 7. pated complaints by successive Acts directing the enforcement of those Laws within their jurisdicOct. 21. tion.2 The Act of Parliament usual on the accession of a monarch, by which the avails of custom dues called tonnage and poundage were settled on King Charles the Second, provided that these duties should be collected in every part of the King's dominions by officers appointed in England. A later Act regulated the appointment of these officers, and it was in the capacity of Collector of the Customs that Edward Randolph made his second visit to New England. Meanwhile the regulations of the Colony for local revenue remained in force. Imposts due to the English exchequer were to be paid to the King's collectors, while imposts levied by the colonial law continued to be received by the colonial naval officers.5 These two businesses were different; but they were sufficiently alike and sufficiently connected to admit and to tempt frequent interferences and collisions. 1678. The conditions of the franchise established by the new charter, and the power given to the King to repeal the laws, for this was the sense of his right to Its unsatisfactory character. - revise them, to entertain appeals from the courts of justice, and to appoint a Governor with prerogatives liable to pernicious abuse, - these provisions were enough to make the instrument intensely unpalatable to Mather and to many of the best men of that constituency for which 1 See above, Vol. II. 444; Vol. IV. Political Annals, I. 318, 320, 400, 19. &c. 2 See above, Vol. II. 513, 530; Vol. III. 276, 311; Mass. Rec., IV. (Part 2) 31; comp. 73, 87; V. 155, 236, 262, 337, 383. * See above, Vol. III. 310, 323; Vol. IV. 19; comp. Chalmers's 4 See above, Vol. III. 317, 333, 350. His commission as " Collector, Surveyor, and Searcher" for the New England Colonies (July 9, 1678) is in Mass. Hist. Col., XXVII. 129. See above, Vol. III. 352. |