The Plymouth colonists acted, at first, altogether under the voluntary compact and association already mentioned. But they daily felt embarrassments from the want of some general authority, derived directly or indirectly from the crown, which should recognize their settlement and confirm their legislation. After several ineffectual attempts made for this purpose, they at length succeeded in obtaining, in January, 1629, a patent from the council established at Plymouth, in England, under the charter of King James, of 1620. This patent, besides a grant of the territory, upon the terms and tenure of the original patent of 1620, included an authority to the patentee (William Bradford) and his associates "to incorporate, by some usual or fit name and title, him or themselves, or the people there inhabiting under him or them, and their successors; from time to time to make orders, ordinances, and constitutions, as well for the better government of their affairs here, and the receiving or admitting any into their society, as also for the better government of his or their people, or his or their people at sea, in going thither or returning from thence; and the same to put or cause to be put in execution, by such officers and ministers as he or they shall authorize and depute; provided, that the said laws and orders be not repugnant to the laws of England, or the frame of gov ernment by the said president and council [of Plymouth Company] hereafter to be established."

The charter of 1629 furnished them, however, with the color of delegated sovereignty, of which they did not fail to avail themselves. They assumed under it the exercise of the most plenary executive, legislative, and judicial powers, with but a momentary scruple as to their right to inflict capital punishments. They were not disturbed in the free exercise of these powers, either through the ignorance or the connivance of the crown, until after the restoration of Charles II. Their authority under their charter was then questioned; and several unsuccessful attempts were made to procure a confirmation from the crown. They continued to cling to it, until, in the general shipwreck of charters, in 1684, theirs was overturned. An arbitrary government was then established over them, in common with the other New England colonies, and they were finally incorporated into a province, with Massachusetts, under the charter granted to the latter by William and Mary, in 1691.

After providing for the manner of choosing their governor and legislature, as above stated, their first attention seems to have been directed to the establishment of" free liberties of the free-born people of England.” It was therefore declared, almost in the language of Magna Charta, that justice should be impartially administered unto all, not sold or denied ; that no person should suffer "in respect to life, limb, liberty, good name, or estate, but by virtue or equity of some express law of the General Court, or the good and equitable laws of our nation suitable for us, in matters which are of a civil nature, (as by the court here hath been accustomed,) wherein we have no particular law of our own;" and none should suffer without being brought to answer by due course and process of law; that, in criminal and civil cases, there should be a trial by jury at all events upon a final trial on appeal, with the right to challenge for just cause; and, in capital cases, a peremptory right to challenge twenty jurors, as in England; that no party should be cast or condemned, unless upon the testimony of two sufficient witnesses, or other sufficient evidence, or circumstances, unless otherwise specially provided by law; that all persons of the age of twenty-one years, and of sound

memory, should have power to make wills and other lawful alienations f their estate, whether they were condemned, or excommunicated, or other; except that, in treason, their personal estate should be forfeited; but their real estate was still to be at their disposal. All processes were directed to be in the king's name. All trials in respect to land were to be in the county where it lay; and all personal actions, where one of the parties lived; and lands and goods were liable to attachment to answer the judg ment rendered in any action. All lands were to descend according to the free tenure of lands of East Greenwich, in the county of Kent; and all entailed lands according to the law of England. All the sons were to inherit equally, except the eldest, who was to have a double share. If there were no sons, all the daughters were to inherit alike. Brothers of the whole blood were to inherit; and if none, then sisters of the whole blood. All conveyances of land were to be by deed only, acknowledged before some magistrate, and recorded in the public records. Among capital offences were enumerated, without any discrimination, idolatry, blasphemy, treason, murder, witchcraft, bestiality, sodomy, false witness, man-stealing, cursing or smiting father or mother, rape, wilful burning of houses and ships, and piracy; while certain other offences, of a nature quite as immoral and injurious to society, received a far more moderate punishment. Undoubtedly, a reverential regard for the Scriptures placed the crimes of idolatry, blasphemy, and false witness, and cursing and smiting father and mother, among the capital offences. And, as might well be presumed from the religious sentiments of the people, ample protection was given to the church; and the maintenance of a public orthodox ministry, and of public schools, was carefully provided for.

MASSACHUSETTS.

Application was made for a charter to King Charles, who, accordingly, in March, 1628, granted to the grantees and their associates the most ample powers of government. The charter confirmed to them the territory already granted by the council established at Plymouth, to be holden of the crown, as of the royal manor of East Greenwich, in free and common soccage, and not in capite, nor by knight's service," yielding to the crown one fifth part of all ore of gold and silver, &c., with the exception, however, of any part of the territory actually possessed or inhabited by any other Christian prince or state, or of any part of it within the bounds of the southern colony (of Virginia) granted by King James. It also created the associates a body politic by the name of "The Governor and Company of the Massachusetts Bay in New England," with the usual powers of corporations. It provided, that the government should be administered by a governor, a deputy-governor, and eighteen assistants, from time to time elected out of the freemen of the company, which officers should have the care of the general business and affairs of lands and plantations, and the government of the people there; and it appointed the first governor, deputy-governor, and assistants, by name. It further provided, that a court or quorum, for the transaction of business, should consist of the governor, or the deputygovernor, and seven or more assistants, which should assemble as often as once a month for that purpose, and also that four great general assemblies of the company should be held in every year. In these great and general assemblies, (which were composed of the governor, deputy, assistants, and freemen present,) freemen were to be admitted free of the company, offi

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cers were to be elected, and laws and ordinances for the good and welfare of the colony made; "so as such laws and ordinances be not contrary or repugnant to the laws and statutes of this our realm of England." At one of those great and general assemblies held in Easter Term, the governor, deputy, and assistants, and other officers, were to be annually chosen by the company present. The company were further authorized to transport any subjects, or strangers willing to become subjects, of the crown, to the colony, and to carry on trade to and from it, without custom or subsidy, for seven years, and were to be free of all taxation of imports or exports to and from the English dominion for the space of twenty-one years, with the exception of a five per cent. duty. The charter further provided, that all subjects of the crown, who should become inhabitants, and their children born there, or on the seas going or returning, should enjoy all liberties and immunities of free and natural subjects, as if they, and every of them, were born within the realm of England. Full legislative authority was also given, subject to the restriction of not being contrary to the laws of England, as also for the imposition of fines and mulcts "according to the course of other corporations in England." Many other provisions were added, similar in substance to those found in the antecedent colonial charters of the crown.

The General Court, in their address to Parliament in 1646, in answer to the remonstrance of certain malcontents, used the following language: "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 an allowance for 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."

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. 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. At first, the whole of the magistrates (or assistants) and the representatives sat together, and as one body, in enacting all laws and or

ders. 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.

After the fall of the first colonial charter, in 1684, 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 Acadia, 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 twenty-eight 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 the right of nominating, and, with the advice of the council, of appointing all military officers, and all sheriffs, provosts, marshals, and justices of the peace, and other officers of courts of justice. 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 Wednesday of May; and was to consist of the governor and council for the time being, and of such representatives, being freeholders, as should be annually elected by the freeholders of 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 colonies of Massachusetts, New Plymouth, and province of Maine, with certain exceptions. The governor and council were invested with full jurisdiction 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 en

couraging 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.

After the grant of the provincial charter, in 1691, the legislation of the colony took a wider scope, and became more liberal, as well as more exact. At the very first session an act passed, declaring the general rights and liberties of the people, and embracing the principal provisions of Magna Charta on this subject. Among other things, it was declared, that no tax could be levied but by the General Court; that the trial by jury should be secured to all the inhabitants; and that all lands shall be free from escheats and forfeitures, except in cases of high treason. A habeas corpus act was also passed at the same session, but it seems to have been disallowed by the crown. Chalmers asserts that there is no circumstance, in the history of colonial jurisprudence, better established, than the fact that the habeas corpus act was not extended to the plantations until the reign of Queen Anne.

Lands were made liable to the payment of debts. The right of choosing their ministers was, after some struggles, secured in effect to the concurrent vote of the church and congregation in each parish, and the spirit of religious intolerance was in some measure checked, if not entirely subdued. Among the earliest acts of the provincial legislature, which were approved, were an act for the prevention of frauds and perjuries, conformable to that of Charles II.; an act for the observance of the Lord's day; an act for solemnizing marriages by a minister or a justice of the peace; an act for the support of ministers and schoolmasters; an act for regulating towns and counties; and an act for the settlement and distribution of the estates of persons dying intestate.

NEW HAMPSHIRE.

In November, 1629, Captain John Mason obtained a grant, from the council of Plymouth, of all that part of the mainland in New England, "lying upon the sea-coast, beginning from the middle part of the Merrimack River, and thence to proceed northwards along the sea-coast to Piscataqua River, and so forwards up within the said river, and to the farthest head thereof; and from thence north-westwards until threescore miles be finished from the first entrance of Piscataqua River; and also from Merrimack through the said river, and to the farthest head thereof, and so forward up into the lands westwards, until threescore miles be finished; and from thence to cross overland to the threescore miles and accounted from Piscataqua River, together with all islands and islets within five leagues' distance of the premises." This territory was afterwards called New Hampshire. The land so granted was expressly subjected to the conditions and limitations in the original patent.

A further grant was made to Mason by the council of Plymouth about the time of the surrender of their charter, (22d April, 1635,) "beginning