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Full text of "The government and laws of New Hampshire before the establishment of the province. 1623-1679"

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CM^^ 



THE 



GOVERN 



AND 




LAVVS«'^<^ 



refr 



OF 



NEAA^ HAMPSHIRE 



BEFORE THE ESTABLISHMENT OF THE PROYINCE. 



A MONOGRAPH CONSTITUTING THE INTRODUCTION TO THE 
FIRST VOLUME OF THE PROVINCE LAWS 



BY ALBERT STILLMAN BATCHELLOR, 

EDITOR OF STATE PAPERS. 



MANOHESTEB. N. H. 

The John B. Clarke Company. 

1904. 



tc 6 tK*'^' lio 



"L w 






COLLE6E 



INTRODUCTORY NOTES. 



The Statute Law as Developed at the Time of the 

Colonization of New England. 

The statutory law of England in its later structure 
commences with the Magna Charta, which King John 
conceded under compulsion at Runnymead in 1215, which 
Henry the Third confirmed in 1225, and which Edward the 
First sealed with the Great Seal of England at Ghent on the 
5th of November, 1297. The authorities generally agree 
at this point. The principles embodied in the first Magna 
Charta were contested during a long period subsequent to 
the date of King John's concession. The confirmations 
which are named as those of Henrv the Third and Edward 
the First wei'e not the only ones that were required and ob- 
tained before the Great Charter was universally recognized 
in the form and terms in which it became permanent. As a 
parliamentary act Magna Charta takes date as of 25 Edward 
the First, A. D. 1297.^ The text of the Magna Charta of 
John, 1215, is represented in facsimile in the Statutes of the 
Realm, as also are other and later drafts of the instrument.^* 
These charters take their place within what is called the 
"time of legal memory." That term is employed as descrip- 
tive of the period in and since the reign of Richard the First, 
1189-1199. There is very little extant in authentic form that 
is assignable to the first part of this so-called "time of legal 
memory,'' except the charter of John and the other great 
charters, with possibly a few isolated statutes. As to these 
it may be said on the authority of Sir Matthew Hale^ that 
there was great confusion until in Magna Charta of Henry the 
Third, 1225, they obtained a full settlement, and the sub- 
stance of them was solemnly enacted by parliament. Impor- 
tant changes transpired from time to time in the text of the 
Great Charter. Repeatedly the confirmations were compul- 
sory.^ That there had been more than thirty of these con- 
firmations of Magna Charta before the time of Henry the 

^statutes of the Realm, ed. 1810, vol. 1, p. 114. 

'Statutes of the Realm, ed. of 1810, pp. 6, 22, et seq. 

■Sir Matthew Hale, History of the Common Law, ed. 1794, p. 5, quoted in 
Finlason's Reeve, vol. 1, p. 1, note B. 

*Pollock and Maitland, vol. 1, p. 157. 



4 NEW HAMPSmRB PROVINCE LAWS. • 

Fifth, 1413, is an indication of the practical insecurity of 
the rights conceded by the terms of the instrument.^ The 
charter takes its place as the first chapter of the enacted 
law.2 "The first set of laws," remark the authors of the History 
of English Law before the Time of Edward the First, "which 
in later days usually bears the name of ^statute,' is the Pro- 
visions of Merton issued by the king, with the consent of the 
prelates and nobles, in 1236." From the reign of Henry the 
Third, 1216-1272, no statute roll nor any rolls of parliament 
are preserved, and it is not supposed that any such records 
were kept. The earliest statute roll now extant began with 
the Statute of Gloucester in 1278. The first Parliament 
Roll comes from 1290.^ From the time of the confirmation 
of Magna Charta, 9 Henry the Third, 1225, to the time of Ed- 
ward the Third, 1327, a considerable number of acts of par- 
liament are preserved, but it is from the latter reign that the 
statutes exist in a regular series to the present.^ 

The system of statutory law which had been embodied in 
acts of parliament actually enrolled and accessible at the 
time of the first planting of English colonies in New England 
was not of remarkable antiquity. From 460 B. C, the date 
to which the enactment of the Twelve Tables is assigned, 
nearly a thousand years had elapsed before Justinian, in 534 
A. D., had consolidated the body of the Roman law into the 
Institutes, Pandects, and Code. From the beginning of the 
permanent occupation of Britain by the Romans to the 
Magna Charta of Henry the Third was a period of almost 
twelve hundred years. The Roman law was administered 
to a certain extent in England from about A. D. 50 to about 
A. D. 450.^ Through the operation, centuries later, of en- 
tirely different influences, the Roman law, as it survived 
in the forms and principles of the civil and canon law subse- 
quent to the Norman conquest, was brought into contact 
with the government and affairs of the people of England. 
It is not now open to question that the influence of Roman 
laws was productive of important results upon legal usages, 
procedure, and case law. In the then existing environment 
it would be inevitable that the learning of those who were 
masters of the Roman law would be manifest in the lex 
smipta, as the statutes took form in the early stages of their 
development into a permanent system.® The Saxon suprem- 

^Huine, History of England, vol. 2, 268; Bouvier, Law Dictionary, 14tli ed., 
Tol. 2, p. 87. 

"Pollock and Maitland, vol. 1, p. 157; 9 Hen. 3, c. 29, in Ruffhead. 

»/d., vol. 1, pp. 158, 159. 

*Finlason's Reeve, ed. 1869, vol. 1, p. 1. 

•Finlason*s Reeve, vol. 1, pp. xxxix, 3, Note B; Amos, Science of Law, p. 
380; lladley. Introduction to Roman Law, 18. 

•Pollock and Maitland, History of English Law before the Time of 
Edward I, vol. 1, chap. 4; Finlason, Introduction to Reeve's History of Eng- 
lish Law, ed. 1809, vol. 1, p. Ixxxix; Amos, Science of Law, pp. 9, 10. 



SOURCES AND ANTEGBDENT8. 5 

acy was the occasion for the institution of other laws 
and the evolution of other customs, which in their order en- 
tered into the foundation upon which, in a later period, a 
permanent system was. established.^ The Norman conquest 
also introduced other controlling factors distinct from both 
the Roman and Saxon law, related to the establishment and 
development of legal institutions and of positive law. All 
these laws, whether institutions, codes, charters, royal edicts, 
or customs, which are assignable to any time prior to the 
reign of Richard the First, and whether of aboriginal Britton- 
ish, Roman, Saxon, Danish, or Norman origin, are, however, 
according to Sir Matthew Hale, accounted lex nmi scripta. It 
may be noted that the parliament assembled by Leicester in 
1265 was the one to which both the knights of the shire and 
the representatives of the boroughs were summoned. This is 
regarded as the first meeting of the Houses of Commons.^ 
While it is conceded that the beginning of a continuous series 
of recorded (manuscript) parliamentary laws is assignable to 
the reign of Edward the Third, 1327-1377, it was not until 
near the close of the reign of Edward the Fourth, 1483, that 
the invention of printing, in connection with practical busi- 
ness uses, was introduced into England. The permanent and 
successful establishment of mills in England for the manu- 
facture of paper is of about the same date as the introduction 
of printing as a trade, that is, in the latter part of the fif- 
teenth century, although it had previously been prosecuted on 
the continent during an indefinite period. The first book 
<!ertainly known to have been printed in England bears the 
date 1477. Among the considerable number produced in the 
next fifteen years was a volume containing the laws of Rich- 
ard the Third, 1483-1485,^ printed in French, besides several 
other volumes of statutes or compilations both of earlier and 
later date than those of Richard the Third.* The publication 
of the laws of England in printed books, therefore, was ante- 
rior to the planting of the English colonies of New England 
by less than one hundred and fifty years. Even after 1327, 
the date which is regarded as marking the beginning of a 
regular series of English parliamentary statutes, there was 
much which stood in the way of a general diffusion of knowl- 
edge as to the provisions of that body of law. The acts were 
engrossed in Latin or French until the time of Henry the 

^Thorpe's Ancient Laws and Institutions of England from ^thelberht to 
Cnut with English Translations, etc., 2 vols., Public Records Commission, 
1840. 

*Stubbs, Constitutional History of England, vol. 2, 4th ed., sec. 177, p. 96; 
Hume's History of England, vol. 2, p. 53. 

•Eneyc. Brit., vol. 8, p. 413; De Vinne, Invention of Printing, 508. 

*Statutes of the Realm, ed. of 1810, Catalogue of Printed Collectipns, etc., 
constituting Appendix A to the Introduction to that work. The same cata- 
logue is reproduced in this volume, post, pp. 726 et seq., and is designated as 
Appendix A, II. 



6 NSW HAMPSHIRE PIIOVINCB LAWS. 

Seventh, 1485. Pollock and Maitland give a succinct ac- 
count of the conflict which continued in England for centu- 
ries between the Latin, French, and English languages, re- 
sulting in the transition from French to English statutes that 
occurred suddenly at the accession of Richard the Third, and 
which seems to be contemporaneous with a change in the 
method of enrollment. To the very last, 1503, in the time 
of Henry the Seventh, the formal parts of the Roll are writ- 
ten either in French or in Latin.^ 

The first compilation of the charters and statutes which 
appeared in print in an adequate English version was that of 
1579,2 which is known as RastalPs Collection. It is the first 
one which contains the statutes previous to Henry the 
Seventh, 1485, translated into English. The production of 
this work and its successive revisions down to 1621 may well 
be regarded as marking an epoch in the history of the leaf 
scripta. The statutes in this publication are arranged under 
apt titles, and the new statutes from time to time were added. 
"The translation contained in this collection api>ears to have 
been executed with superior care and industry."^ It will be 
observed that only forty-two years intervened between the 
first and last editions of the English version of RastalPs 
work. In the very last part of that period the planting of 
Plymouth colony was effected.* 

"By far the greatest portions of the written or statute laws 
of England," says Sir James Palgrave, "consist of the declar- 
ation, the reassertion, repetition, or the re-enactment of some 
older law or laws, either customary or written, with additions 
or modifications. The new building has been raised upon 
the old ground-work : the institutions of one age have always 
been modeled and formed from those of the preceding, and 
their lineal descent has never been interrupted or disturbed."*^ 

^Pollock and Maitland, vol. 1, pp. 58-65. 

*An edition of the charters and several of the statutes bearing date pre- 
vious to Edward the Third, was published in book form in an English trans- 
lation from the Latin in 1534. In this edition .the laws were not arranged 
chrcrolcgically nor by title. 

"Statutes of thei Realm, vol. 1, p. xxii. See also reprints in this volume, 
post, constituting Appendix A, I, and Appendix A, II. 

*The present generation is now separated from the period in which the 
Pilgrim Fathers were living by about two hundred years, and from their 
immigration by about two hundred and eighty years. Mary Allerton, the last 
survivor of the Mayflower immigrants, daughter of Isaac Allerton, and wife 
of Elder Thomas Cushman, died in 1699. Appleton's Encyc. of Biog., vol. 
2, p. 43. Hon. Alfred Russell, in an essay in the Michigan Presbyterian for 
April 16, 1903, remarks that his eminent friend, Sidney Bartlett, of the Bos- 
ton bar, recently deceased at a great age, in his youth, at his birthplace, Ply- 
mouth, Mass., conversed with those who in their youth had conversed with 
those who were Pilgrims on the Mayflower. Mr. Bartlett was born Febru- 
ary 13, 1799, and died March 6, 1889. 

"Sir James Palgrave, English Commonwealth, 1, 6. 



80URGBS AND ANTECBDBNT8. 7 

Colonial Beginnings in New England. 

The situation of the New England colonies was, at the out- 
set, in many respects anomalous. This was peculiarly the 
case regarding the laws by which they would be governed in 
the new country in which they had become established. As 
indicated in the historical outline already presented, the laws 
of England had assumed a status in which they could be 
obtained in books, and the text understood by the average 
man of affairs in the earliest colonial period. There were, 
however, important and, in some directions, impassible limi- 
tations on the applicability of the laws of England to the new 
conditions existing and constantly arising in New England. 
The reason underlying much of the statute law of the mother 
country did not exist in the American colonies. Ratio legis 
cessaty cessat lex. The ideas of the colonists with reference to 
the functions of the state and the rights of the individual were 
radically different from those entertained in the home gov- 
ernment and reflected in the statute law of the realm as it 
stood in 1620. The wide divergence between the views of 
the New England immigrants and the representatives both of 
church and state, who were in control of affairs in England 
with reference to ecclesiastical concerns and the relations of 
church and state, were fundamental and irreconcilable. Ne- 
cessarily, also, the principles and methods of ownership, occu- 
pancy, and control of lands, forests, and waters in the new 
country, which ancient systems and modem statutes had 
established in the mother country, were, in important features, 
inapplicable in the new country; and radical changes in sys- 
tems of law relating to inheritances, ownership, occupation, 
and transfer of rights in real estate were inevitable.^ 

^Mr. G. T. Bispham, in an article entitled "Law in America, 1776-1876," 
North American Review, vol. 122, 1876, p. 156, says: 

"On the other hand, a still more striking and interesting topic is the con- 
sideration of the departures of American law from English principles; and 
the cases here presented would be those in which, from circumstances which 
it ought to be the task of the student to discover and explain, American 
jurisprudence has found the rules of English law unsuited to the conditions 
of American life, has therefore repudiated or modified them, and has estab- 
lished a set of legal rules which may be termed essentially and properly 
American. This latter view of the general subject is one which would, with 
the greatest propriety, be considered the most interesting and instructive at 
this period of the national existence, when we are occupied in looking for, 
pointing out, and discussing those features in the different relations of life 
which are often grouped together under the somewhat vague term of Amer- 
ican institutions. Both methods, however, of dealing with the general sub- 
ject will have to be, to a certain extent, adopted; and in endeavoring to JB.nd 
out what are the peculiarities of American law which have grown up or 
sprung up since our separation from the mother country, and which tend to 
give our jurisprudence a national individuality, we shall be compelled to 
touch upon some points in which the American has advanced beyond, or 
fallen behind, English law in paths which are common to both. 

"It is a trite remark, and one which has been made at many different times 
and with varying phraseology, that all law is the adaptation of principles 
of action to the physical and political conditions of a country, and to its 



S NBW HAMPSHIBB PBOVINCB LAWS. 

The C5ouncil for New England (Plymouth Company), as con- 
stituted in 1620, was made independent of the London Com- 
pany, with which it had formerly been in co-operation. This 
Council for New England was empowered by its charter to 
legislate for the new colonies to be established under its 
auspices in America. It could exercise martial law and 
maintain a monopoly of trade within the limits of its patent. 
The Mayflower company, which effected its New England set- 
tlement in 1620, declared a purpose and asserted the right in 
the now famous compact of November 11, 1620, to "enact, 
constitute, and frame such just and equal laws, ordinances, 
acts, constitutions, and officers, from time to time, as shall 
be thought most meet and convenient for the general good of 
the colony; unto which we promise all due submission and 

moral, social, and intellectual growth. All national institutions must bear 
the impress of the outward features of nature by which the inhabitants are 
surrounded, and their modes of life, to a gfreat extent, determined, and must 
also reflect the inward life of a nation and the external associations and in- 
ternal consciousness by which that inward life has been moulded. 

"If we were to imagine a man placed, in a savage state, in a new country, 
and were at liberty to suppose that his individual existence could be suffi- 
ciently prolonged to enable him to reach, in his own person, a condition of 
civilization and enlightenment, it would seem to be plain that the causes 
which control this development and determine its character must be sought 
for, in the first place, in the external physical phenomena by which he was 
surrounded." 

See also Doe, C. J., in Thompson v, Androscoggin Co., 54 N. H., 548; Concord 
Mfg. Co. V. Robertson et ah, 66 N. H. Eeports, pp. 1-30. 

The Sources of New Hampshire Law by William Smith, 1, Proceedings of 
the New Hampshire Bar Association, p. 682. 

Judge Parker (Lecture at Lowell Institute, 1869, cited below) also eomments 
on the latitude for legislation which the local conditions in the new country 
necessarily afforded, and the not altogether obsolete question as to whether 
the laws of the mother country accompanied the exercise of her sovereignty 
in her American possessions in the early colonial period without special par- 
liamentary legislation to that end. He says: 

"But there was a restriction upon their legislation, religious as well as civil. 
They were to make no laws contrary to the laws of the realm; and the ques- 
tion arises. What was the character and what the extent of this restraint? 

"We may safely conclude that the meaning of the provision is not that they 
are to make no laws different from the common law of England, for much 
of that law was entirely inapplicable to their condition, so that they were 
under the necessity of making different laws. Laws different from or con- 
trary to the laws of feudal tenure could not come within the prohibition. The 
same may be said of laws relating to the peerage, and divers other matters 
of more common concern. 

"So we may be assured that it was not a prohibition to make laws different 
from the statutes of England, for it was known that it was to escape from 
some of those laws that they emigrated. If they could make no law which 
provided for a different form of worship than that which was established in 
England, — if they must establish that with all its concomitants, they would 
hardly have crossed the Atlantic for the privilege of voluntarily subjugating 
themselves by their own acts, to the pains and penalties, and violation of 
conscience, to which the acts of others would have subjected them if they 
had remained. Moreover, they had no bishops, — could not consecrate any, — 
and no one proposed to do that for them when the charter was granted. 
Laud would doubtless have been pleased to do them that favor three or four 
years afterwards; but their right of legislation, or the restraints upon it, or 
the removal of restraints, did not depend upon that. 



SOURCES AND ANTECEDENTS. ^ 

■ * 

obedience." The territorial patent from the C5ouneil for New 
England to Plymouth Colony in America was issued in 1621.^ 
The colony charter was not obtained until January, 1630. 
This later grant was from the Council for New England. It 
purported to invest the Colony of Plymouth in New England 
with the law-making power. On this point the following 
terms are employed : 

"Alsoe it shall be lawfull and free for the said William 
Bradford his associats his heires and assignes att all tymes 
hereafter to incorporate by some usuall or fitt name and title, 
him or themselves or the people there inhabitinge under 
him or them with liberty to them and their successors from 
tyme to tyme to frame, and make orders ordinances and con- 
stituc'ons as well for the better govemmente of their affairs 
here and the receavinge or admittange any to his or their 
society, as alsoe for the better governm't of his or their peo- 
ple and affaires in New Englande or of his and their people att 
sea in goeing thither, or returninge from thence, and the same 
to putt in execuc'on or cause to be putt in execuc'on by such 
officers and ministers as he and they shall authorise and de- 
pute: Provided that the said lawes and orders be not repug- 
nante to the lawes of Englande, or the frame of govemmente 

by the said presidente and councell hereafter to be estab- 
lished.''2 

"The true construction of the clause is that they shall make no laws con- 
trary to, — antagonistic to, — in contravention of, the laws of the realm which 
extended or should extend over them, as inhabitants of the colony, and 
which were to be their paramount law. 

"We are thus brought to the question whether any and what laws of the 
realm were in force in the colony at the time of the charter and emigration. 
Happily we can settle this question by authority. It is agreed that the law of 
the conqueror does not extend over the conquered country until the conqueror 
pleases to put it in force there. And although we now hold that the title 
of the crown to the greater portion of this country was by right of discovery, 
it was held by the courts of England, long subsequent to the reign of Charles 
I, to be a title by conquest. Chief Justice Holt, in the Court of King's Bench, 
in the 4th of Anne, said; *The laws of England do not extend to Virginia, 
being a conquered country, their law is what the King pleases.'* And Black- 
stone, lecturing as late as 1756, says, *Our American plantations are princi- 
pally of this latter sort [conquered or ceded countries], being obtained in 
the last century, either by right of conquest, and driving out the natives 
(with what natural justice I shall not at present inquire), or by treaties. 
And, therefore, the common law of England, as such, has no allowance or 
authority there.' He adds that they are *not bound by any acts of Parlia- 
ment, unless particularly named.' "f Lowell Inst. Lecture, pamphlet ed., 
p. 31. 

•Salkeld's Reports, vol. i, [ii] p. 666. 
tBlackstone'8 Ck)m., vol. 1, p. 106. 



^Bradford, Bradford History, p. 167. 

'Plymouth Colony Laws, ed. 1836, pp. 24, 25. The grant of a law-making 
power which appears in the charter of 1630 was foreshadowed in the patent 
of 1621 to Peirce and others. Baylies, Memoir of Plymouth Colony, vol. 1, 
part 1, pp. 185 ct seq., edition of 1866, edited by Samuel G. Drake. This his- 
tory was first published in 1830, before the recovery of the Bradford manu- 
script, but is an excellent authority; full text of the patent of 1621, with 



10 NBW HAMPSHIRE PROVINGB LAWS. 

Without pausing here to consider the mooted question 
whether the Council for New England was vested with au- 
thority by its own charter to endow one of its colonial 
creations with the law-making power,^ it is sufficient to re- 
mark that the charter of Plymouth CJolony of 1629-30 did con- 
tain an apparent delegation of such powers. The practical 
construction of the grant, by the colonists, was in favor of the 
validity of this particular concession.^ Perhaps it cannot be 
said, however, that these colonists did not exercise the law- 
making power, in the ordinary sense of the term, prior to the 
charter of 1629 [O. S.]. Mr. Brigham remarks^ in his preface 
to the Plymouth Colony Laws, first published by the common- 
wealth under his supervision in 1836, that "The first revision 
of the laws was in 1636, and this may be regarded the first im- 
portant era in their history, or perhaps, with more propriety, 
the origin of the legislation of the colony. Previous to this 
period there had been but few laws made and still fewer com- 
mitted to record." 

The code of 1636 was the work of the court, aided by eight 
deputies chosen for this special purpose. But later, in 1636, 
the functions of the general court were divided. For legisla- 
tion the whole body of freemen were to attend, but proxies 
were allowed for the election of governor and assistants. In 
1638 the representative system was fully introduced, 
although the general court formally reserved the right of re- 
vising or repealing the acts of the deputies.^ Previous to 
this, 1635, the Council for New England had been dissolved. 
The members of the company had proved themselves totally 
unable to appreciate the extent of the enterprise in which they 
were engaged, and, furthermore, the surrender of a charter 
that was proving such a source of strength to the Puritans 
was undoubtedly most acceptable to Charles the First. 

introduction by Charles Deane, Mass. Hist. Soc. CoU., 4th Series, vol. 2, pp. 
156-163. 

The text of the patent of 1621, so far as it relates to the law-making 
power, is as follows: 

"And shall also at any tyme within the said term of Seaven Yeers upon 
request unto the said President and Counsell made, graunt unto them the said 
John Peirce . . . Letters & Graunt of Incorporac'on by some usuall & fitt 
name & tytle with Liberty to them and their successors from tyme to make 
orders Lawes Ordynaunce & Constituc'ons for the rule governement ordering 
& dyrecting of all ^sons to be transported & settled upon the land . . . And 
in the meane tyme untill such graunt made, Yt shall be lawfull for the said 
John Peirce ... by the consent of the greater ^t of them To establish such 
Lawes & ordynaunce as are for their better governm't and the same by such 
Officer or Officers as they shall by most voyces elect <fe choose to put in execu- 
c'on. Mass. His. Soc. Col., Fourth Series, vol. 2, p. 161. 

^Quint^ Historical Memoranda of Ancient Dover, p. 423. 

*Mr. Brigham's Text, Plymouth Colony Laws. 

'Doyle, English Colonies in America, vol. 2, pp. 71, 72. 



80URCRS AND ANTSCBDENTS. 11 

On the 19th of March, 1627-8, a grant of land was obtained 
from the Council for New England by John Endicott and 
five other gentlemen, extending from three miles south of the 
river Charles to three miles north of the Merrimack, and west- 
ward to the Pacific ocean. 

Mr. Doyle, the author of "English Colonies in America," 
vol. 2, pp. 88, 90, commenting on the events transpiring at this 
time, says: 

"Of the six grantees, two only, Humphrey and Endicott, play 
any part in later New England history. The former had 
already been treasurer of the fishing company at Cape Ann, 
and he subsequently held office under the Massachusetts com- 
pany both in England and in the colony itself.^ John Endi- 
cott at once took a prominent place in the new undertaking, 
and to the end of his life he stood in the foremost ranks of 
New England statesmen, figuring in every stage as the em- 
bodiment of all that was narrowest and sternest in Puri- 
tanism. 

"For the present this grant did no more than establish a 
private partnership. The partners might entertain and ac- 
knowledge among themselves political designs, but in the 
eyes of the world there was nothing to distinguish their 
scheme from those of Gorges or Mason. 

"Meanwhile the partners in England were taking steps to 
strengthen their legal position. The six original patentees 
admitted more persons into their partnership. This change 
was accompanied by one still more serious. The promoters of 
the colony were no longer content to be a mere private com- 
pany for trade. The authority of the crown was to be called 
in to make good any flaw which might exist in their territorial 
title. In March, 1629-30, a royal charter was obtained, consti- 
tuting a legal corporation, under the title of the Governor and 
Company of the Massachusetts Bay in New England.^ 

"This corporation was to elect annually a governor, a dep- 
uty governor, and eighteen assistants, who were to hold 
monthly meetings. 

"The appointment of eighteen assistants shows that the 
company was to be enlarged considerably beyond its present 
numbers. General meetings were to be held four times a 
year. The members had power to elect necessary officers, and 
to defend their own territory by force against invasion or 
attack. The governor and assistants might, if they thought 
fit, administer the oaths of allegiance and supremacy to mem- 
bers of the company. It is not unlikely that this clause may 
have been inserted to meet the difficulty which had lately 
arisen in the case of Lord Baltimore, owing to the absence of 
any such provision in the Virginia charter.^ 

*Mr. Haven in Arch. Am., vol. 3, p. 50. 

*The charter is in the Colonial Papers. It is also given in Hazard's Collec- 
tion, vol. 1, p. 239; Poore, Charters and Const., 2d ed., pt. 1, p. 932. 

■Doyle, English Colonies in America, vol. 1, Virginia, etc., p. 277. 



12 NSW HAMPSHIRE PROVINCB LAWS. 

"In anticipation of a future want the grantees resisted the 
insertion of any condition which should fix the government of 
the company in England. Winthrop explicitly states that the 
advisers of the crown had originally imposed such a condi- 
tion, but that the patentees succeeded, not without difficulty, 
in freeing themselves from it.^ That fact is a full answer to 
those who held that in transferring the government to Amer- 
ica the patentees broke faith with the crown."^ 

The charter of 1629-30 provided also for the admission of 
new freemen by a majority vote of the company, for the annual 
election of officers by the whole body of freemen, and for four 
great and general courts each year, to be held by the governor 
or deputy-governor and seven or more of the assistants for the 
time being.® 

The great and general court was granted the right "to 
make laws and ordinances for the good and welfare of the 
said company, and for the government and ordering of the 
said lands and plantation, and the people inhabiting and to 
inhabit the same, as to tliem from time to time shall be 
thought meet, so as such laws and ordinances be not con- 
trary or repugnant to the laws and statutes of this our Realm 
of England."^ 

For a time the powers of the great and general court were 
allowed to lie dormant. At the first session, October 19, 1630, 
it was ordered "by the general vote of the people and 
the erection of hands" that the governor and deputy- 
governor, with the assistants^ "should have the power of 
making laws and choosing officers to execute the same." It 
was further decided in May, 1631, that the assistants need 
not be chosen afresh each year. But by 1634 the freemen, 
aroused perhaps by the protests of inhabitants of Watertown 
against taxation without representation, had come to feel 
that they ought to participate in some effectual way in the 
making of all the laws; and at the meeting of the general 
court May 13, 1634, there were present, besides the governor, 
deputy-governor, and six other assistants, twenty-four dep- 
uties, three from each of the eight towns of the colony.*^ This 
first representative assembly voted that the deputies should 

*This is stated by Winthrop in a pamphlet written in 1644, and published 
in an appendix to his life, vol. 2, p. 443. 

^The most noteworthy upholder of this view is the lat^ Mr. Oliver, in that 
remarkable book. The Puritan Commonwealth, published in 1856. Mr. Oliver 
was a Boston lawyer and a zealous churchman. Provoked by the extravagant 
and unreasonable praise so often bestowed on the founders of Massachusetts, 
he has subjected their actions to a merciless scrutiny, always acute, and 
sometimes just, but more often carried out in the spirit of a party advocate. 
His work is of no small value to the student of New England history as the 
pleading of an dd/oocatus diaboli, and as a counter against the too frequent 
adulations of American writers. 

■Poore, Charters and Constitutions, 2d ed., part 2, pp. 932-942. 
*Poore, Charters and Constitutions, 2d ed., part 1, p. 937. 
■See Winthrop's History of New England, ed. by Savage, vol. 1, pp. 152, 153, 
and note; Hutchinson, History of Massachusetts, 3d ed., vol. 1, pp. 39, 40. 



SOURCES AND ANTECEDENTS. 13 

have all legislative powers of the freemen, "the matter of elec- 
tion of magistrates and other officers only excepted, wherein 
every freeman is to give his own voice." From this time 
the records of the general court show that this body of dep- 
uties exercised its powers vigorously and extensively. At 
first the deputies were elected for each general court; from 
1639 to 1640 they w^ere elected semi-annually, and after 1642 
annually. The deputies did not sit as a separate house until 
1644, when they were formed into a second chamber as a 
direct result of the trouble over the Widow Sherman's pig.^ 

As early as 1634 settlers from Plymouth established a mil- 
itarj' post on the Connecticut as an outi>ost against the 
Dutch. Soon after, disaffected inhabitants of Massachusetts 
Bay formed settlements at Windsor, Hartford, and Wethers- 
field. The freemen of these towns, assembled at Hartford on 
the 14th of January, 1639, adopted a written constitution. 
It is worthy of note that this document contains none of the 
conventional references to a "dread sovereign" or a "gracious 
king," nor the slightest allusion to the British or any other 
government outside of Connecticut itself, nor does it pre- 
scribe any condition of church membership for the righ!t of 
suffrage. It is regarded by writers of excellent authority as 
the first written constitution by which a government was cre- 
ated that is known to history.^ Although Massachusetts 
Bay had previously governed these Connecticut towns by a 
commission appointed for thait purpose, she now at least 
tacitly recognized their right to an .independent government. 

Up to 1640 the settlers of Providence seem to have lived 
under little or no government. In 1638 there was an attempt 
to establish a sort of church organization. In 1640, trouble 
having arisen with the Inhabitants of Patuxet, something: in 
the nature of a constitution was formulated; four arbitrators 
were appointed to settle differences existing in the colony; 
and provision was made for five selectmen, to be chosen by 
the whole body of freemen, to dispose of the lands, to conduct 
public affairs, and to admit new members.^ It is not clear 
just how this form of government worked; but certain it is 
that Providence was generally considered, from the Puritan 
point of view, a "hotbed of anarchy," and in 1644 was refused 
admission to the New England confederacy for the alleged 
reason that it had no organized government. 

The province of Maine had been granted to Gorges and 
Mason as a part of the gran t of 1622, and also as a part of the 

^See valuable introductions to Whitmore's Colonial Laws of Mass., ed. 1889; 
Piske, Beginnings of New England, pp. 105-108; Savage's Winthrop's Hist, of 
New England, p. 193. 

*Fiske, Beginnings of New England, p. 127. Similar clainis are asserted in 
. behalf of the New Hampshire constitution of 1776. Consider also in this 
connection the relations of the several earlier colonial charters as instru- 
mentalities in the establishment of governments. 

f 'Doyle, Eng. Col. in Am., vol. 2, pp. 180-184. 



14 NBW HAMPSHIRE PROVINCB LAWS. 

Laconia patent of 1629. It had been mutually understood 
that Mason was to hold the land west of the Paseataqua river, 
and Gorges the territory lying east of that river. At the dis- 
solution of the Council for New England in 1635, and the re- 
sulting division of the territory, this previous understanding 
between Mason and Gorges was confirmed. There had been 
a few scattered fishing settlements along the Maine coast 
since 1623, but little or no attempt at an organized govern- 
ment. This province was confirmed to Gorges by a charter 
from Charles the First in 1639, by which he was given absolute 
right to establish such government for the province as seemed 
best to him.^ In 1640 Gorges attempted to erect a govern- 
ment which appears to have been somewhat of the nature of 
a palatinate. It was the development of theories based on Old 
World models, exceedingly complex, and in no practical sense 
adapted to or workable in the conditions existing in a state, 
such as the district or province of Maine was at the time, or 
was destined to be in its future progress. Previous to the 
time of the union of the New Hampshire towns with Massa- 
chusetts Bay in 1641 there was no form of government in 
practical operation in the province of Maine except the orders 
emanating from the proprietors in general administration, 
and such local municipal governments as the necessities of 
the situation had compelled in the towns of Kittery, York, 
and a few other trading and fishing settlements.^ 

New Hampshire in the First Period, 1623-1641, and the 
Development of Local Self-Government in the 
Pour Towns. 

The essential differences existing between the towns 
of New Hampshire and the towns of Maine on the 
one hand, and those of Plymouth Colony and Massachu- 
setts Bay on the other, arose from the presence and 
prominence of landed proprietors, actively seeking to control 
the planting of settlements and the constitution of govern- 
ments for them in the territory north of the Merrimack, and 
the absence of such interference and such superior personal 
proprietorship in the two Massachusetts colonies. In the 
latter "the court," described in the charters, very shortly be- 
came a legislature; the magistrates or assistants became a 
branch of the legislature; while the house of deputies was 
an evolution in or an engraftment upon the system which, so 
far as the terms of the instruments indicate the intention of 
the English Company of Plymouth, was possibly never contem- 
plated by the grantor. The fact that the towns of Maine and 
New Hampshire did not federalize themselves, and did not at- 
tempt the constitution of legislative bodies such as were 

^Poore, Charters and Constitutions, 2d ed.Jpart 1, pp. 774-783. 

"^Doyle, Eng". Col. in Am., vol. 2, pp. 216-218; Palfrey, History of New Eng- 
land, vol. 1, pp. 524-528. 



SOURCES AND ANTECEDENTS. 15 

evolved in the other New England colonies, was doubtless 
attributable to the obsftacles that existed in the proprietor- 
ship of Mason and Gorges. Furthermore, there was among 
the early inhabitants of Portsmouth and Dover no such mo- 
tive for strenuous exercise and advancement of the theories 
of self-government as were prevalent in the Plymouth and 
Bay colonies. The Pascataqua plants were business ven- 
tures. They were under the immediate direction of factors 
or superintendents commissioned by the territorial propri- 
etor. In the first years of the history of Portsmouth and 
Dover the municipal law must be sought in the patents under 
which the proprietors had title and exercised dominion — in 
the few extant written records of the proceedings of the mer- 
chant adventurers, — ^and in the necessity for some enforceable 
rules of conduct, presumably devised with normal reference 
to the contemporary statutes of the realm of England 
and the common law of the mother country, and 
with adaptation to the physical, social, and industrial 
conditions of the locality.^ At this time the term 
"New Hampshire" was unknown, and was not applied to this 
domain until the grant of November 7, 1629. The grant of 
Mariana^ to John Mason of March 9, 1621, in respect to the 
description of the territory to be included in it, is somewhat 
ambiguous; but the grant of the territory of Maine, of date 
August 10, 1622, contained descriptions sufficiently explicit 
for the conveyance of the lands lying "betwixt the rivers of 
Merrimack and Sagadahock,"^ etc. Under a patent signed by 
the Council for New England on the 16th of November, 1622,* 
David Thomson was granted six thousand acres of land and 
one island in New England. There is nothing extant to show 
where in New England this grant of land and the island were 
located, but there is evidence of an earlier patent to David 
Thomsoni et als "for a pt of Piscatftowa River in New Eng- 
land.''^ This would seem to indicate that he had had this 
particular section in mind. Thomson conveyed one fourth 
part of the island to three merchants of Plymouth,® and 
agreed to convey in fee simple the fourth part of the six 
thousand acres. Therefore, on the face of the papers, it was 
as representing himself and the three merchants, and not as 

^25 State Papers, 780, et seq., monograph by Joel Parker on "The Origin, 
Organization, and Influence of the Towns of New England"; Dillon, Munici- 
pal Corporations, vol. 1, ch. 1, §§ 9, 10; 24 State Papers, editor's preface; The 
Origi'n of Municipal Incorporation in England and the U. S., by Amasa M. 
Eaton, Proceedings of the American Bar Association, 1902, pp. 292-372. 

''Charles Levi Woodbury, Capt. John Mason's Patent of Mariana, in Capt. 
John Mason, pub. Prince Society, pp. 45-52. 

^29 State Papers, 23-28. 

*25 state Papers, 716. 

•^25 state Papers, 720. 

•id., 735-6. See article by Chas. Deane, "The Indenture of David Thomp- 
son," pp. 713-739. 



16 NEW HAMPSHIRE PROVINCE LAWS. 

the representative of John Mason or the Laconia company, 
as Belknap^ has it, that David Thomson, a Scotchman, came 
to the banks of the Pascataqua in the spring of 1623, and 
there established a permanent settlement vrithin the present 
bounds of New Hampshire.^ He probably remained there 
until 1626, when he took possession of an island in Massa- 
chusetts Bay which was afterwards confirmed to his heirs by 
the general court. 

What property or business connections Thomson had, if 
any, with Mason and Gorges does not certainly appear at this 
time, and it is not clear what the evidence was upon which 
Dr. Belknap relied in asserting that his relations were 
with these parties in his operations at Pascataqua. The 
grant to the Laconia company did not exist until after the 
death of Thomson. His removal from these premises in 1626, 
after three years' occupancy, and the subsequent occupation 
of them by Slason and his associates in the Laconia company, 
might, perhaps, suggest an inference that there was a conflict 
in which the title set up by Mason prevailed. It should be 
noted that Mr. Jenness remarks that "the Laconians hired 
the buildings which had been put up seven years before by 
David Thomson at the smaller mouth of the Piseataqua, and 
established there, under command of Capt. Walter Neale, a 
factory, or entrepot, as a basis for their magnificent design 
upon the New York lakes. "^ 

It is not pertinent to the purpose of this article to intervene 
in the controversy between those who, with Dr. Quint, would 
set the planting of the colony at Dover Neck, at a date about 
the same as that of Thomson at Odiorne's point, and those 
who, with Mr. Jenness, place the Dover settlement five years 
later, in 1628.^ 

On November 7, 1629, the Council for New England 
granted to John Mason a part of the same territory that had 
been included in the Mason and Gorges patent of August 10, 
1622, namely, from the middle of the Merrimack river to the 
Pascataqua; and ten days later to Gorges and Mason, with 
such others as they should admit, under the name of the 
Province of Laconia, the land west and northwest of the 
New Hampshire grant, on the borders of the Iroquois lake 
(Lake Champlain).*^ 

The Laconia company was formed immediately after the 
failure of the Canada company, with the object of gaining a 
part of the profitable trade with the Indians about the Iro- 

^Belknap, Farmer's ed., p. 4. 

-See Appendix, post, pp. 770-772. 

*John S. Jenness, Notes on the First Planting of New Hampshire, 25 State 
Papers, 661-709. 

*25 State Papers, 661-709; Quint, Historical Memoranda of Ancient Dover, 
pp. 16, et seq,; Tuttle, Hist. Papers, p. 178 and note; same, this volume, p. 773. 
^^29 Slate Papers, 28-38. 



SOURCES AND ANTBCEDEKTS, 



17 



quois Lake, which was supposed to be near to or, indeed, to 
form the source of the Pascataqua river. Oapt. Walter 
Neale was put in command of an expedition sent in quest of 
the Iroquois country, and in the baxk Warwick landed at 
Pascataqua in June, 1630. But the venture was a failure. 
"The Laconia company simply established two or three trad- 
ing posts on the river and at the Shoals, after the manner of 
the East India factories, and for a short time carried on the 
peltry traffic and the fisheries at a heavy loss, until, at the end 
of three years, in bankruptcy and disaster, the company dis- 
solved and vanished away."^ 

On March 12, 1630, the Council for New England granted to 
Edward Hilton and his associates, who had previously laid 
the foundation for a successful settlement on Hilton's Point, 
a tract of land three miles wide, south of the Pascataqua and 
up to the fall of the river. In November, 1631, they also 
granted to the Laconia company, which by its grant of 1629^ 
received no land in New Hampshire, a tract of land lying 
both sides of the Pascataqua river, but at no point conflict 
ing with the Hilton patent.^ 

Again, on the 22d of April, 1635, the Council for New Eng- 
land granted to John Mason New Hampshire and Masonia, 
together with all the rights, powers^ etc., which they them- 
selves possessed. This was Mason's share at the division of 
New England, apportioned a few weeks before the Plymouth 
Company surrendered its Charter. In this grant was in- 
cluded the south half of th^ Isles of Shoals. 

There is in the possession of the Maine Historical Society 
a copy of a royal charteir bearing date of August 19, 1635,* 
which confirms John Ma^on in the territory finally granted 
by the Council for New' England April 22, 1635. By this 
charter he was accorded rights of government not unlike 
those granted in 1639 to Gorges for his province of Maine. 
The authenticity of this charter has been seriously ques- 
tioned, as no record of it is known to exist in the British 
archives. As John Mason died in the following December, 
he may have been unable to give personal attention to the 
proper recording of his charter. Certainly there is nothing 
surprising or improbable in such a grant from Charles to a 
loyal subject like John Mason, who had spent many years in 
his service; who was a strong supporter of the Church of Eng- 
land, and consequently a thorn in the flesh of the Puritans of 
Massachusetts Bay.^ 

^Jenness, Isles of Shoals, p. 58. 

*25 State Papers, 698-705; 29 State Papers, 39-43; Quint, Hist. Memoranda 
of Ancient Dover, p. 17. 

*For a copy of this charter with critical comment, see Tuttle and Dean, 
Capt. John Mason (Prince Society), pp. 355-378; also 29 State Papers, 69-85. 

*"The last winter Capt Mason died. He was the chief mover in all attempts 
against us, and was to have sent the general governor, and for this end was 



18 HBW HAMPSHIRE PROVINCB LAWS. 

The validity of the like charter issued four years later 
to Ferdinando Gorges is not questioned. All the reasons 
that induced such a grant to Gorges would operate in 
favor of a similar one to Mason. The argument against 
its validity, that it may have been a forgery executed for 
use in the subsequent litigation in which the Mason heirs 
were engaged, would have very much greater weight if there 
were any evidence that it was ever put to such use. The copy 
comes from the proper custody, that is, the office of the sec- 
retary of the province, and bears the certification of Mr. Secre- 
tary Chamberlain, one of the earliest incumbents of that 
office. The dispersion and suppression of papers which be- 
long to the chain of evidence in Mason's title were entirely 
possible when those papers were later in the custody of 
persons who undoubtedly removed and destroyed the leaves in 
the court records in which the judgments in favor of Mason 
were entered.^ 

A bit of contemporary evidence concerning local opinion as 
to the nature and extent of the governmental rights con- 
tained in the various patents granted by the Council for New 
England may be found in "A Relation Concerning the Estate 
of New England," assigned by Jenness to about the year 
1636. After mentioning twenty different patents the writer 
continues: 

"The above menconed Patents are not all of one kinde, for 
some are in the nature of Corporacons and have power to 
make Lawes, ffor the goveminge of their plantacons, others 
are but onely assignmn'ts of soe much Land to bee planted 
and possessed without power of govemm't. 

"Of the first sort are onely theis ffower, vizt: 

"1. New Plymouth 2. Massachusetts 3. Pascataquack & 4. 
Pemaquid. 

"The Civill governmn't of the Colonies remaine in the power 
of those who are Principall in the Patents of w'ch those w'ch 
have authoritie to establish lawes, doe Execute theire Juris- 
diction & soe ffar as I could understand, as neere, as may bee 
accordinge to the lawes of England, And those whoe have 
not that legall power doe governe their servants and Ten- 
nants in a Civill way, soe ffar as they are able."^ 

providing^ ships; but the Lord, in mercy, taking- him away, all the business 
fell on sleep." Winthrop, History of New England, Savage's ed., vol. 1, p. 
223. A sequence to the death of John Mason, important in respect to the 
possibility of the accomplishment and maintenance of a union of the towns 
of New Hampshire with those of Massachusetts Bay, was the fact that the 
assertion of the Masoniau title was kept in abeyance for many years, in the 
widowhood of Capt. Mason's daughter, and until the able and aggressive 
grandson, Eobert Tufton Mason, attained age and position which enabled 
him to procure the severance of the New Hampshire towns from Massachu- 
setts Bay, and to compass the erection of a new province largely for the con- 
servation of his landed interests. 

^Farmer's Belknap, pp. 149, 150, 157; 3 Prov. Papers, 297, 298, 299. 
*17 State Papers, 491, 492. It is not clear who was the author of this "Re- 
lation." The powers of government in the Laconia patent seem as extensive 



SOURCES AND ANTBCBDBNTS. 19 

A question of great interest to the student of early New 
Hampshire history, and one which was of some importance in 
its bearing on the long litigation conducted by the various 
claimants for New Hampshire soil, is that relating to the au- 
thenticity of the Wheelwright deed, by which it is claimed 
that on the I7th of May, 1629, John Wheelwright purchased 
from Passaconaway and other Indian sagamores a large tract 
of land in the region of Pascataqua, and in the same territory 
which was soon after granted to John Mason by the Council 
for New England. Like all deeds from the Indians it en- 
countered serious antipathy and prejudice as evidence in de- 
termining titles. Governor Andros declared that such deeds 
were no better than "the scratch of a bear's paw."^ Mr. 
Charles H. Bell, in his work on John Wheelwright in the 
Prince Society publications, has a very careful review of the 
evidence bearing upon the question of the authenticity of this 
deed, together with its interesting history in its entirety.^ 

The records of the town of Portsmouth were subjected to 
a singular treatment in 1652. The local authorities, regard- 
ing the greater part of the recorded matter as obsolete or 
superfluous, caused some extracts which they supposed might 
be of use to be entered in a new book, and the old ones were 
either lost or destroved.^ 

The Dover records now extant reach back to an earlier * 
date. It is probable, however, that the earliest records of 
that town are also lost, as the oldest official account of any 
town meeting in Dover is found in a book entitled "No. 7 old 
Book of Records."* 

The records of Exeter are in a more complete and satisfac- 
tory form. They extend back into the period prior to the 
union, with Massachusetts Bay, to which Exeter did not be- 
come a party until 1643.*^ 

The early records of Hampton are very nearly contempo- 
rary with the existence of the town, including the minutes of 
a town meeting, probably the first that was holden, as early 
as October 31, 1639. Hampton, however, was regarded from 
the outset as a Massachusetts town, the act of incorporation 

as those in the Pascataquack patent granted somewhat later. While the 
writer was right in saying that the patents were "not all of one Kinde" he 
w^as probably not familiar with the exact provisions relating to the powers 
of government contained in some of the patents. See also opinion of Mr. 
Justice W. S. Ladd, 57 N. H., p. 79. 

'Farmer's Belknap, p. 119; see also Fiske, New France and New England. 
1902, p. 238. 

*Bell, John Wheelwright, Prince Society pub., pp. 79-142. For another view 
of this question see Winthrop's Hist, of N. E., Savage's edition, vol. 1, Appen- 
dix H, pp. 486-514; also 1 Province Papers, pp. 56-60, and index. 

•Farmer's Belknap, p. 28. 

*Quint, Ancient Dover, pp. 1, 31. 

'Bell, History of Exeter, pp. 43, 435. 



20 NEW HAMPSHIRE PROVINCE LAWS. 

under which it was organized having been granted by the 

Bay colony.^ ^ . 

It will be discovered that the material for an accurate 
description of the rules and methods of local government 
which prevailed in the early Pascataqua settlements is very 
meager. Dr. Quint says: "Under Edward Hilton, from 162a 
to 1631, there could have been no civil organization. Nor did 
Thomas Wiggin, who came in 1631, returned in 1632, and led 
hither a reinforcement in the autumn of 1633, bring with it 
any power of government. By some historians he has been 
absurdly styled ^Governor.' He was merely the agent of an 
English land and trading company. That company itself 
had no power of civil government. Capt. Wiggin had, indeed^ 
the power to allot lands to settlers, and formal descriptions of 
some of these grants are extant, copied in the next decade. 
There is some reason to suppose that William Waldron may 
have made the original papers. 

"In the autumn of 1637, the people formed a ^Combination^ 
for government, and Kev. George Burdett was placed at the 
head. It has been ridiculously stated that he 'thrust ouy 
Capt. Wiggin, a man who was never in. The statement is 
one of those perversions which a student of early New Hamp- 
shire history comes to expect as a matter of course. The 
simple fact"^ was that, in the absence of government, the 
growing colony found it necessary to organize. An inde- 
pendent government continued till a unipn with Massachu- 
setts, 9th Oct., 1641. But an intermediate 'Combination' had 
been made 22 Oct., 1640, whose records were in a volume ex- 
tant in 1682, to which Gov. Cranfield and the historian Hub- 
bard had access. Whether the volume was taken to England 
in the Masonian trials, or never emerged from the hiding 
place where the people concealed it in those suits, is a mat- 
ter of sad conjecture. 

"In connection with the above notice of errors, it may be 
well enough to allude to two or three others. One is that 
Thomas Roberts was never ^Governor' in Dover; he was 
President of its court — its court, doubtless, being but little 
more than a board of selectmen. More stupid was the ab- 
surdity that imposed upon Hubbard a belief that Edward 
Colcord was once ^Governor'; he was one of three men ap- 
pointed to decide cases 20 shillings in value. Entirely inex- 
cusable is the statement in some state publications, as in a 
Register now before us, that Dover was incorporated 22 
Oct., 1641. Some blunderer took the month and day of the 
second Combination and prefixed them to the year of the 
union with Massachusetts and called the hybrid result the 
date of incorporation. Dover never was incorporated. 

"Dover was independent until annexed to Massachusetts^ 
9 Oct. 1641. At the next general court, that of May, 1642^ 

^Dow, History of Hampton, vol. 1, p. 15. 



SOURCES AND ANTBCBDENTB. 21 

Savage says that William Waldeme appeared from Dover 
and sat one day. The general eonrt held sessions in spring 
^nd autumn of each year. Deputies were chosen sometimes 
for one session, sometimes for the year.''^ 

The facts which throw light upon the local government of 
the settlements on the lower Pascataqua are very fully mar- 
shalled and clearly presented in recent publications which 
include The Indenture of David Thomson^ by Charles Deane, 
Ifotes on the First Planting of New Hampshire,^ by John 
S. Jenness, Life of John Mason,* by Tuttle and Dean, and 
Historical Papers, by Charles W. Tuttle, posthumously pub- 
lished.*^ 

The early settlers of New Hampshire had among their 
number no Bradford nor Winthrop to write out their annals, 
and to give posterity an account of all the details, great and 
«mall, which related to the inauguration and progress of 
their enterprises. 

The great majority of the first Englishmen who occupied 
New Hampshire soil may be characterized as industrious, 
enterprising, and unpretentious farmers, fishermen, and lum- 
bermen, who crossed the ocean under commonplace induce- 
ments and employment from the proprietors of the land pat- 
ent, to prosecute their ordinary vocations. It may be 
assumed, also, that they manifested little concern about the 
establishment of a state or a church, the conservation of re- 
ligious freedom, the propagation of the gospel, or the con- 
version of the heathen. If properly classed as churchmen 
and royalists, they have left no evidence that they were of a 
class that were obtrusive or aggressive in respect to their 
religious or political ideas.® 

Government in these settlements, later considerably in- 
creased in population, was necessarily to some extent influ- 
enced and controlled by the Laconia company and its repre- 
sentatives. The agencies of this company were manifest- 
ing their principal activity between the years 1630 and 1633.'' 

*Dr. A. H. Quint, Historical Memoranda of Ancient Dover, pp. 17, 18. 

*25 State Papers, 711-739. 

■25 State Papers, 661-709. 

*Voluine of the Prince Society publications. 

•See also Adams' Annals of Portsnciouth, Brewster's Bambles about Ports- 
mouth, Albee's History of New Castle, Jenness' History of the Isles of Shoals, 
Dow's History of Hampton, Brown's History of Hampton Falls, Bell's His- 
tory of Exeter, and Historical Memoranda of Ancient Dover, by Dr. Quint. 

•Shirley, Early Jurisprudence of New Hamp., pp. 15, 16. John J. Bell, 
Address before N. H. Hist. Soc, ProceedingTs, vol. 2, pp. 182-197; Copp v. Hen- 
niker, 55 N. H., p. 186; Perkins v. Scott, 57 N. H., p. 65; Colonial Life in New 
Hampshire, J- H. Fassett, 1903; Doyle, English Colonies in America, vol. 2, 
The Settlements North of Massachusetts, pp. 201-219; Judicial History of 
^ew Hampshire before the Revolution, by Salma Hale, Monthly Law Report- 
^, October, 1855; same article reprint, 3 Grafton and Coos Bar Association 
Proceedings, 53. 

^Jenness, The Isles of Shoals, pp. 58-69. The statement of Mr. Whiton on 
this point, History of New Hampshire, 1834, p. 152, is inaccurate. 



22 NIW HAMPSHIRB PReVINCB LAWS. 

The interests of John Mason continued dominant after the 
failure of the enterprises of the Laconia company until 1635» 
This was the period in which the so-called governorships of 
Wiggin at Dover and of Neale and Williams at Pascataqua 
intervened. The ordinary forms and methods of town govern- 
ment were then in prospect, and later to be made possible by 
the death of the proprietor and the immigration of enterpris- 
ing and self-reliant people from the neighboring colonies, who 
had become acquainted not only with the machinery but with 
the advantages of local self-government in towns.^ 

Dr. Quint contends that, if Captain Wiggin had author- 
ity from the patentees in England to act as governor, these 
patentees had themselves no right of government. "Nor," 
he continues, "had the Bristol men whose right these pat- 
entees had purchased, any power of government; nor did 
Hidton and others, who had sold to the Bristol men their 
Dover and Squamscott patent, have any power of govern- 
ment; nor had the ^Council at Plymouth^ in England, who 
in 1631 gave these patents to Hilton and his associates; 
neither had Oapt. John Mason, whose grants covered the 
same territory, for, as the English courts say in 1677, ^as to 
Mr. Mason^s right of government within the soil he claimed, 
their Lordships, and indeed his own counsel, agreed he had 
none; the great Council of Plymouth, under whom he claimed 
having no power to transfer government to any.' What- 
ever civil power, therefore, Capt. Wiggin possessed was a 
clear case of ^squatter sovereignty.' And what there was 
was of a very weak kind, never extending to anything very 
serious. Wiggin himself was aware how doubtful his 
authority was."^ 

The legal position thus stated was one on which the Puri- 
tans were well informed, and a contrary theory, as already 
shown, was actually worked out in the Plymouth and Massa- 
chusetts Bay colonies. Had Capt. John Mason been per- 
mitted to continue the prosecution of his enterprise for a few 
years longer, with suflBcient financial resources, and with the 
active endorsement of the home government, the accomplish- 
ment of his idea of a palatinate might have been more prom- 
ising than the students of the affairs of that period are now 
-disposed to admit. 

Before passing on in the narrative and without, at this 
point, entering further upon a discussion of the validity of Dr. 
Quint^s position in its legal aspects, it may be remarked that 
a very elaborate and conclusive treatment of the right of the 
Massachusetts Bay Company and Colony to legislate for them- 

*New Hampshire State Papers, vols. 27, 28, 29, original documents and edi- 
tor's prefaces to same volumes, relating to various aspects of the Masonian 
title and Masonian controversy. 

•Quint's Ancient Dover, p. 423, Opinion by Justice W. S. Ladd, in Perkins !?• 
Scott, 57 N. H., particularly commenison p. 79. 



SOURCES AND ANTECBDBNTS. 23 

selves may be consulted in a lecture by Joel Parker, formerly 
chief justice of New Hampshire, and later Royall professor of 
law in Harvard University, delivered at the Lowell Institute 
February 9, 1869, on the subject, "The First Charter and the 
Early Religious Legislation of Massachusetts." Of course 
the fact is not to be overlooked that the patent of the Ply- 
mouth Company to the colony of Massachusetts Bay was re- 
inforced by the crown charter of 1628-9. 

The next stage in the development of definite schemes of 
local self-government in these towns is observed, in the con- 
crete, in the adoption of the town system of government 
which was then prevalent in New England. The paucity of 
town records for this period renders the results of investiga- 
tion as to the powers assumed and the methods employed in 
these practically independent town governments imperfect 
and unsatisfactory. The Exeter records^ afford glimpses of 
ordinances enacted by the people in town meeting, or pro- 
mulgated by the magistrates. More important, however, are 
the "Combinations for local Government.'^ There is evi- 
dence here of a distinct purpose on the part of each of the 
three towns of Portsmouth, Dover, and Exeter to adopt a 
basis for a permanent government upon the democratic 
method. This must certainly be regarded as in the nature 
of organic law. A more extended treatment of these in- 
struments is to be found in the papers of Mr. Tuttle.^ 

The Compact fob Union with Massachusetts Bay and 
THE Rights and PRiviLEGiBS Conceded to the Towns 
OF New Hampshire. 

By 1641 all of the New Hampshire towns had made some 
provision for local self-government. It will be remembered 
that Hampton, from the first, had been claimed by Massa- 
chusetts Bay, and that colony continued to exercise jurisdic- 
tion over it. But the conditions and prospects of the other 
three towns were not encouraging. After the death of John 
Mason in 1635 they seem to have been forgotten by the home 
government, and political conditions and tendencies in Eng- 
land at the time did not promise these obscure colonists much 
hope for the future. Massachusetts Bay, from an early date, 
had claimed them as within her grant, and as more and 
more of the Bay Puritans secured, by purchase, shares in the 
Pascataqua and Hilton patents, her claim was regarded with 
favor by a party of some strength in all of the towns.^ 

*1 Province Papers, 128-145; BeU's Exeter, pp. 433-447; Appendix B, this 
volume, pp. 738-743. 

'Tuttle, Historical Papers; id,, Appendix C, this volume, pp. 744-747. 
•25 State Papers, 691, 692. 



24 NEW HAMPSHIRB PROVINCI LAWS. 

Despite the fact that the course of the towns in adopting 
the "Combinations" showed a creditable respect for law, it 
was found difficult to preserve order among the people. 
This is not surprising when we recall that such adventurers 
as Burdett, Larkham, and Underhill were among their 
chosen rulers. As the towns were a frontier region, exposed 
to the hostilities of the French and Indians, whose most 
active spirits were licentious clergymen exiled from Massa- 
chusetts Bay, it was a most natural course to seek a political 
union, under favorable terms, with the strong contiguous 
Puritan colony.^ 

In 1639 the inhabitants of Dover petitioned the general 
court of Massachusetts to receive them under her jurisdic- 
tion; but the proi)osed conditions of union were unsatisfac- 
tory. In June, 1641, the patentees of both the Hilton and 
Pascataqua patents transferred to Massachusetts all rights 
of jurisdiction and civil government which they themselves 
possessed, reserving to themselves the title to the larger part 
of the land; and in September following the towns of Ports^ 
mouth and Dover were formally annexed under an act secur- 
ing all rights possessed by the citizens of the Bay colony. A 
copy of the concession of June, 1641, and of the act of union, 
September, 1641, follow: 

1641. 
2 June. 

The 14th of the 4th Mo, 1641. 
Whereas some lords, knights, gentlemen, & others did pur- 
chase of ISIr. Edward Hilton & of some mrchants of Bristol! 
two pattents, the one called Wecohannet, or Hiltons Point, 
comonly called or knowne by the name of Dover, or Northam, 
the other pattent set forth by the name of the south part of 
the ryver of Pascataquack, begining at the sea side, or 
neare there abouts, & coming round the said land by the 
ryver unto the falls of Quamscot, as may more fully appear 
by the said grant: And whereas, also, the inhabitants resid- 
ing at ^sent wthin the limits of both the said grants have of 
late & formerly complained of the want of some good gov- 
emm't amongst them, & desired some help in this ^ticular 
fro the jurisdiction of the Massachusetts Bay, whereby they 
may bee ruled & ordered according unto God, both in church 
and comon weale, and for the avoyding of such unsuflferable 
disorders, whereby God hath bene much dishonored amongst 
them: Those gentlemen, whose names are here specified, 
George Wyllys, gent, Kobt Saltonstall, gent, Willi: Whiting, 
Edward HoUiock, Thomas Makepeace, partners in the said 

*Mr. Jenness and Mr. Tuttle both give the subject of the first union special 
attention, and their works contain discussions of the Puritan purposes and 
methods in respect to this consummation in distinct contrast with the ordi- 
nary presentation of the subject from the Puritan point of view. 



SOURCBS A5D ANTECEDENTS. 25 

pattent, do, in the behalfe of the rest of the patentees, dis- 
pose of the land & jurisdiction of the ^mises as followeth, 
being willing to further such a good worke, have hearby for 
themselves, & in the name of the rest of the patentees, given 
up & set over all that power of jurisdiction, or govemm't, of 
the said people dweling or abiding wthin the limits of both 
the said pattents, unto the govmm't of the Massachusetts 
Bay, by them to bee ruled and ordered in all causes, crim- 
inall & civill, as inhabitants dweling wthin the limits of the 
Massachusets governm't, & to bee subject to pay in church 
and comon weale as the said inhabitants of the Massa- 
chusetts Bay do, & no other. 

And the freemen of the said two pattents to enjoy the like 
liberties as other freemen do within the said Massachusetts 
govemmt, & that there shall bee a court of justice kept 
wthin one of the 2 pattents, wch shall have the same powr 
that the Courts of Salem & Ipswich have; provided, alwayes, 
& it is hearby declared, that one of the said pattents, that 
is to say, that on the south side of the ryver of Pascataquack, 
& in the other pattent one third ^ft of the land, wth all im- 
proved land in the said pattent, to the lords & gentlemen, & 
other owners, shalbee & remaine unto them, their heirs & 
assignes forever, as their proper right, & as haveing true in- 
terest therein, saveing the interest of jurisdiction to the Massa- 
chusets. 

And tl^e said pattent of Wecohannett shalbee divided, as 
formerly is exprest, by indifferent men equally chosen on 
both sides, wherby the plantation may bee furthered, & all 
occasions of difference avoyded. 

And this honored Court of the Massachusets doth hearby 
^mise to be helpfuU to the maintenance of the right of the 
said patentees, in both the said pattents, in all legall courses^ 
in any part of their jurisdiction. 

Subscribed by the forenamed gentlemen in the ^sence of 
the Generall Court assembled the day afore written. 

[Mass. Records, vol. 1, p. 324.] 

1641. 
2 June. 

Whereas the lords & gentellmen patentees of Dover & 
other tracts of land upon the ryver of Pascataque have 
passed a grant of the same to this Court, to bee forever an- 
nexed to this jurisdiction, wth reservation of some sPt of the 
said lands to their owne use, in regard to ^priety,* it is now 
ordered, that the ^sent Govrnor, assistet wth 2 or 3 of the 
other matrats, shall give comission to some tneete ^sons to 
go to Pascataque, & give notice hearof to the inhabitants 
tliere, & take order for the establishing of government in the 
limits of the said patentees, & to receive into this jurisdic- 



26 NEW HAMPSHIRE PROVIKCB LAWS. 

tion all other inhabitants upon the said river as may & shall 
desire to submit themselves thereunto. 
[Mass. Records, vol. 1, p. 332.] 

1641. 

7 October. 

Whereas it appeareth that by the extent of the line, (ac- 
cording to or patent,) that the ry ver of Pascataquack is wthin 
the jurisdiction of the Massachusetts, & conference being 
had (at severall times) wth the said people, & some deputed 
by the Generall Court, for the setteling & establishing of 
order in the administration of justice there, it is now ordered, 
by the Genrall Court, houlden at Boston, the 9th day of the 
8th mo, 1641, & wth the consent of the inhabitants of the 
said ryver, as followeth: — 

Impr: That from hencefourth the said people inhabiting 
there are, & shalbee, accepted & reputed under the govern- 
ment of the Massachusets, as the rest of the inhabitants 
wthin the said jurisdiction are. 

Also, that they shall have the same order, & way of admin- 
istration of justice, & way of keeping Courts, as is estab- 
lished at Ipswich & Salem. 

Also, they shalbee exempted fro all publique charges, 
other than those that shall arise for or from among them- 
selves, or fro any occation or course that may be taken to 
^cure their owne sP^ good or benefit. 

Also, they shall enjoy all such lawful liberties of fishing, 
planting, felling timber, as formerly they have enjoyed in the 
said ryver. Mr Symon Bradstreete, Mr Israeli Stoughton, 
Mr Samu: Symonds, Mr Willi: Tynge, Mr Francis Williams, 
& Mr Edward Hilton, or any four of them, whereof Mr Brad- 
streete or Mr Stoughton to bee one, these shall have the same 
power that the Quarter Courts at Salem & Ipswich have; 
also the inhabitants there are alowed to send two deputies 
from the whole ryver to the Court at Boston. 

Also Mr Bradstreete, Mr Stoughton, & the rest of the com- 
issioners shall have i)ower at the Court at Pascataquack t© 
appoint two or three to joyne wth Mr Williams & Mr Hilton, 
to governe the people, as the magistrates do heare, till the 
next Generall Court, or till the Court take further order. 

It is further ordered, that untill o[u]r comissionrs shall ar- 
rive at Pascataquack, those men who already have authority 
by the late combination to governe the people there shall 
continue in the same authority & power, to bee determined 
at the comeing of the said comissioners, & not before. 

[Mass. Records, vol. 1, pp. 342, 343.] 

It will be seen from these records that most favorable 
terms were granted by the general court of Massachusetts; 



r 



80URCKS AND ANTBCBDENTS. 27 

but this body was induced to go further and make an excep- 
tion in favor of the New Hampshire towns that must have 
been viewed with many misgivings by the strictest sect of the 
Puritans. In the acts of the general court for September 27, 
1642, the following entry appears: 

"It is ordered that all the ^sent inhabitants of Pascataq 
who formerly were free there shall have liberty of freemen 
in their several townes to manage all their towne affaires, & 
shall each towne send a deputy to the Gen'rall Court, though 
they be not at ^sent church members."^ 

And in this way New Hampshire contributed something to 
the advancement of civil and religious freedom towards that 
state of ample development which was attained under the 
later American constitutions. 

In 1643 Exeter, upon a second petition to the general court, 
the first probably not disclosing the proper spirit of submis- 
sion, was admitted under the same terms as the other towns, 
with the exception that this town was not to be allowed a 
deputy to the general court. "But this was no [unmitigated] 
hardship, as the inhabitants could ill afford the expense 
which would thereby fall upon them, and their apparent need 
of a representative in the legislature was small."^ 

At this time Newcastle, although an important settlement, 
was still a part of Portsmouth; and that part of .the Isles of 
Shoals which had early become commercially important was 
within the boundaries of the province of Maine.^ 

The Natitrb and Extent of the Lawmaking Powers with 
Which the Company and Colony of Massachusetts 
Bay Was Invested. 

Among the fundamental facts which underlie the history of 
the statute law of New Hampshire these will be recognized 
as indisputable; the beginning of an original system of stat- 
ute law of local construction in Massachusetts Bay was defi- 
nitely marked by the promulgation of the Body of Liberties 
in 1641; the union of Portsmouth and Dover (soon to be fol- 
lowed by the accession of Exeter) with the Bay Colony was 
very nearly contemporary with the appearance of the Body of 
Liberties as an experiment in written colonial law for the 
ruling and direction of the people of all the towns of the two 
united colonies; this union oh the part of the New Hamp- 
shire towns was with the Puritan state of Massachusetts, and 
not with the Pilgrim colony of Plymouth; the system of 
statutes which was developed from the Body of Liberties, and 

^Mass. Records, vol. 2, p. 29; see also Doyle, Englisli Ck)lonie8 in America, 
vol. 2, pp. 213, 214. 

"Bell, History of Exeter, p. 46. 

'Jenness, Isles of Shoals, pp. 105, et seq. 



28 NBW HAMPSHIRE PROVINCE LAWS. 

which had resulted in 1679 from thirty-eight years of legisla- 
tion, was valid law as well for New Hampshire as for Massa- 
chusetts Bay ; there was no requirement for the transmission 
of those statutes for revision by the home government, and no 
evidence has appeared that they were even specifically re- 
pealed by the king in council or by act of parliament; they 
represented, therefore, the will/ of the people whose representa- 
tives gave them enactment, more fully, fairly, and certainly 
than any subsequent colonial legislation which was subjected 
to the veto power of crown governors and the revision of the 
home gove!rnment; the laws enacted in the period between 
1641 and 1679 were necessarily the foundation of much of the 
positive law subsequently enacted or re-enacted, and the sub- 
stance of a large part of the common or unwritten law which 
was recognized by the people and continued to be an efficient 
legal element in colonial jurisprudence, both in New Hamp- 
shire and Massachusetts, however difficult it may be at the 
present time exactly to identify and measure it. It is also 
a historical fact of primary importance in the consideration of 
the validity of the statute law of Massachusetts Bay, enacted 
in the first period, that the right of the colony to exercise the 
IK>wers of legislation in the manner, for the purpose, and to 
the extent that such powers were exercised has been repeat- 
edly but never successfully challenged.^ The argument in sup- 
port of the validity of the powers exercised by the colony of 
Massachusetts Bay in the period between the grant of the first 
charter and its abrogation has not been presented with more 
cogency and conclusiveness than that which characterizes the 
review of the question by Joel Parker in his lecture at the 
Lowell Institute, before cited, on "The First Charter and the 
Early Eeligious Legislation of Massachusetts." While the 
completeness and accuracy of Judge Parker's examination of 
the subject at once deter others from an attempt to bring new 
and original considerations to bear on the points at issue, and 
render such an essay on the lines which he pursued almost or 
quite superfluous, the employment of extracts from his 
monograph may serve to outline the direction of his reasoning, 
and to recall this eminent authority as the best modern repos- 
itory of the Puritan defense of the early Puritan legislation. 

"Whatever rights the charter purported to grant," says 
Judge Parker, "vested lawfully in the grantees. 

"The title to unoccupied lands belonging to Great Britain, 
whether acquired by conquest or discovery, was vested in the 
crown. The right to grant corporate franchises was one of 
the prerogatives of the king. And the right to institute and 
to provide for the institution of colonial governments, whether 
by charter, proprietary grant, or commission, was likewise one 

^Chalmers, Annals, 1780; Oliver, Puritan Commonwealth, 1856; Emancipa- 
tion of Mafisachusetts, Brooks Adams, 1887. 



SOURCBS AND ANTECEDENTS. 29 

of the prerogatives. Parliament had then nothing to do with 
the organization or government of colonies. 

"The confirmation, therefore, in the charter, of the grant of 
the lands from the Council of Plymouth (which derived title 
from the grant of James I., and which could grant the lands, 
but could not grant nor assign powers of government), with a 
new grant, in form, of the same lands, gave to the grantees a 
title in socage; substantially a fee-simple, except that there 
was to be a rendition of one-fifth of the gold and silver ores. 
The grant of corporate powers, in the usual form of grants to 
private corporations, conferred upon them all the ordinary 
rights of a private corporation, under which they could dispose 
of their lands, and transact all business in which the company 
had a private interest. And the grant of any powers of 
colonial government, embraced in the charter, was valid and 
effective to the extent of the powers which were granted, 
whatever those powers might be; the whole, as against the cor- 
poration, being subject to forfeiture for suflScient cause. 

"The grant and confirmation of the lands, and the grant of 
mere corporate powers for private purposes, were private 
rights, which vested in the grantees; and which the King 
could not divest, except upon some forfeiture regularly en- 
forced. Upon such forfeiture, the corporation would be dis- 
solved, and all of the lands belonging to it would revert, in 
the nature of an escheat. But this would not affect valid 
grants previously made by it 

"The grant of power to institute a colonial government, 
being a grant not for private but for public purposes, may 
have a different consideration. Whether by reason of its con- 
nection with the grant of the lands and of ordinary corporate 
powers, it partook so far of the nature of a private right that 
it could not be altered, modified, or revoked, except on for- 
feiture, enforced by process; or whether this part of the grant 
had such a public character that the powers of government 
were held subject to alteration and amendment, is hardly 
open to discussion. At the present day it is held that munici- 
pal corporations, being for public uses and purposes, have no 
vested private rights in the powers and privileges granted to 
them, but that they may be changed at the pleasure of the gov- 
ernment. That principle seems to be equally applicable to 
a grant of colonial powers of government; and the better opin- 
ion would seem to be that it was within the legitimate prerog- 
ative of the king, at that day, to modify, and even to revoke, 
the powers of that character which had beeja granted by the 
crown, substituting others appropriate for the purpose.^ 

*If this distinction between public and private corporations, well settled at 
the present time, was not then recog-nized, it is not because there has been a 
change of principle since the period; but because the principles which gov- 
ern these two descriptions of corporate rights were not then well developed; 



30 NEW HAMPSHIRE PROVINCE LAWS. 

"If the king had assumed to revoke the powers of govern- 
ment granted by the charter, without substitution, or if he 
had imposed any other form of government, by which the es- 
sential features of that which was constituted under the char- 
ter would have been abrogated, it might have been an arbi- 
trary exercise of power, justifying any revolutionary resist- 
ance which the colony could have made. But the crown, 
under the then existing laws of England, must have possessed 
legally such power over the colony as the legislature may 
exercise over municipal corporations at the present day. The 
charter, so far as the powers of government were concerned, 
could not be treated as a private contract. 

"The charter was originally the only authority for the gov- 
ernment of the territory embraced in it. The Council at Ply- 
mouth, in the County of Devon, never attempted to exercise 
powers of government over the colony of Massachusetts; and 
there was no compact or agreement to form a government 
The grantees professed, in all they did, to act under the char- 
ter, and, as they contended, according to the charter. 

"We are to look to the terms of the charter, therefore, and 
to a sound construction of its provisions, to ascertain what 
rights of legislation, religious or otherwise, were possessed by 
the grantees. 

"The charter bears date March 4 1628 [29]. 

"From a careful examination of it, I have no hesitation in 
maintaining five propositions in relation to it. 

1. "The charter is not, and was not, intended to be an act 
for the incorporation of a trading or merchants' company 
merely. But it was a grant which contemplated the settle- 
ment of a colony, with power in the incorporated company to 
govern that colony. ♦ ♦ ♦ 

2. "The charter authorized the establishment of the gov- 
ernment of the colony within the limits of the territory to be 
governed, as was done by the vote to transfer the charter and 
government. ♦ ♦ ♦ 

3. "The charter gave ample powers of legislation and of 
government for the plantation, or colony, including power to 
legislate on religious subjects, in the manner in which the 
grantees and their associates claimed and exercised the legis- 
lative power. ♦ ♦ ♦ 

4. "The charter authorized the exclusion of all persons 
whom the grantees and their associates should see fit to ex- 
clude from settlement in the colony; and the exclusion of 
those already settled, by banishment as a punishment for 
offences. ♦ ♦ ♦ 

and hence the claim of the crown to power over both public and private 
rights, and the claims of the colonists under their charter, without any dis- 
tinction between the two. When a right application is made of this princi- 
ple to the colonial history, it will show that the complaints of the colonists 
. of infringement of their charters were not all well founded. 



SOUKCKS AND ANTECKDEKTS. 31 

"They were the owners of the soil; and, in the absence of 
conditions or limitations, the owner of such a title has an ex- 
clusive right of possession. They were the grantees of a char- 
ter of incorporation; and such grantees, unless there is some 
special provision or circumstance controlling them, may de- 
termine who shall be admitted to a participation in their cor- 
porate rights. ♦ ♦ * 

5. "The charter authorized the creation and erection of 
courts of judicature to hear, try, and determine causes, and to 
render final judgments and cause execution to be done, with- 
out any appeal to the courts of England, or any supervisory 
power of such courts."^ ♦ « » 

New Hampshire in the Period of Union with the 
Massachusetts Bay — The Systems of Statute Law 
Constructed and Developed between 1641 and 1679. 

An epoch has now been reached in which for thirty-eighl 
years the statutes of Massachusetts Bay were those of New 
Hampshire. This may be regarded as the second period of 
the statutory, as well as political, history of New Hamp- 
shire. It was not New Hampshire alone, although a closer 
political relation was in every way desirable for the inhab- 
itants of the Pascataqua towns, that was benefited by the 
union with Massachusetts. This fact is disclosed in the will- 
ingness of the general court to admit to the right of suffrage 
inhabitants of the New Hampshire towns, otherwise qual- 
ified, who were not church members. During this period 
New Hampshire was favored with strong leaders who made 
themselves felt in the united government. Major Eichard 
Waldron, who represented Dover from 1656 until the estab- 
lishment of the province, was for seven years speaker of the 
house of deputies. John J. Bell, in an address before the 
New Hampshire Historical Society some years ago, says of 
the men of New Hampshire at this time: "As we look back 
... we cannot but be struck with the fact that their leaders 
would have been eminent in any community. . . . They not 
only have greatly modified the character of New England 
town governments, but have contributed no less than Massa- 
chusetts herself to make New England's fame and char- 
acter."2 

During this period there was no obstruction or discourage- 
ment of Puritan migration into these frontier towns where 
before, for the greater part, the people had been satisfied with 
thinking for themselves on questions of theology without man- 
ifesting any special disposition to exclude those of different 
ecclesiastical notions from their midst. In a few instances 
the magistrates of New Hampshire towns employed harsh 
measures towards the Quakers, such as were customary in 

^Lowell Inst, lecture, pamphlet ed., pp. 8, 10, 11, 30, 39, 42. Peter Oliver's 
"Puritan Commonwealth,** Reviewed by J. Wingate Thornton, 1857. 
•Proceedings, N. H. His. Soc, vol. 2, p. 191. 



32 NEW HAMP8HIBB PROVINCB LAWS. 

the Puritan colony.^ It will be borne in mind that the same 
laws were in force in the two colonies. 

The first code of laws of Massachusetts Bay was adopted 
in 1641, at about the time of the union with Portsmouth and 
Dover. It is probable that the governor and council had 
previously exercised a considerable degree of latitude in de- 
claring and enforcing rules of conduct; and when, in 1635, the 
deputies took an active part in the government they were 
anxious for a definite code. "But," says Palfrey, "it was 
several years before this object, diligently pursued by* the 
freemen, was accomplished. The magistrates and ministers, 
who did not favor it, knew how to interpose embarrassments 
and delays."^ Two reasons which infiuenced the magistrates 
and some of the elders "not to be very forward in this mat- 
ter^' were, first, "such laws would be fittest for us which 
should arise pro re nuta upon occasions"; and, secondly, "to 
raise up laws by practice and custom had been no transgres- 
sion" of the charter. At length the matter was referred to 
Eev. John Cotton and Rev. Nathaniel Ward,^ each of whom 
prepared and presented a code. The one drafted by John 
Cotton was never accepted either by the freemen or by the 
general court; but, as it was published in London in 1641 
under a false title and frequently reprinted, it has long en- 
joyed an undeserved reputation as the Massachusetts Body 
of Liberties of 1641. 

The code drawn by the Rev. Nathaniel Ward, possibly 
amended by the towns or by the general court, was approved 
in 1641, and is the foundation of the legislation of Massachu- 
setts. A manuscript copy of these laws was found by the 
late Francis C. Gray in the Athenaeum library, and first pub- 
lished in 1843 in a volume of the Collections of the Massachu- 
setts Historical Society.* 

No code of laws can be final, and, of course, statutes were 
passed each year, until a general revision was found necessary. 
A new compilation was made with care, several years being 
spent upon the work, and put in print in 1649. This is known 
as the Revision of 1649, or the First Printed Book of Laws.^ 
It was almost certainly a book of about fifty-six pages, con- 
taining the Body of Liberties of 1641, very nearly entire, and 
such other statutes passed before May, 1649, as were of a 

"Dover Records, December 22, 1662. Ancient Superstitions as reflected in 
the Early New England Laws, address before the Grafton and Coos Bar 
Association by Erastus P. Jewell of Laconia, 1809, manuscript unpublished. 
Ferguson, Essays in American History, The Quakers in New England, 1894. 

•Palfrey, His. of N. E., vol. 1, p. 442. 

■Savage's Winthrop's History of New England, vol. 1, pp. 388, 389. 

*Mass. Hist. Soc. Col., First Series, vol. 5. Post, Appendix D, pp. 748-771. 

■The first printing press in New England was established at Cambridge in 
1638, (N. S. 1639.) 



/ 

/ 

I 

I 



SOURCES AND ANTECEDENTS. 33 , 

permanent nature. It was issued in an edition of six hun- 
dred copies. It is a singular fact tliat not one copy of this 
book is now known to be in existence. A supplement ap- 
peared in 1650, referred to in the revision of 1660 as the Sec- 
ond Book of the Law; and very likely other supplements were 
issued between 1650 and 1660, the date of the next revision.^ 
The committee, in preparing the revision of 1660, included 
some acts not previously passed by the general court; and 
presumably it also marks the limitation of many previous acts- 
On May 22, 1661, an act was passed providing for the annual 
printing of the session laws, as we now term them. 

As early as 1664 a movement was under way for another 
revision, and at the May session, 1665, the Royal Commis- 
sioners presented twenty-six changes which they desired to 
have made in the "Book of the General Laws and Liberties 
' of 1660.^^ Their principal objects were to have substituted 
for all expressions recognizing the supremacy of the com- 
monwealth an acknowledgment of the royal authority; to 
procure a recognition of the Church of England; and to re- 
move the long-standing limitation of citizenship to church 
members. An examination of the revision of 1672 shows 
that only one or two points were conceded by the general 
court, and that the recognition of His Majesty's supremacy 
appears in one clause, while the superiority, or at least the 
sufficiency, of the local authority was asserted in a score. 
The right of strangers to become citizens was nominally con- 
ceded, but on conditions that furnisned the minimum of privi- 
lege to all but church members. This revision of 1672 was in 
no sense a new code, but was published because of the lack 
of law books. In it were included such changes as had been 
made from time to time. 

Another attempt was made to revise the laws after 1672^ 
and would doubtless have succeeded before the beginning 
of the presidency of Joseph Dudley in 1686, had not the magis- 
trates and deputies failed to agree as to the part relating to 
the general court. The question was whether the charter 
provided for a negative in any branch of the general courts 
that is, whether it allowed a convention of the whole court, 
wherein all the magistrates might be of one opinion, and yet 
be overpowered by the numerical superiority of the deputies. 
In 1652 it had been voted that when the houses differed in 
any case of judication, whether civil or criminal, such case 
should be determined by the major part of the whole court. 
But this method of forcing an agreement was very disagree- 
able to the magistrates who, contending against it in 1672,. 
reluctantly yielded the point at last, though their powers 
were thereby greatly curtailed. But in 1686 they were more 
persistent, and by a prolonged contest prevented the comple- 

*The Charlemagne Tower CoUection of Colonial Laws, pp. 62-64. 



34 VBW HAMPSHIRE PROVINGB LAWS. 

tion of a new edition of the laws, and this, too, even after a 
part of the type for the volume had been set.^ 

In the Plymouth Colony there were compilations of the 
laws in manuscript, made in 1636 and 1658. But in 1671 
"a complete digest of all the laws then in force'' was per- 
fected. This was the first edition of the Plymouth Colony 
laws that was printed.^ It is from this edition that the Outt 
criminal code of New Hampshire was adapted almost ver- 
batim. 

The foundation of these early colonial laws was necessarily 
in a large measure in the Statutes of the Eealm, which, as 
already shown, had grown into a system comprehending a 
great variety of subjects and exigencies for which statutory 
provisions had been required and enacted. 

The charters, also, should be kept in view by those who 
investigate the beginnings and progress of law-maki^g in 
the colonies. While the limitations upon legislation imposed 
by the charters were sometimes ignored or circumvented, it 
would be unsafe to assume that they were not regarded and 
followed, with reference to most of the purposes and objects of 
legislation, as the organic law. 

It is also necessary in any attempt to identify the sources 
of the law by which the people of the Puritan colonies were 
governed, either under positive statutes, current decisions of 
their own courts, or unrecorded usages, to take into account 
the fact that they recognized the word of God, as declared 
in the Holy Scriptures, as a guide, as an authority, as a law 
in temporal as well as spiritual affairs. This is certainly 
true of the earlier Pilgrim and Puritan immigrants in Ply- 
mouth Colony and Massachusetts Bay. The Body of Liber- 
ties of the Massachusetts Bay colony and the General Laws 
of Plymouth Colony contain provisions and declarations 
which were undoubtedly intended to give the magistrates 
the right to have recourse to the Scriptures in the adminis- 
tration of the judicial department of the colonial govern- 
ments. This is, perhaps, more specifically indicated in the 
Plymouth laws than in the Body of Liberties of 1641.^ The 
relaxation of the strictness of Puritan ideas on this subject, 
which the historv of the colonies discloses, is well marked 
in their successive revisions and compilations of laws.* 

^For the history of the various editions of Mass. laws prior to 1686, see 
Whitmore, Colonial Laws of Mass., ed. 1889, pp. 1-28 and 71-117; supplement 
to author's notes in the 1890 edition of the same work. 

^Plymouth Colony Laws, ed. 1836, pp. viii, ix. 

'Body of liiberties, art. 1, p. 752, and art. 65, p. 759, po«f, Appendix to this 
volume; Plymouth Colony Laws, edited by William Brigham, 1836, pp. 241, 
243, 244. 

*From a New Hampshire point of view Dr. Belknap reviews the first union 
with Massachusetts in chapters 4, 5, and 6 of his history. In his chapter 3 he 
discusses the principles of New England Puritans. The Political Annals 
of the American Colonies, by George Chalmers, an Englishman and royal- 



SOURCES AND ANTBCBDBNT8. 85 

Surrounded, as these colonists were, by tribes of savages, 
upon whose continued friendship they could not rely for any 
considerable length of time, and with colonization progressing 
along the St. Lawrence by people of a nation which was the 
hereditary enemy of the mother country, a military spirit and 
military habit were developed in New England which charac- 
terized the people in successive generations, and which was 
reflected in their laws.^ 

The revolution in England which resulted in the Common- 
wealth and Protectorate, 1649-1660, afforded the colonists a 
respite from the autocratic policy of the Stuarts. It was an 
opportunity which was much more advantageous to them at 
this particular stage of the development and application of 
their ideas of self-government than any similar period of 
non-interference could have been after they had become in- 
trenched in their political positions, and had secured the 
advantage of largely increased population and resources^ as 
well as a military power and prestige not to be despised. 

Thi& inauguration and maintenance of a New England con- 
federacy, which began in 1643 and continued for more than a 
generation, was a source of strength and political education, 
and an augury of future governmental possibilities which has 
large meaning in the constitutional history of the people of 
these colonies.^ 

In 1679, upon this foreground of colonial history, events, 
elsewhere reviewed in these pages, culminated in the dis- 

ist, published in 1780, appeared about the same time as the first edition of 
the work of Dr. Belknap. The comments of the latter on certain portions 
of the Annals are con'tained in the preface to Farnier's edition of Belknap, 
p. ix. Prominent among the critics of the New England Puritans are Mr. 
Oliver in his Puritan Commonwealth, 1856, elsewhere mentioned, and 
Brooks Adams in his Emancipation of Massachusetts, 1887. Mr. Jenness 
and Mr. Tuttle, whose works are frequently cited in this volume, may be 
regarded as, in a sense, the principal representatives of the anti-Puritan 
school of historians, who have treated the subject in modern times with par- 
ticular reference to the relations of colonial New Hampshire to the dominant 
Puritan element in the early New England govemmeoits. 

'Potter, Military History of N. H., part 1; the Editor's Historical and Bibli- 
ographical Notes on the Mil. His. of N. H. in The History of the Seventeenth 
Regiment, ch. 28; id., pamphlet; Penhallow, Hist, of Indian Wars in New 
England, in N. H. His. Soc. Col., vol. 1, pp. 14-133; Mather, Relations of 
Troubles Which Have Happened in New England Because of Indians, 1614- 
1675; Farmer's Belknap's Hist, of New Hamp., chaps. 5, 10, 12, 14, 19, 20, and 
22; Pike's Journal, 3 Colleotons of N. H. Historical Society, 40; Parkman's 
histories, especially Pion-eers of New France, Frontenac and New France 
under Louis XIV, Half C (•ntu^^ of Conflict, and Montcalm and Wolfe; Fiske, 
New France and New England, 1902; History of the Indian Wars in New 
England to 1677, by William Hubbard, ed. by Rev. Samuel G. Drake, 1865. 

'Doyle, The Eng. Col. in Am., vol. 3, pp. 229-237; Palfrey, Hist, of New Eng- 




, by 

D. Stone, published in Carson's History of the Celebration of Hundredth An- 
niversary of the Promulgation of the Constitution of the U. S., vol. 2, pp. 
439-503. * * Lf 



36 NEW HAMPSHIRE PROVINCE LAWS. 

association of the New Hampshire towns from the Massa- 
chusetts Bay colony, and their establishment as a royal prov- 
ince. The causes which led to this result have been analyzed 
by the historians of New Hampshire and New England, and 
are clearly defined in these authorities. The beginnings of 
New Hampshire as a separate province were accompanied by 
grants of powers of legislation, and a full investiture with 
the responsibilities of a separate government, subject to the 
regulative and restrictive control of the mother country.^ 

Tedb Transition Period. 

The royal edict in 1679, separating the New Hampshire 
towns from the union with Massachusetts, which had contin- 
ued thirty-eight years, marked the beginning of the end of 
an era. The New England commonwealths, which had been 
developed at this time to such proportions and on sjuch lines 
of political progress as the student of colonial history observes 
at this period, were attracting the jealous attention Df the 
Stuart ministries on account of their manifest tendencies 
towards independence. In respect to their municipal rights 
and privileges they were so strongly intrenched in the New 
England town system that they were there practicably im- 
pregnable. There was not the same security, however, for 
the federalized governments which had been developed on 
the basis of charters granted by the crown, or crown corpo- 
rations created for the purpose of colonizing America. 

Various causes had been in operation to convince the home 
government of the necessity for radical measures to counter- 
act or control that policy of home rule which was manifest in 
the Puritan colonies, and which presaged such an ultimate 
assertion of colonial rights as might be destructive of the 
sovereignty of the mother country. 

As the erection of a province government for New Hamp- 
shire in 1679 marks the beginning of a transition period, so 
the grant of a new charter to Massachusetts Bay and Ply- 
mouth Colony, united as Massachusetts in 16^1, and the- 
restoration of a province government to New Hampshire, 
one of the same group of events, d eliminate the later boundary 
of this period. The establishment of the province of New 
Hampshire in 1679, the abrogation of the charter of Massa- 
chusetts Bav in 1684, the abolition of colonial assemblies in 
five New England colonies, and the temporary establishment 
of the Dominion of New England in the three years of 1686-7, 
1687-8, and 1688-9 are the most conspicuous milestones in the^ 

*This epoch in New Hampshire has been treated, among others, by Mr. 
Doyle and Mr. Tuttle, and their chapters on the causes which operated iik 
the establishment of a sepnrn^p r»rovince government are given in fuU in» 
this volume, Appendix E, pp. 770-785. 



SOURCES AND ANTBCKDENT8. 37 

final progress of the autocratic policy of the Stuart govern- 
ments towards the New England colonies to an extreme that 
could be reached but not maintained. 

With the abdication of James the Second in 1688 the pre- 
posterous governmental scheme that had been erected for the 
people of New England, and against the protests of the great 
majority of them, collapsed at once upon the removal of the 
exterior sui)ports upon which its existence depended. 

There was in these years a strong and determined party in 
New Hampshire acting in opposition to Robert Tufton Mason, 
and his rovalist and anti-Puritan adherents. Mason was the 
able, resourceful, and indefatigable successor in the legal con- 
trol and active management of the property and rights of the 
first proprietor. 

In Massachusetts a similar party had maintained a steady 
opposition to the local loyalist leaders, among whom Edward 
Randolph was the most consistent, the most active, and the 
most dangerous.^ 

Mr.* Doyle has pointedly characterized the policy of sep- 
arating the New Hampshire towns from Massachusetts, and 
reorganizing them into a feeble province on the most exposed 
frontier of New England. "The settlers were exasperated^ and 
with justice, at their severance from Massachusetts. They 
may have had no special sympathy with that colony. But 
no position could be more wretched than that of a little, iso- 
lated, and independent settlement, in the middle of a line of 
frontier constantly threatened by savages. The very nature 
of the attack made matters worse. If the danger had been 
that of invasion and permanent occupation, then the interests 
of Massachusetts and New Hampshire would have been iden- 
tical, and the weaker colony would have been sure of help. 
But the war which France was waging was not, as yet at 
least, a war of conquest. It was a war of partial and local 
destruction. The more efficient was the defense along the 
frontier of Massachusetts, the more certain was it that the 
tide of invasion would hurl itself against the one undefended 
district. We may well believe that the petition for a system 
of joint defense under a general governor came from those 
inhabitants of New Hampshire who were, from past associ- 
ation, hostile to Massachusetts, and yet felt the helplessness 
of their own colony, isolated under a proprietor."^ 

The project of reunion was thwarted by the interested 
efforts of Mr. Mason. His motives and purpose were personal. 
The efforts of Randolph, his coadjutor, though induced, per- 
haps, by different considerations, were directed to the same 

*Tiit tie's Historical Papers; Andros Papers, 3 vols., published by the 
Prince Society. 

"Doyle, English Ck)lonies in America, vol. 3, p. 329; id., post, Appendix E, 
II, p. 780. 



88 NBW HAMPSHIRB PROVINpB LAWS. 

end. Both based their appeals to the crown upon the urgent 
necessity of curtailing the ominously increasing political 
power of Massachusetts Bay. 

The Earl of Bellomont, in his correspondence with the 
Lords Commissioners of Trade and Plantations a few years 
later, thus describes the policy of Mason and the coterie that 
had purchased the Masonian title after the death of Kobert 
Tufton Mason in 1688: 

"And for a conclusion I humbly and earnestly recommend 
the vacating of Colonel Allen's pretension to New Hamp- 
shire, and all other claim derived from Mason which . . . are 
an abomination and a mystery of iniquity.''^ 

The reaction from the extreme measures which took form 
and effect in the commission, instructions^ and administra- 
tion of Governor Andros failed to restore the New England 
colonies to the independent status to which they had attained 
prior to 1679. Massachusetts Bay, Plymouth, and Maine^ 
united as Massachusetts by the new charter of 1691, regained 
the right of representation for the towns in the general court, 
a limited law-making power, and the autonomy of the town» 
as the primary units of government. But they were required 
to submit to the provision in the new charter for the appoint- 
ment of a governor by the crown, instead of being suffered to 
elect their own chief magistrate according to the custom 
which had been previously established. Several other points 
in the readjustment of the relations of the home govern- 
ment with the government of the colonies were important 
and are familiar to those who have reviewed the course of 
events in this period. Not the least noteworthy of these pro- 
visions were the regulation of the right of appeal from the 
judgments of the colonial courts, and the explicit require- 
ments relative to the transmission of colonial laws for review 
by the privy council. 

The settlement of this new system of colonial administra- 
tion, which was introduced in New Hampshire in 1679 and 
restored here in 1692, and in which Massachusetts finally ac- 
quiesced in 1691-92, was very nearly in point of time midway 
between the immigration of the Pilgrims in 1620 and the com- 
mencement of the War for Independence in 1775. An era 
in colonial affairs was concluded in 1692. Then a new book 
was opened in the account between Britain and her Amer- 
ican plantations. The specifications on the part of New 
Hampshire to cover the first ten years of the last half of the 
colonial period are deducible from the records and collateral 
authorities which relate to the administration of government 
in the province under the commissions of Samuel Allen and 

*2 Province Papers, 355; id,, Palfrey, 'History of New England, vol. 4, p. 217» 



80URCKS AND ANTBGBDENT8. 89 

the Earl of Bellomont. The final summary was drawn by 
Thomas Jefferson in 1776.^ 

In this province the enquiry as to whether William and 
Mary, their ministers and parliaments, had fairly met the obli- 
gations that were imposed .upon them„ as the responsible 
heads of a constitutional monarchy, in the then existing rela- 
tions with their colonies, brings in issue the character and fit- 
ness of the royal governors and their deputies and lieutenants, 
the sufficiency of the measures employed and means provided 
for the protection and defense of these outposts of English 
enterprise and racial extension, the consideration that was 
accorded the province laws submitted for confirmation or 
rejection, the bestowal of the governorship uppn Mr. Allen 
and Mr. Usher, under circumstances in which they stood as 
contestants with the people in respect to ownership of the 
principal part of the. lands lying within the boundaries of the 
province, and the restriction of the trade of the province to 
the home market in England or to designated provinces under 
the provisions of the navigation acts.^ 

It is not difficult to trace serious causes of disaffection ex- 
isting in the first years (1692-1702) of the restored province 
government, and persistent to the culmination of the aggre- 
gate of discontent in the revolution of 1775. 

CJoLONiAL Supervision and Administration in the 

Home Government. 

The entire management of colonial affairs until after the 
revolution of 1688 was in the control of the king and the privy 
council. As early as 1636,® however, there seems to have 
been a committee or board variously referred to as Commis- 
sioners of Plantations, Lords Commissioners of Plantations* 
or Committee for Foreign Plantations,^ whose especial duty it 
was to give counsel in colonial matters. A special Commis- 
sion for Plantations was appointed on November 24, 1643, by 
the Long Parliament®; and again under date of March 2, 
1650, appears the following: 

"Order of the Council of State. The whole Council, or any « 
five of them to be appointed a Committee for Trade and Plan- 
tations.^'^ Soon after the restoration, December 1, 1660^ 

^Poore, Charters and Constitutions, ed. 1878, part 1, pp. 3-5; Hill, Liberty 
Documents, 1901, pp. 183-187. 

'A compilation of the acts of parliament which related to the government 
and affairs of the American colonies, with appropriate comments, is a desid- 
eratum in the literature of the jurisprudence of the colonial period. 

■Calendar of State Papers, (Colonial), 1574-1674, § 176. 

Vd., § 193. 

Ud., § 338. 

•Calendar of State Papers (Colonial), 1574-1660, p. 324. 

Vd., p. 335. 



40 NEW HAMPSHIRE PROVINCB LAWS. 

Charles the Second appointed a Council for Foreign Planta- 
tions, composed of thirty-five members from the privy council, 
the nobility, gentry, and merchants.^ The duties of this 
council, like those of its predecessors, were only advisory; 
but they were instructed to inform themselves of the state 
of the plantations and their governments, to write to all the 
governors and patentees, requiring a report of their afifairs, 
of the nature of the laws, number of men, fortifications, etc. 
"To adopt means for rendering those ddminions and England 
mutually helpful. ... To inquire into the government of the 
colonies of foreign states, and apply what is good and prac- 
ticable to the English plantations. To call experienced mer- 
chants, planters, seamen, etc., to their assistance." It was 
also their duty to provide orthodox ministers for the planta- 
tions, and to consider how the natives and slaves might be 
made ready for baptism in the Christian faith.^ "The pro- 
ceedings of this commission are fully recorded, and reveal an 
astonishing activity in colonial questions, indicating the new 
place which these affairs occupied in English policy."^ 

Early in 1675* Charles the Second dissolved the Council of 
Trade and Plantations, doubtless another name for the Coun- 
cil for Foreign Plantations; and on March 12, 1675, all busi- 
ness relating to the colonies was committed to a committee 
of the privy council. Five members were to constitute a 
quorum. They were to hold weekly meetings and report 
from time to time to the king.** This committee exercised 
about the same authority as the Council of thirty-five had 
done; but in 1696, after the House of Commons had come to 
take a more prominent part in industrial and colonial ques- 
tions, a Board of Trade was appointed to promote trade and 
to inspect and improve the plantations.® This board, after 
nearly a century, developed into the Colonial Department.'' 

The Cutt Code, 1680, 1681. 

No better evidence exists of the inapplicability and inad- 
equacy of the laws of England in their entirety, when em- 
ployed without modification in practical experiments in gov- 

^Calendar of State Papers (Colonial), 1661-1668, p. viii. 

Ud., 1574-1660, pp. 492, 493. 

"Woodward, The Expansion of the British Empire, 1899, p. 138. 

^Calendar of State Papers (Colonial), 1675-1676, § 429. 

»7d., §§ 460-464. 

•Doyle, English Colonies in America, vol. 3, p. 323. 

^In the notes which accompany the documents and acts contained in the 
principal text of this work, and in the Appendix, it is quite possible that 
the terms descriptive of these several boards, commissions, and committees 
may have been inaccurately applied as regards the time of one or more of 
those organizations. Such an occasional anachronism will hardly be mis- 
leading, as the date will indicate correctly the particular official body 
to which allusion is made. 



SOURCBS AND ANTECEDENTS. 41 



• 



ernment in the ncnv world, than the unyielding insistence of 
the colonial legislatures in the exercise of the law-making 
power for their own constituencies. The president, council, 
and deputies, constituting the general assembly of the prov- 
ince of New Hampshire, immediately upon their assumption of 
oflBice, addressed themselves to this task of providing the peo- 
ple of the province with a body of laws adapted to local neces- 
sities, and at length produced what is commonly known as the 
"Cutt Code." Its provisions were necessarily drawn with ref- 
erence to the experience of the members of the general assem- 
bly in dealing with colonial conditions in the period that had 
intervened since the New Hampshire towns, fifty years pre- 
viously, had built up local governments for themselves. Un- 
doubtedly these legislators had in solicitous consideration, 
also, in devising and adapting the provisions of their laws, the 
Masonian claim and all the possibilities that were involved in 
its reassertion against the property and people of New Hamp- 
shire. 

In the past the opinion seems to have been quite gener- 
ally entertained that the body of laws known as the "Cutt 
C5ode" was taken in its entirety, or for the gi*eater part, from 
the laws of Massachusetts Bay colony. Reference is made 
in notes which appear later in this volume {posty p. 10) to the 
statement of Mr. A. H. Hoyt in his "Notes, Historical and 
Bibliographical, on the Laws of New Hampshire," to the 
effect that that portion of the Cutt laws which relates to 
crimes is copied in substance from the laws of Plymouth 
Colony and not from those of Massachusetts Bay. This asser- 
tion is verified by a comparison of these two series of laws. 
The sources of the civil part of the "Cutt Code" are not so 
certainly ascertainable. Several sections were undoubtedly 
transcribed from the contemporaneously existing laws of 
Massachusetts Bay. Other articles are quite dissimilar from 
the corresponding ones in the Bay colony laws, while others 
still which appear in the "Cutt Code" are not found in the 
laws for that period of either Massachusetts or Plymouth. 

It appears in the narrative of proceedings in the province 
of New Hampshire which was transmitted to the home gov- 
ernment in 1681 (17 State Papers, 555-59, abstract, posty p. 
786), that the writer made this assertion: "They [the assem- 
bly in the time of Cutt] have made a law to confirm the laws 
of Massachusetts colonv and the title to lands derived from 
that authoritv." 

The basis for this statement is doubtless to be found in the 
"Cutt Code,'- article [1], post, p. 23, and article [14], post, p; 
28. It will be observed that the article relating to the con- 
firmation of town grants, etc., had peculiar reference to New 
Hampshire affairs, and that it was well calculated to excite 
the most serious antagonism of the representatives of the 



42 NBW HAMPSHIRE PBOVIKGB LAWS. 

• 

Masonian interests. A similar provision reappears in stat- 
utes enacted in the time of Partridge, chapter 19, pp. 693, 
695, 696, post; notes relative to same acts, posty pp. 649, 650. 

The provision for the continuance of the pre-existing laws, 
so far as they were necessary to provide for exigencies that 
might not have been contemplated in the enactments of the 
new code, was not an extraordinary or unusual act of colonial 
legislation. Orders issued in the time of the presidency of 
Joseph Dudley and of the governorship of Sir Edmund An- 
dros, posty p. 249, are directed apparently to the same purpose. 

Keferring to this body of laws known as the "Cutt Code,'' 
Secretary Chamberlain, in a letter to Mr. Blathwayt of date 
May 14, 1681, remarks as follows: "The whole system in gen- 
eral being collected mostly out of the Massachusetts laws.'' 

Although this statement is somewhat qualified, it is suf- 
ficiently broad to have been the possible origin of the opin- 
ion that was long current as to the origin of this particular 
series of New Hampshire laws. In the same communication 
Mr. Chamberlain continues: "Surely it could not well stand 
with the mind and pleasure of His Majesty that we here 
should cast off obedience to their [Massachusetts Bay's] 
jurisdiction and voluntarily submit to, and yoke ourselves 
so inseperably to their laws." 

No further remarks need be made on the subject in this 
connection, except to call attention to the fact that the laws 
of these three colonies, which were in operation at the time 
when the first body of New Hampshire laws had been 
enacted, are now conveniently accessible; and the student 
of comparative jurisprudence who is desirous of pursuing the 
subject further will find the material ample for his inves- 
tigations.^ 

The events that led up to the establishment of the province 
government, and the interests that were active in the accom- 
plishment of this result, are prominent features of the his- 
torical setting in which the first province government and 
the first body of province laws are placed.^ 

The importance of this epoch in the statutory history of 
the province has rendered recourse to the contemporary au- 
thorities, and the more recent critical treatment of the sub- 
ject, appropriate to the present work in connection with the 
presentation of this Code, and, indeed, indisp'ensable. 

The auxiliary articles which are found in the appendix, 
and the notes which accompany the principal text of the 

*See General Laws and Liberties of Massachusetts, 1672, in Whitmore*s 
Colonial Laws, ed. 1887; General Laws and Liberties of New Plymouth, 1671, 
in Brigham*s Plymouth Colony Laws, 1836; Laws of Connecticut, Reprint of 
the Original Edition of 1673, with Prefatory Note, by G. Brinley, Hartford, 
privately printed, 1865; Cutt Code, this volume, post, pp. 9-47. 

*Doyle, English Colonies in America, vol. 3, p. 294. 



SOURCES AND ANTECEDENTS. 43 

laws of the time of the C5utt and Waldron administration, will 
afford the reader immediate access to the approved author- 
ities, or citation to them.^ 

The Oranfield C5ode and the Essays of the Lieutenant- 
Governor AND His CJouncil in Legislation without 

THE Ck)-OPERATION OF THE HOUSE OF EePRESENTATIVES. 

This period was brief, but replete in important events. It 
marks a striking transition from the conservative policy of 
the Cutt and Waldron administration to the offensive and 
arrogant misgovernment of Cranfield, Barefoote, and Mason. 
As regards the laws of the province it was apparently as- 
sumed to be incumbent on the general assembly to formu- 
late and adopt a new code. Such a body of laws was 
speedily adopted by the two new houses of the assembly, and 
' approved by the lieutenant-governor. It now transpires from 
an inspection of the contemporary correspondence of himself 
and his secretary with the home government that both of these 
oflScials were intriguing for the disallowance of these laws, to 
the enactment of which they had ostensibly given cordial ap- 
probation. Early in this administration the lieutenant-gov- 
ernor became pecuniarily interested (and it is not impossible 
that he was a partner from the beginning) in the Masonian 
claim, and a co-operating agent in its enforcement against the 
people over whom he was the appointed chief magistrate, and 
over whose interests he should have been a disinterested and 
impartial guardian. His attitude, however, soon became 
notorious. His cynical frankness left no room ifor doubt as 
to his relations with Mason. His assembly broke with him 
before the end of the first year, and refused to grant him any 
revenues or even to assemble for any purpose, either at his 
request or upon his command. His conduct disclosed no 
tact, no disinterested purpose, and no regard for the propri- 
eties of his position. A selfish and mercenary spirit was the 
principal characteristic of his policy. The body of laws 
which was enacted in the first year of his administration is 
commonly known as the "Cranfield Code." Upon the refusal 
of the house of representatives to co-operate with him in legis- 
lation for any purpose (except in a single instance, upon the 
urgent initiative of the home government, when the passage 
of an act against pirates was secured) he construed his com- 
mission as giving himself and his council authority to legis- 
late without the concurrence of a house of representatives. 
The events of this administration have proven unusually at- 
tractive to the historians of the colonial period, and their 
treatment of this part of it is voluminous and exhaustive. 
The acts of the time of Cranfield and his deputy, Walter 

'Principal text of this volume, post, pp. 1-47; Appendix E, post, pp. 770-785. 



44 KEW HAiMPSHIRB PROVINCE LAWS. 

Barefoote, are given in full in the text. An unusual number 
of duplicates, or different renditions, of the, ^^Cranfield Code" 
have been preserved in manuscript through the industry of 
the lieutenant-governor and his secretary in making their 
contemporary transmissions, according to the requirements 
of the commission, to the home government. These have 
been presented in such manner as to identify each copy, as 
far as practicable, in point of time and in its proper relation 
to contemporary events. Other papers which serve to add 
to a correct understanding of this particular chapter of the 
province legislation are presented in the appendix.^ 

Original manuscript copies of what we now describe as 
the "Cutt Code" and the "Cranfield Code" have survived from 
the time of their enactment in the archives of the province 
and state, of New Hampshire. There is evidence, however, 
that the most accomplished jurists of the state a hundred 
years ago were not aware of their existence. In a collection 
of extracts from the writings of Chief Justice Jeremiah 
Smith, edited by his son, Jeremiah Smith, now a professor in 
the Harvard Law School, and published in 1879, in the vol- 
ume known as Smith's Decisions, the editor remarks as fol- 
lows in a marginal note: 

"In a . . . charge to the grand jury. Judge Smith ex- 
pressly stated that he had never been able to find the codes 
of law enacted by the New Hampshire Assembly in 1679-80 
and in 1682."^ 

As stated in the notes accompanying the acts of the time 
of Cutt and Cranfield, no definite evidence has been dis- 
covered in the English archives to determine whether the 
laws known as the "Cutt Code" and the "Cranfield Code" 
were formally disallowed by the king in council. That ques- 
tion still remains unsettled. 

It is not open to question, however, that the laws enacted 
by the general assembly by authority of the Outt commis- 
sion were to remain in force until the king's pleasure in re- 
spect to them might be announced, after their submission to 
and examination in the privy council. If, therefore, it is not 
shown that such laws were changed or disallowed by the king 
in council, it must be admitted, by virtue of the royal edict 
declared in that commission, that they were to be considered 
as remaining in operation until the king's pleasure should be 
made known to the contrary. (Cutt commission, post^ p. 6.) 

^Principal text of this volume, postj pp. 48-92; Appendix F, post, pp. 788-809. 

^Decisions of the Superior and Supreme Courts of New Hampshire, from 
1802-1809, and from 1813-1816, Selected from the Manuscript Reports of the 
Late Jeremiah Smith, Chief Justice of Those Courts, with Extracts from 
Judge Smith's Manuscript Treatise on Probate Law, and. from His Other 
Legal Manuscripts, p. 529, note 2. See also statement by Salma Hale, Judi- 
cial History of New Hampshire before the Revolution, Monthly Law Report- 
er, October, 1855; Id., reprint, 3 Grafton and Coos Bar Association Proceed- 
ings, 64. 



SOURCBS AND ANTECEDENTS. 45 

The next question will be as to their repeal or amendment by 
subsequent legislation in the general assembly of the prov- 
ince; and, finally, in the absence of sufficient evidence of such 
repeal, or any amendment, a question would arise involving 
the presumption of repeal by lapse of time and disuse. The 
legal effect of an apparently general disregard of these partic- 
ular laws in the time of the later administrations is pre- 
. sented for consideration. There is evidence that they had, at 
a date not long subsequent to that of their passage, become 
obsolete, if, indeed, they had not been generally and correctly 
supposed by contemjyoraries to have been positively disal- 
lowed by the king, the record of the fact being nftw lost or 
buried in the ancient archives of state. (Note preliminary 
to the laws enacted under the commission of Samuel Allen, 
post, p. 518.) It may be remarked that the theory of implied 
repeal of statutes by disuse does not receive much encour- 
agement in the authorities. (Dwarris on Statutes, ed. 1871, 
p. 154.) Under the Cranfield commission {post, p. 50), while 
the language to the point is not quite as explicit as it is in 
the Cutt commission, it is evidently the expressed intention 
that the laws passed by tjae lieutenant-governor, with the 
advice and consent of the council and assembly, were to con- 
tinue until disallowed by the king in council. Pending the 
consideration of the laws passed in the first part of the gov- 
ernment of Lieutenant-Governor Cranfield, and by him trans- 
mitted to the home government, it would seem that the 
opinion which he entertained was contrary to the one above 
ventured. He plainly suggested that the laws which he had 
passed ought to be disallowed. He says, "Meantime I gov- 
ern them by the laws of England." {Post, p. 58.) The impli- 
cation here seems to be that he did not regard the acts, which 
he himself had approved and sealed, as valid and operative 
until approved by the king. In the instructions accompany- 
ing the Andros commission, 1686, {post, p. 157) it is stated 
that "all laws, statutes, and ordinances within our territory 
and dominion of New England shall continue and be in full 
force and vigor, so far forth as they do not in anywise contra- 
dict, impeach, or derogate from our commission, orders, and 
instructions, until such time as, with the advice and consent 
of the council, you [the governor] shall pass other laws for 
the good government of our said territory and dominion, 
which you are to do with all convenient speed." This is 
assuredly evidence of a recognition of the laws previously 
enacted in the colonial legislatures of New England as still 
valid. The commission and instructions to Governor Andros 
have always been regarded, from the New England point of 
view, as an arbitrary and far-reaching encroachment upon the 
rights of local self-government established here by the colo- 
nists, and which they had successfully maintained from the 



46 NEW HAMPSHIRE PROVINCE LAWS. 

period of the first settlements down to 1679. Yet the con- 
cession in the instructions allowing the "laws to continue in 
force till others should be made," and the article in the com- 
mission which directed that the governor and council should 
enact "laws and statutes and ordinances ... as near as con- 
veniently may be agreeable to the laws, statutes, and ordi- 
nances of this our Kingdom of England," are certainly of a 
conservative character, and, considered apart from other and 
admittedly obnoxious provisions of the Andros commissions, 
they do not sustain the extreme arguments that have been ad- 
vanced to the effect that the laws in force in the time of the 
inauguration of the Andros government were summarily re- 
peal^ by royal edict, or by any act of the legislative council 
of the Andros government. Article 10 of the Andros instruc- 
tions and Article 14 of the Cutt Code, it will be observed, are 
very similar in terms and legal effect. 

The Laws of England and the Compilations in Use in 
THE First Years of the Province Government, 1679- 
1686. 

It appears from the New Hampshire correspondence pre- 
served in the English archives that a copy of some edition of 
the statutes of England was in the custody of the province 
government as early as May 14, 1681, when Mr. Secretary 
Chamberlain employs these words in a letter to the Lords of 
Trade and Plantations: "the King having sent a great Vol- 
ume of Laws copiously and accurately done to their hands." 
Mr. Chamberlain's argument was that, inasmuch as this 
book of laws was available to the officials of the province, 
the formulation and enactment of other and local laws for 
the province was entirely unnecessary. Lieutenant-Gover- 
nor Cranfield, in a letter of October 22, 1682, referring to the 
administration of the oaths of office to his councillors, says 
that "wanting the Statute Booke could not Subscribe ye 
Test, which was don th^ next meeting." The inference from 
this statement must be that a "Booke" was produced on the 
occasion which is referred to as the "next meeting." It will 
doubtless be found advantageous to identify the particular 
edition or editions of the English statutes employed by those 
who had to do with the compilation of the earliest codes of 
New Hampshire province law, or which were certainly 
.accessible to them. Among the collections of statutes which 
had been published in the years recently prior to the estab- 
lishment of the Cutt presidency in 1679, were the two de- 
scribed as follows: 

(1) A collection of all the statutes now in use by F. Pulton 
. . . with a continuation of the statutes ... of Charles the 
First . . . and . . . Charles the Second ... to the last ad- 



SOUKCKS AND ANTECEDENTS. 47 

journment of parliament April the 11 th, 1670. As also, a 
necessary table or Kalendar to the whole work ... by P. 
Manby, B. L., pp. 1537. 

Assigns of J. Bell and O. Barker; London, 1670, fol. 

(British jNLuseum Catalogue, 506, n. 1.)^ 

(2) The Statutes at Large in paragraphs from Magna 
Charta until this time (27 Charles II) carefully examined by 
the Rolls of Parliament with the titles of such statutes as 
are expired, repealed, altered or out of use. Together with 
the heads of Pulton's or RastalPs abridgments on the margin, 
and the addition of above five hundred new references from 
other books of law and a new table. By J. Keble, B. L., pp. 
1472. 

Assigns of J. Bell and C. Barker; London, 1676, fol. 

(British Museum Catalogue, p. 506, n. 2.)^ 

The special importance of these two editions is that the 
first seems to have been in actual custody and use by the Cutt 
administration in this province (1 Province Papers, 383); and 
the other was the edition used in the home government in the 
preparation of the commission and instructions to Lieutenant- 
Governor Cranfield. By comparing the above citations, 
p. 383, lines 5, 6, and 7, with Pulton's Collection, edited 
by Manby, 1670, copy in the British Museum, it will be 
noted that in that collection (i. e., Manby's Pulton) the 
marginal citation or annotations to chapt. 29, p. 4, where 
the text of the act of 9 Henry III is printed, afford the proof, 
due allowance being made for wrong punctuation and other 
clerical errors in the American manuscript and printed copy 
of the Cutt code, that the writer of the paragraphs appearing 
in the last part of page 382 and at the top of page 383, 1 Prov- 
ince Papers, must have had the text of Manby's Pulton before 
him. It was undoubtedly Manby's Pulton (ed. 1670) that Mr. 
Chamberlain referred to as the *^Great Volume" of the laws 
of England that was in the possession of the Outt government 
in the province of New Hampshire, 1679 to 1681. (Letter, 
Richard Chamberlain to Wm. Blathwayt, May 14, 1681.) 
This is the earliest printed book that can be regarded, on 
our present information, as having ever belonged to a state 
library of the province of New Hampshire. Passing on in 
the text of 1 Province Papers, it will be observed on page 
444, at a point which appears to be at the conclusion of the 
text of Lt. Gov. Cranfield's instructions, prepared in England, 
of course, by the officials of the home government, that quo- 
tation is made from the act of 16 Charles I, Statute Book, p. 
1108, section 5; '^Be it likewise declared, etc." There is con- 
clusive internal evidence that Keble's edition, 1676 (and not 

*See also this volume, post. Appendix A, II, pp. 726-736. 



48 NEW HAMPSHIRB PROVIKCK LAWS. 

Manby's Pulton), was the one from which this extract was 
made from the ''Statute Book" by the officers of the colonial 
department of the home government in England in the 
spring of 1682. The language quoted appears on p. 1108 of 
Keble's ed., 1676. Furthermore, the citations to ch. 29, 9 
Henry III, Keble's ed., p. 4 (1676), are more numerous than the 
corresponding citations to the same act in Manby's Pulton 
(1670), p. 4. This fact also identifies the edition of 1676 as 
the one from which quotation was made for the text found on 
p. 444, 1 Prov. Papers. In addition to the foregoing evidence 
of identification is the fact that the citation, 16 Charles I, is 
an error which appears in and is peculiar to Keble's ed. It 
should have been named as 17 Charles I. As the error which 
appears in Keble's edition, 1676, is repeated in the tran- 
scripts, 1 Prov. Papers, 444, ai^ additional proof is afforded 
that the home government, in 1682, in its Cranfield corre- 
spondence, was using Keble's ed. of the Statutes at Large, 
while the same considerations also tend directly to the con- 
clusion that the Cutt government, in the formulation of the 
Cutt code, and Secretary Chamberlain in his correspondence 
in 1680, were making use of the Manby's Pulton edition of the 
Statutes, 1670, and that this edition was the qne in posses- 
sion of the province government in the period of 1679 to 1681. 

It is presumable, moreover, that the same volume continued 
to be the most important printed book in the province library, 
if not the only one, for an indefinite time in that part of the 
colonial period, unless, as is quite possible, a copy of Keble's 
edition was added by transmission from England in 1682, 
accompanying the instructions to Lieutenant-Governor Cran- 
field. 

If, as indicated by the title lines, post, p. 57, a compilation 
containing the passage as quoted from the Statute Book, 
p. 1108, section 5, was forwarded with the instructions to 
Lieutenant-Governor Cranfield, that volume was undoubt- 
edly a copy of Keble's edition of 1676. While it seems that 
there is little room for mistake in these conclusions, it is not 
disputable that a question may be raised as to why the ed[i- 
tion of 1676 should not have been the one in use in our prov- 
ince in 1679 and 1680 instead of the edition of 1670; and why a 
later edition than that of 1676 should not have been in evi- 
dence in the preparation of the instructions to Cranfield in 
1682. These are suggestive questions, but not of superior 
importance unless the answers should impair the validity ot 
our conclusions as to the identity of the editions used re- 
spectively by the Cutt government in 1679 and 1680, and by 
the officers of the home government in 1682, for the purpose 
already considered in this monograph. There may have 
been at that time a longer period actually intervening be- 



80URGBS AND ANTEGBDBNT8. 49 

tween the date assigned to the book on the title page and the 
date of its actual issuance from the hands of the publishers 
than would be expected in bringing out similar works in 
these days. These considerations, liowever, may be post- 
poned at this time for further historical investigation, as they 
are not essential to the inquiries as to which edition of the 
statutes of England was the subject of reference on pp. 383 
and 444, Province Papers, vol. 1. 

It is to be regretted that the identical copies of these com- 
pilations, Manby's edition of 1670 and Keble's edition of 
1676, could not have been preserved in the archives of the 
province, and thence transmitted to the present library of the 
state. ^ 

The Dominion op New England. The Period of Law- 
making BY A Council Appointed by the Grown, 1686- 
1689. 

The remarkable experience of the people of New Hamp- 
shire in the four years of the co-operative administration of 
Cranfield and Mason served to reconcile them to almost any 
prospective or possible change of government. The colonies 
of New Plymouth, Massachusetts Bay, Connecticut, and 
Rhode Island might well regard with dismay the prospect of 
an extension of such a system and such methods over a con- 
solidated New England as Lieutenant-Governor Cranfield 
had represented and exploited in New Hampshire. In the 
events which followed the inauguration of the government 
of the Dominion of New England, under the preliminary 
administration of the Dudley presidency and council, and the 
permanent administration of Sir Edmund Andros, the peo- 
ple of New Hampshire encountered and experienced condi- 
tions in favorable contrast with those which obtained from 
1682-1686; while the people of the other colonies had the 
nearer perspective which their own experience in colonial self- 
government had afforded. The relations of this province to 
the government of New England are necessarily involved 
with those of the other colonies, and are not easily differen- 
tiated from the complex politics of that important transi- 
tional period. The record is extended in that part of the text 
of this work which is devoted to the Dominion of New Eng- 
land, with a view to a complete presentation of the legisla- 
tion of the period, to be read in connection with the commis- 
sions and instructions issued to those to whom the govern- 
ment was committed. Original documents are included in 
this collection which have not heretofore appeared in Amer- 

*An original copy of Keble's edition has been recently procured for the 
state library at Concord, and efforts are being made to add an original copy 
of Manby's edition of 1670. 



50 HEW HAMPSHIRE PROVIKGB LAWS. 

lean publications.^ The material for this part of the work 
has been sought in the archives at Washington, Philadelphia, 
and London,^ and in all the states which, in their early colo- 
nial status, were included in the Dominion of New England. 

New Hampshire without a Pbovincb Goveenment, 1689- 

1690. 

This brief but historically interesting interval is specially 
noteworthy in one particular, if in no others. It illustrates 
the adaptability of the New Hampshire system of town gov- 
ernment, as then developed, in meeting the strain of serious 
emergencies in government. At this time a revolution was 
in progress in the mother country, and another in the Domin- 
ion of New England. All external governmental functions 
had ceased to be operative in relation to these towns. 
Years of experience in the exercise of local powers and meth- 
ods, however, had made the people of these towns intelligent 
and self-reliant masters both of practical and theoretical 
civics. An interesting product of this exigency was the plan 
of confederation which was formulated by the leading men 
of the towns, but which failed through the refusal of a con- 
trolling party in the town of Hampton to ratify it. The in- 
strument indicates the views of representative men of the 
four towns on various practical questions in statecraft. The 
document is a comparatively recent discovery. The notes of 
Judge Bell and the monograph of Mr. Tuttle, which consti- 
tute Appendix I, reflect the results of careful, critical, and 
competent investigation of this unique but somewhat obscure 
period in the political history of the province, the article of 
Mr. Tuttle being directed more specifically to the form of 
government proposed in the articles of confederation, and 
to the history of the ancient document which, it appears, had 
been preserved for some two hundred years in the papers 
of his family.* 

The Period of the Second Union of the New Hampshire 
Towns with Massachusetts Bay, 1690-1692. 

Without the contribution which the Massachusetts 
archives afford for the statutory history of the province of 
New Hampshire, a hiatus of more than two years would have 
existed in the otherwise continuous record of legislative en- 
actments actually operative here under successive govern- 
ments. The problem of selection, from a large mass of rec- 
ords, of that which was pertinent to a collection of statutes, 
resolves, and orders for this province was one of no little 

^Post, pp. 93, 146, 155, 644, 830, 859. 

'Principal text of this volume, post, pp. 98-258; Appendix H, post, pp. 829-842. 

^Principal text of this volume, post, pp. 259-266; Appendix I, post, pp. 643-847. 



SOURCES AND ANTBGBDBNT8. 51 

difficulty. The rules of inclusion and exclusion adopted and 
applied in the compilation are stated and explained in the 
notes which precede the abstracts for the so-called inter- 
charter period. The necessity for the presentation of exten- 
sive transcripts from these records is emphasized by the fact 
that the Whitmore compilations of Massachusetts Bay stat- 
* utes, which were published in 1887 and 1889, contained 
nothing later than 1684, the year of the abrogation of the 
first Massachusetts Bay charter, while the Goodell series of 
the Province Laws of Massachusetts begins with the acts of 
the general court upon the inauguration of a government 
in 1692, which included both Massachusetts Bay and Ply- 
mouth Colony under the second charter. It will be observed 
that the entire period between the termination of the Andros 
administration in April, 1689, and the beginning of that of 
Sir William Phipps in 1692, is included in this work.^ 

The legislation of the general court of Massachusetts Bay 
in the period which intervened between the termination of 
the Andros government in the spring of 1689 and the begin- 
ning of that inaugurated in the spring of 1692, under the 
charter of 1691, was somewhat tentative, and none of the 
acts, resolves, or orders of those three inter charter years are 
to be found in the form of engrossed acts in the archives of 
the commonwealth. 

The Province Government of New Hampshire Revived 
AND TbE Legislative Assembly Restored, 1692. 

The extended notes relating to the governments adminis- 
tered from 1692 to 1699 under the commission of Samuel 
Allen, and from 1699 to 1702 under the commission of Ihe 
Earl of Bellomont, and the statutes enacted by the general 
assembly in that period, render superfluous a further elabo- 
ration of the same subject in this introductory statement. 

The most logical as well as the most convenient point of 
division between the material to be employed in this volume 
and that intended to be incorporated in the next in order in 
the series is at the termination of the government under the 
Bellomont commission, and the beginning of that under the 
last commission to Joseph Dudley.^ 

The Province Legislature. 

At the time of the establishment of the province of New 
Hampshire the conflict between the people of the Massachu- 
setts Bay colony and the home government was well advanced, 
involving the issue whether the existing charter government 
should be retained, or something more in conformity with the 

^Principal text of this volume, pofit, pp. 267-498. 

■Principal text of this volume, postf pp. 499-709; Appendix J, post, pp. 856, 
857. 



52 NEW HAMPSHIRE PROVINCB LAWS. 

present policy of the king substituted. The form of govern- 
ment prescribed in 1679 for New Hampshire cannot, in the 
light of the events of the succeeding ten years, be regarded as 
fairly indicating, if, indeed, it even suggested what was to 
be the nature or extent of the repressive measures in contem- 
plation by the Stuarts in the event of a general change of the 
forms and principles of colonial government in the other New 
England plantations. In the government established by the 
Cutt commission two legislative branches are recognized, the 
members of one appointed by th^ crown, and the members 
of the other elected by the people. This legislative body, 
which from the beginning of the province is styled the gen- 
eral assembly, was authorized to enact laws, the house of 
deputies proceeding with the advice and consent of the presi- 
dent and council. (Post^ p. 6.) The Cranfleld commission had 
a similar provision, but in terms somewhat more explicit and 
somewhat more in detail. It was stated in the legislative 
article that the lieutenant-governor, with the advice and con- 
sent of the council and assembly, should have power to make 
laws, etc. {Post, p. 50.) One noteworthy difference between 
the Outt commission and the Cranfleld commission, at the 
point under consideration, is that, in the flrst, predom- 
inance in the law-making body is apparently, if not intention- 
ally, given to the deputies, while in the second, or Cranfleld 
commission, the order is reversed, the council and deputies 
being subordinated to the lieutenant-governor. 

The popular branch of the assembly is not recognized by 
the commissions for the Dominion of New England, 1686-1689. 
That element in the legislative history of the colonies is the 
subject of special comment in the notes, pp. 93, 100, 144, and 
182 of this volume. The annual election of deputies in the 
time of the Cutt government was provided for by Article 44 
of the Cutt Code. {Post^ p. 37.) The annual meeting of the 
general assembly was in like manner flxed for the flrst Tues- 
day of March. The veto power and the right to dissolve the 
general assembly were flrst committed to a New Hampshire 
governor in speciflc terms by the Cranfleld commission. {Postj 
p. 51.) The same powers reappear in the Allen commission 
(post, p. 504) and in the Bellomont commission {post, p. 614). 
In the earlier commissions there is some confusion in the em- 
ployment of the term "general assembly," and some uncer- 
tainty as to its application. This will be observed in a com- 
parison of the use of the term in the Cutt commission, the 
Cranfleld commission, and in the enacting clauses of the act 
of 1692, which is chapter 1, p. 524, post, and the act which is 
chapter 2, p. 526, post. Finally, however, it is evident that the 
relations of the governor, council, and representatives, as parts 
or branches of the legislative body, were made certain and 



SOtTRCRS AND ANTBCBDEKTS. 53 

became fixed in the time of Bellomont and Partridge/ The 
first act of that administration {postj p. 653) contains the for- 
mula, — "enacted by his Excellency the Governor, Council, and 
Eepresentatives, convened in General Assembly." Some au- 
thorities make a distinction between laws and acts, assigning 
one of these terms to the original enactments of a colonial 
legislature, and the other to those only which may have been 
confirmed by the king in council. This distinction has not 
been followed in this work, as the uncertainty which still 
exists as to whether certain of the earlier acts were confirmed, 
disallowed, or ignored renders the attempt to apply it in many 
instances impracticable. The methods provided in determin- 
ing the limits of time occupied by each consecutive general 
assembly, and assigning to each its proper number in regular 
chronological order, are explained in notes to the later text 
of this volume. {Post, pp. 9, 523.) 

The constituencies of the first province legislatures were, in 
regard to the extent of the population, even after a lapse of 
fifty-six years from the time of the first settlement, still of 
very limited proportions. Article 9 of the Cutt Code {postj 
p. 25) restricted the franchise in the election of deputies to 
electors who were qualified in all the following particulars, 
viz.: by being Englishmen and Protestants; by having taken 
the oath of allegiance to His Majesty; by having been duly ad- 
mitted to the liberty of being freemen of the province (the class 
legally termed freemen in New Hampshire not being limited 
by church membership); by being twenty-four years of age, 
not vicious of life but honest and of good conversation; and 
by possessing £24 of ratable estate. It is stated by Mr. Tut- 
tle, Historical Papers, p. 186 (this volume, post, p. 776), that 
the population of the province at this time was only about 
4,000. (See also Dow's History of Hampton, p. 99.) Mr. Ban- 
croft estimates the population of New Hampshire in 1688 as 
6,000. 1 Histoij U. S., ed. 1883, p. 608. It is a valuable fea- 
ture of the surviving records that presents the full text of the 
order of the president and council of February 16, 1679-80, 
designating the persons in each of the four towns authorizes 
to vote for deputies to be members of the first general assem- 
bly. This list appears in this volume, post, pp. 13, 14, 15. 

The term "general court," which is now the official desig- 
nation of the state legislature of New Hampshire, is a colonial 
survival, derived, as is the same term employed in the Massa- 
chusetts constitution, from the terminology of the first legis- 
latures of the colonial period. The origin of that term must 
be sought in the history of other English institutions as well 

• ^"The Colonial Origins of New England Senates/' byF. L. Riley, is the 
title of an instructive paper, appearing in Series 14, Johns Hopkins University 
Studies in Historical and Political Science. Id. pamphlet edition, part devoted 
specially to New Hampshire, pp. 40-63. 



54 NBW HAMPSHIRE PROVINCE LAWS. 

as colonial legislatures. The term "general assembly," as 
descriptive of the legislative body in this province, is correctly 
applied only in the period from 1679 to 1775. The general 
assembly ended with the province government. 

The Tables of Regnal Years and of Official Suc- 
cession. 

The tables which precede the principal text of the commis- 
sions and statutes are included in the compilation, in order to 
obviate, as far as practicable, the inconvenience of frequent 
resort to works of reference by those who have occasion 
to use a volume of this character for the identification 
of the dates intended by the mention of regnal years against 
the text of the English and colonial statutes. It is assumed, 
also, that a like useful purpose would be subserved in placing 
the tables of regnal succession, and the years covered by each 
colonial administration, in equally accessible place and ar- 
rangement for reference in the introductory divisions of the 
volume. 

The Continuation of the Series. 

The material for a second volume of the laws of the prov- 
ince, intended to be arranged and presented on a plan similar 
to that adopted for this volume, has been collected, and con- 
siderable progress already made in putting it in orderly form 
for printing and publication. 

The Commissions and Instructions Governing the Prov- 
ince Administrations and Province Legislation. 

Inasmuch as the commissions and instructions which were 
from time to time issued for the direction of the governors of 
the province are to be regarded, until revoked or modified, as 
the organic law governing the exercise of all the powers of 
executive, legislative, and judicial administra^tion, more 
space than is usually assigned to that class of colonial docu- 
ments, in the recent compilations of province laws by other 
states, has been devoted to them in this work. The assem- 
bling of these documents for each administration has been 
as complete as possible in all cases wherein the student 
might be expected otherwise to find difficulty in consulting 
them. The exceptions include such documents as the first 
and second colonial charters of Massachusetts, which can 
readily be consulted in a number of works published by the 
commonwealth of Massachusetts and the federal government, 
and which have been widely circulated. 



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