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their charter (22 April, 1635), “beginning from the middle part of Naumkeag River [Salem] and from thence to proceed eastwards along the sca-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 IIampshire. This grant included a power of judicature in all cases, civil and criminal, “to be exercised and executed according to the laws of England as near as may be,” reserving an appeal to the council. No patent of confirmation of this grant appears to have been made by the crown after the surrender of the Plymouth patent.
§ 80. Various detached settlements were made within this territory; and so ill delined were the boundaries, that a controversy soon arose between Massachusetts and Mason in respect to the right of sovereignty over it. 8 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 maintained it with unabated vigilance for 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 government, a commission was, in the same year, issued by the crown for the government of New Hampshire. By the form of government described in this commission the whole executive power was vested in a president and council appointed by the crown, to whom also was confided the judiciary power with an appeal to England. In the administration of justice it was directed, that “the form of proceedings in such cases, and the judgment thereon to be given, be as consonant and agreeable to the laws and statutes of this our realm of England, as the present state
11 Haz. Coll. 383, 384, 385 ; 1 Chalm. Annals, 472, 473, 477 ; 1 Belk. N. Hampch. 1, p. 27.
2 i Hutch. Hist. 313, 314 ; Marsh. Colon. ch. 3, p. 97. 3 1 Hutch. Hist. 101, 108, 109, 311, 312 to 318.
• 1 Chulm. Annals, 477, 484, 485, 504, 505 ; Marsh. Colon. ch. 4, p. 109, ch. 6, pp. 167, 168; Hutch. Coll. 422 ; 1 Belk. N. Hamp. ch. 2, pp. 49, 50.
61 Chalm. Annals, 489, 490; 1 Hutch. Hist. 319 ; 1 Holmes's Annals, 395 ; Marsh Colon. ch. 6, p. 168; Rob. America, B. 10 ; 1 Belk. N. Hamp. ch. 6, pp. 137, 138; 1 Doug. Summ. 28 ; N. Hamp. Prov. Laws (edit. 1771), p. 1, &c.
and condition of our subjects inhabiting within the limits aforesaid, and the circumstances of the place will admit."i The legislative power was intrusted to the president, council, and burgesscs, or representatives chosen by the towns; and they were authorized to levy taxes and to make laws for the interest of the Provincc; which laws, being approved by the president and council, were to stand and be in force until the pleasure of the king should be known, whether the same laws and ordinances should receive any change or confirmation, or be totally disallowed and discharged. And the president and council were required to transmit and send over the same by the first ship that should depart thence for England after their making. Liberty of conscience was allowed to all Protestants, those of the Church of England to be particularly encouraged. And a pledge was given in the commission to continue the privilege of an assembly in the same manner and form, unless by inconvenience arising therefrom the crown should seo cause to alter the same. A body of laws was enacted in the first year of their legislation, which, upon being sent to England, was disallowed by the crown.3 New Flampshire continued, down to the period of the Revolution to be governed by commission as a royal Provincc; and enjoyed the privilege of enacting her own laws through the instrumentality of a general assembly, in the manner provided by the first commission. Some alterations wero made in the successive commissions, but none of them made any substantive change in the organization of the Province. The judicial power of the governor and council was subsequently, by law, confined to the exercise of appellate jurisdiction from the inferior courts; and in the later commissions a clause was inserted, that the colonial statutes should “not be repugnant, but as near as may be agreeable, to the laws and statutes of the realm of England.”5
§ 81. The laws of New Ilampshire, during its provincial state, partook very much of the character of those of the neighboring province of Massachusetts. Those regulating the descent and
1 N. Hamp. Prov. Laurs. (edit. 1771), pp. 1, 3.
2 1 Chalm. Annals, 489, 490 ; 1 Holmes's Annals, 395 ; 1 Belk. N. Hamnp. ch. 6, pp. 138, 139 ; 2 Belk. N. Hamp. Preface; N. Hamp. Prov. Laws (edit. 1771), p. 5.
41 Chalm. Annnls, 491, 492, 493, 508.
N. Hamp. Prov. Laws (edit. 1771), 19, 22, 55, 90, 104, 105,137, 143, 157, 163, 166.
distribution of estates, the registration of conveyances, the taking of depositions to be used in the civil courts, for the maintenance of the ministry, for making lands and tenements liable for the payment of debts, for the settlement and support of public grammar schools, for the suppression of frauds and perjuries, and for the qualification of voters, involve no important differences, and were evidently framed upon a common model. New Hampshire seems also to have had more facility than some other colonies, in introducing into her domestic code some of the most beneficial clauses of the acts of Parliament of a general nature, and applicable to its local jurisprudence. We also find upon its statute book, without comment or objection, the celebrated Plantation Act of 7 & 8 William 3, ch. 22, as well as the acts respecting inland bills of exchange (9 & 10 William 3, ch. 17), and promissory notes (4 Anne, ch. 9), and others of a less prominent character.
1 N. Hamp. Prov. Laws (edit. 1771), p. 209; Gov. Wentworth's Commission in 1766.
§ 82. In August, 1622, the Council of Plymouth (which seems to have been extremely profuse and inconsiderate in its grants 1) granted to Sir Ferdinando Gorges and Captain John Mason all the land lying between the rivers Merrimack and Sagadahock, extending back to the great lakes and rivers of Canada; which was called Laconia. In April, 1639, Sir Ferdinando obtained from the crown a confirmatory grant of all the land from Piscataqua to Sagadahock and the Kennebec River, and from the coast into the northern interior one hundred and twenty miles; and it was styled “The Province of Maine.” 3 Of this province he was made Lord 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 manor 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 bo professed, and its ecclesiastical government established in the provincc. It also authorizes tho 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 may be to the laws of England, for the public good of the Province; and to crect courts of judicature for the determination of all civil and criminal causes, with an appeal to the Palatinc. 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. The Palatine also had authority to make ordinances for the government of the province, under certain restrictions, and a grant of full admiralty powers, subject to those of the Lord Iligh Admiral of England. And
11 Hutch. Hist. 6, 104 ; Rob. America, B. 10 ; 1 Doug. Summ. 366, 380, 386. 2 1 Hutch. Hist. 316 ; 1 Holmes's Annals, 180 ; Belk. N. Hamp. ch. 1, p. 14. 3 1 Holmes's Annals, 254 ; 1 Chalm. Annals, 472, 473, 474 ; 1 Dong. Summ. 386, &c.
the inhabitants, being subjects of the crown, were to enjoy all the rights and privileges of natural-born subjects in England. 1
§ 83. Under these ample provisions Gorges soon established a civil government in the province, and made ordinances. The government, such as it was, was solely confided to the executive, without any powers of legislation. The province languished in imbecility under his care, and began to acquire vigor only when he ceased to act as proprietary and lawgiver.2 Massachusetts soon afterwards set up an exclusive right and jurisdiction over the territory, as within its chartered limits, and was able to enforce obcdience and submission to its power. It continued under the jurisdiction of Massachusetts until 1665, when the commissioners of the crown separated it for a short period; but the authority of Massachusetts was soon afterwards re-established. The 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.6 Before a final adjudication was had, Massachusetts had the prudence and sagacity, in 1677, to purchase the title of Gorges for a trifling sum; and thus, to the great disappointment of the crown (then in treaty for the same object), succeeded to it, and held and governed Maine 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 1691.6
1 1 Haz. Coll. 442, 445.
81 Chalm. Annals, 480, 481, 483 ; 1 Hutch. History, 176, 177, 256 ; 1 Holmes's Annals, 296; 2 Winthrop's Journ. 38, 42.
i Chalm. Aunals, 483, 484 ; 1 Holmes's Annals, 343, 348 ; Hutch. Coll. 422. 6 1 Chalm. Annals, 485, 504, 505; 1 Holmes's Annals, 388. o i Chalm. Annals, 486, 487 ; 1 Holmes's Annals, 388 ; 1 Hutch. Hist. 326.