« ΠροηγούμενηΣυνέχεια »
between it and the crown. They certainly were compelled to submit to superior power, and to such form of government as Charles II. and his successor James saw fit to establish until 1689, when William and Mary were proclaimed successors to the throne of England. On the arrival of the Prince of Orange they resumed their charter, and strove hard to secure the establishment of it, but without success, until 1691. This era in the history of the colony brings us to the third period in its legislative history. In the latter year a new charter was obtained, which was received at Boston on the 14th day of May, 1692. The province now embraced within this new charter the whole of the old colony, to which was added New Plymouth, the provinces of Maine and Nova Scotia, and all the country between Maine and Nova Scotia, which necessarily led to the union of the two colonies of Massachusetts Bay and New Plymouth. Under the new charter there was to be an annual meeting of the general court on a day therein designated, with authority to the governor to call an assembly at any time he thought proper, and to adjourn, prorogue, and dissolve at pleasure. He had no vote in the legislature, nor ought he to interest himself in matters of debate in either house; but no act of government was valid without his assent. pointed all military and judicial officers, with consent of the council; all other civil officers were elected by the two houses, the governor having a negative vote. Twenty-eight councillors were annually chosen by the general court or assembly. Mr. Justice Story says, “ The first charter of Massachusetts might be open to the objection that it provided only for a civil corporation within the realın, and did not justify the assumption of extensive executive, legislative, and judicial powers which were afterwards exercised upon the removal of that charter to America; and a similar objection might be urged against the Plymouth colony. But the charter of Wil
liam and Mary of 1691, was obviously upon a broader foundation, and was, in the strictest sense, a charter for general political government, a constitution for a state with sovereign powers and prerogatives, and not for a mere municipality. By this last charter the organization of the different departments of the government was in some respects similar to that in the provincial governments. By the statute 7 and 8 Wm. III., chap. 22, § 6, it was required that all governors appointed in charter and proprietary governments, should be approved by the crown before entering upon the duties of their office; but this statute was, if at all, ill observed, and seems to have produced no essential change in the colonial policy.” 1 Story on Const. 146, 147.
§ 58. After the vacating of the colony laws under the old charter by the publication of the new charter, there was room to question what was the rule of law in civil and criminal cases, and how far the common law and what statutes were in force. The council appointed by the charter were to continue until May, 1693, and hence no provision was made for a general assembly in May, 1692. But writs issued immediately on the governor's arrival, and the court met on the 8th day of June in 1692, and an act passed declaring that all laws of the colony of Massachusetts and the colony of New Plymouth not inconsistent with the charter should be in force in the respective colonies to the 10th of November, 1692, except where other provisions should be made by act of assembly; and all justices of the peace, (assistants, like aldermen of London, were ex officio justices under the old charter,) had the same powers given to them in the execution of laws which magistrates used to have.(a) It was proposed that the members of the general court
(a) Hutch. Hist. Mass. vol. ii. pp. 20, 21, 22.
should during the recess consider of such laws as were necessary to be established; for the act reviving the colony laws as has been seen, was to continue in force no longer than until the tenth day of November, 1692.
This was a work of great importance, and required the wisest heads and the purest hearts, and should have been committed to select persons, and devised under a preconcerted plan, the whole of which each person should have kept in view. But such was not the fact, and as is usually the case, the want of this wise foresight has caused the people of the province to experience many inconveniences, for the construction of many laws have been doubtful and varying, it being impossible to reconcile the several parts of their colonial code with each other, or with any general principles of law whatever; besides being framed one after another as they happened to be brought in, and sent to England for allowance. Some were disapproved; others, which depended upon, or had some connection with those which were disapproved, were allowed; whereas if one complete code or system had been prepared and sent to England, such alterations would have been proposed as might finally have issued in a well digested and consistent body of laws; and a temporary provision might have been made until a well digested perpetual rule should have been devised and settled.
§ 59. Seven years had passed, and four different acts had been sent, one after another, to England, for establishing courts of justice, before the royal approbation could be obtained. It seems to have been the practice of the administration there and that practice well enough received in the province) to point out, either in the order disallowing laws, or to the agent who presented them, the particular exceptions, and to propose such alterations as might render them acceptable, except in those cases where the law in all its parts was disapproved.
From the fact that the legislature, under the old charters, was composed of the same men who held seats under the new one, we find the same spirit pervading the new laws which characterized the old. So striking was the similarity in some instances, the same mind must have indited the old as well as the new ones, or the latter was chiefly a transcript from the former. The first act was a sort of magna charta, asserting and setting forth their general privileges, and this clause was among the rest: “No aid tax, tallage, assessment, custom, loan, benevolence, or imposition whatever shall be laid, assessed, imposed, or levied, on any of their majestie's subjects, or their estates, on any pretence whatsoever, but by the act and consent of the governor, council and representatives of the people assembled in general court."
The other parts of the act were copied from magna charta. This was soon disallowed: so was an act punishing capital offenders, amongst whom are ranked idolaters, blasphemers, and incestuous persons; and what the benignity of the common law makes manslaughter, was by this act expressly declared to be wilful murder. This law was framed from the judicial law of Moses. Divers other acts which discovered the same spirit, met with a similar fate. The danger they had been in from Sir Edward Andros calling their title in question, it is supposed, must have occasioned an act for quieting possession, declaring that three years' quiet possession should give a title, with a usual saving clause as to infants, &c. This was probably thought too short a time, and it was disallowed, as was an act for the equal distribution of insolvent estates. The rule of law for paying debts according to their nature and degree was thought preferable, but the people having never been used to this, it would have been very inconvenient; and, upon further trial, the act, or one to the same purpose, was allowed. It was indeed difficult to assign a sufficient reason why not only one set of creditors of a deceased insolvent should be paid their full debts, to the exclusion of all others. Not even an executor or administrator had it in his power to pay himself, to the exclusion of others whose debts were of the same nature.
$ 60. Other acts were passed and approved, among which was one for preventing of frauds and perjuries, conformable to the statutes of Charles II. Others for punishing criminal offences, in many points mitigating the penalties at common law : for the observation of the Lord's day; solemnizing marriages by a minister, or a justice of the peace; settlement and support of ministers and schoolmasters; regulating towns and counties; requiring the oaths appointed, instead of the oaths of allegiance and supremacy; also the oaths of officers; establishing fees; ascertaining the number and regulating the house of representatives; as well as divers other acts of immediate necessity and general utility, which have been in force ever since, except as partially modified, but none of more universal influence than the act for the settlement of the estates of persons dying intestate. In a new country the length of time an estate has been in a family, cannot be urged for the further continuance of it; where improvements in the social condition of society are continually making, the personal estate is continually changing into real, which increases the natural injustice of one child taking the real estate of the parent to the exclusion of the other children: it was, therefore, thought reasonable that the real as well as personal estate of a parent should be equally distributed among his or her children, saving to the eldest son, either from the rules in the law of Moses, or the supposed just claim from primogeniture, a double share. The act was therefore, in general planned upon the statutes of distribution, but gave two shares to the eldest son, and undoubtedly,