founding a broad political government, subject to the crown of England, but yet enjoying many exclusive privileges.1

§ 68. The General Court, in their address to Parliament, in 1646, in answer to the remonstrance of certain malecontents, used the following language:2 (a) "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 allowance of 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 column 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."

§ 69. 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.3

11 Hutch. Hist. 35, 36, 37, 410, 507, 529; Hutch. Coll. 196, 199, 200, 203, 205, 207, 329, 330, 417, 418, 420, 477; 1 Hutch. Hist. 410, 415; 1 Chalmers's Annals, 151, 153, 157, 161; Robertson's America, B. 10; Marsh. Hist. Colon. ch. 5, 139.

21 Hutch. Hist. 145, 146; Hutch. Coll. 199, &c.

8 Robertson's America, B. 10; 1 Hutch. Hist. 35, 36, 203; 1 Haz. Coll. 320.

(a) See Palfrey, Hist. of New England, II. 174.

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.2 (a) At first, the whole of the magistrates (or assistants) and the representatives sat together, and acted as one body in enacting all laws and orders; but at length, in 1644, they separated into two distinct and independent bodies, each of which possessed a negative upon the acts of the other. This course of proceeding continued until the final dissolution of the charter.

§ 70. It may be well to state, in this connection, that the council established in Plymouth in a very short period after the grant of the Massachusetts charter (in 1635) finally surrendered their own patent back to the crown. They had made other grants of territory, which we shall hereafter have occasion to notice, which had greatly diminished the value as well as importance of their charter. But the immediate cause of the surrender was the odious extent of the monopolies granted to them, which roused the attention of Parliament and of the nation at large, and compelled them to resign what they could scarcely maintain against the strong current of public opinion. The surrender, so far from working any evil, rather infused new life into the colonics which sprung from it, by freeing them from all restraint and supervision by a superior power, to which they might perhaps have been held accountable. Immediately after this surrender legal proceedings were instituted against the proprietors of the Massachusetts charter. Those who appeared were deprived of their franchises. But fortunately the measure was not carried into complete exccution against the absent proprietors acting under the charter in America.5

§ 71. After the fall of the first colonial charter in 1684,6

1 Col. and Province Laws (1814), ch. 35, p. 97; Hutch. Coll, 203, &c.; 1 Hutch. Hist. 449.

21 Hutch. Hist. 35, 36, 37, 94, note, 449; 1 Holmes's Annals, 222; 1 Haz. Coll. 320, 321; 1 Chalmers's Annals, 157.

81 Hutch. Hist. 449; 1 Chalmers's Annals, 166; Col. and Province Laws (1814), ch. 31, p. 88; Hutch. Coll. 205; 1 Doug. Summ. 431.

41 Holmes's Annals, 227; 1 Haz. Coll. 390, 393; 1 Chalmers's Annals, 94, 95, 99. 5 1 Holmes's Annals, 227; Hutch. Coll. 101, 104; 2 Haz. Coll. 423, 425; 3 Chalmers's Annals, 161.

1 Holmes's Annals, 412.

(a) Palfrey, Hist. of New England, I. 371.

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 Acadie, 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 Admiralty. It provided for the appointment annually of twentyeight 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 authority, with the advice and consent of the council, to nominate and appoint "judges, commissioners of oyer and terminer, sheriffs, provosts, marshals, justices of the peace, and other officers to the council and courts of justice belonging." The governor was also invested with the command of the militia, and with power to appoint any chief commander or other officer or officers; to train, instruct, exercise, and govern the militia, to lead them in war, and to use and exercise the law martial in time of actual war, invasion, or rebellion. 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 Wednes day of May, and was to consist of the governor and council for the time being, and of such representatives being frecholders as should be annually elected by the freeholders in 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 terms of their original enactment. The General Court was also invested with authority to grant any lands in the colonics of Massachusetts, New Plymouth, and province of Maine, with certain exceptions The governor and council were invested with full jusrisdiction 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 advice 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 council. With a view also to advance the growth of the Province by encouraging new settlements, it was expressly provided that there should be "a 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. Considering the spirit of the times, it must be acknowledged that, on the whole, this charter contains a liberal grant of authority to the Province, and a reasonable reservation of the royal prerogative. It was hailed with sincere satisfaction by the colony, after the dangers

1 The charter will be found at large in the Colony and Province Laws of Massachusetts, printed in 1814. Its substance is well summed up in 1 Holmes's Annals, 436. Under the first charter the admiralty jurisdiction was exercised by the Colonial Common Law Courts, even in capital cases. 1 Hutch. Hist. 451.

which had for so long a time menaced its liberties and its peace.1

4

§ 72. In reviewing the laws passed by the Legislature of Massachusetts during its colonial state, the first and most important consideration is the early care with which the public rights of the inhabitants were declared and established. No man's life, person, honor, or good name was to be affected; no man was to be deprived of his wife or children or estate, unless, by virtue or equity of some express law of the General Court, "or, in case of a defect of a law in any particular case, by the Word of God; and in capital cases, or in cases of dismembering or banishment according to that Word, to be judged of by the General Court." 2 No persons but church-members were allowed to become freemen; and all persons of twenty-one years of age were allowed to dispose of their estate by will or any proper conveyance. All conveyances were to be by deed acknowledged and recorded in the public records. All lands and hereditaments were declared free from all fines and forfeitures. Courts of law were established, and local processes provided for.5 The trial by jury in civil and criminal cases was secured." Wager of law was not allowed but according to law, and according to the precept in Exodus (xxii. 8). Difficult cases of law were finally determinable in the Court of Assistants or in the General Court, by appeal or petition. In criminal cases where the law prescribed no penalty, the judges had power to inflict penalties "According to the rule of God's Word."7 Treason, murder, poisoning, arson, witchcraft, sodomy, idolatry, blasphemy, man-stealing, adultery, false witness, conspiracy, and rebellion, cursing or smiting of parents by children, being a stubborn or rebellious son, burglary, and rape (in particular circumstances) were offences punishable with death. For the severity of some of these punishments the Gencral Court expressly justified themselves by the language of the

11 Hutch. Hist. 415, 416.

2 Hutch. Coll. 201.

8 Ant. Col. and Prov. Laws, ch. 4, p. 44; ch. 104, p. 204.

4 Ant. Col. and Prov. Laws, ch. 1, p. 41; ch. 28, p. 85; 1 Hutch. Hist. 455.

6 Hutch. Coll. 203, 205.

61 Hutch. Hist. 450; Hutch. Coll. 203, 205.

7 Hutch. Coll. 205.

8 Ant. Col. and Prov. Laws, ch. 18, pp. 58, 59, 60; 1 Hutch. Hist. 440, 441, 442; 1 Belk. New Hampshire, ch. 4, p. 66.