64 HISTORY OF THE COLONIES. [BOOK I.
§ 78. Having gone into a full consideration of the origin and political
organization of the primitive colonies in the South and North, it remains
only to take a rapid new of those, which were subsequently established in
both regions. An historical order will probably be found as convenient for
this purpose, as any, which could be devised.
§ 79. In November, 1629, Capt. John Mason obtained a grant from the
council of Plymouth of all that part of the main land in New-England "lying
upon the seacoast, beginning from the middle part of Merrimack river, and
from thence to proceed northwards along the sea-coast to Piscataqua river,
and so forwards up within the said river and to the furthest head thereof;
and from thence northwestwards until three score miles be finished from the
first entrance of Piscataqua river; and also from Merrimack through the
said river and to the furthest head thereof, and so forwards up into the
lands westwards, until three score miles be finished; and from thence to
cross over land to the three score miles and accounted from Piscataqua
river, together with all islands and islets within five leagues distance of
the premises."1 This territory was afterwards called NewHampshire. The
land so granted was expressly subjected to the conditions and limitations
in the original
CH. IV.] NEW-HAMPSHIRE. 65
1 1 Haz. Coll. 289; I Holmes's Annals 199; 1 Belk. N. Hamp. ch.1, p. 18.
patent; and there was a covenant on the part of Mason, that he would
establish such government therein, and continue the same, " as shall be
agreeable, as near as may be, to the laws and customs of the realm of
England;" and that if charged with neglect, he would reform the same
according to the discretion of the president and council; or in default
thereof, that the aggrieved inhabitants, or planters, tenants of the lands,
might appeal to the chief court of justice of the president and council. A
further grant was made to Mason by the council of Plymouth about the time
of the surrender of their charter, (22 April, 1635,) "beginning from the
middle part of Naumkeag river [Salem], and from thence to proceed eastwards
along the sea-coast to Cape Ann and round about the same to Piscataqua
harbour; and then covering much of the land in the prior grant, and giving
to the whole the name of NewHampshire."1 This grant included a power of
judicature in all cases, civil and criminal, " to be exercised and executed
according to the laws of England as near as may be," reserving an appeal to
the council. No patent of confirmation of this grant appears to have been
made by the crown after the surrender of the Plymouth patent.2
§ 80. Various detached settlements were made within this territory; and
so ill defined were the boundaries, that a controversy soon arose between
Massachusetts and Mason in respect to the right of sovereignty over it.3
In the exposition of its own charter Massa-
66 HISTORY OF THE COLONIES. Book I.
1 1 Haz. Coll. 383, 384, 385; 1 Chalm. Annals, 472, 473, 477; 1 Belk.
N. Hamp. ch. 1, p. 27.
2 1 Hutch. Hist. 313, 314; Marsh. Colon. ch. 3, p. 97.
3 1 Hutch. Hist. 101, 108, 109, 311, 312, to 318.
chusetts contended, that its limits included the whole territory of
New-Hampshire; and being at that time comparatively strong and active, she
succeeded in establishing her jurisdiction over it, and maintained it with
unabated vigilance for forty years.1 The controversy was finally brought
before the king in council; and in 1679 it was solemnly adjudged against
the claim of Massachusetts. And it being admitted, that Mason, under his
grant, had no right to exercise any powers of government, a commission was,
in the same year, issued by the crown for the government of New-Hampshire.2
By the form of government, described in this commission, the whole
executive power was vested in a president and council appointed by the
crown, to whom also was confided the judiciary power with an appeal to
England. In the administration of justice it was directed, that " the form
of proceedings in such cases, and the judgment thereon to be given, be as
consonant and agreeable to the laws and statutes of this our realm of
England, as the present state and condition of our subjects inhabiting
within the limits aforesaid, and the circumstances of the place will
admit."3 The legislative power was entrusted to the president, council, and
burgesses, or representatives chosen by the towns; and they were authorized
to levy taxes and to make laws for the interest of the province; which laws
being approved by the president and council were to stand and be in force,
until the pleasure of the king should
CH. IV.] NEW-HAMPSHIRE. 67
1 Chalm. Annals, 477, 484, 485, 504, 505; Marsh. Colon. ch. 4, p.
109, ch. 6, p. 167, 168; 3 Hutch. Coll. 422; 1 Belk. N. Hamp.ch. 2,
p. 49, 50.
2 1 Chalm. Annals, 489, 490; 1 Hutch. Hist. 319; 1 Holme's Annals, 395;
Marsh. Colon. ch. 6, p. 168; Robert. America, B. 10; I Belk. N.
Hamp. ch. 6, p. 137,138; 1 Doug. Summ. 28; N. Hamp. Prov. Laws,
Edit. 1771, p. 1, &c.
3 N. Hamp. Prov. Laws (Edit. 1771,) p. 1, 3.
be known, whether the same laws and ordinances should receive any change or
confirmation, or be totally disallowed and discharged. And the president
and council were required to transmit and send over the same by the first
ship, that should depart thence for England after their making. Liberty of
conscience was allowed to all Protestants, those of the Church of England
to be particularly encouraged. And a pledge was given in the commission to
continue the privilege of an assembly in the same manner and form, unless
by inconvenience arising, therefrom the crown should see cause to alter the
same.1 A body of laws was enacted in the first year of their legislation,
which, upon being sent to England, was disallowed by the crown.2
NewHampshire continued down to the period of the Revolution to be governed
by commission as a royal province; and enjoyed the privilege of enacting
her own laws through the instrumentality of a general assembly, in the
manner provided by the first commission.3 Some alterations were made in
the successive commissions; but none of them made any substantive change in
the organization of the Province. The judicial power of the governor and
council was subsequently, by law, confined to the exercise of appellate
jurisdiction from the inferior courts; and in the later commissions a
clause was inserted, that the colonial statutes should "not be repugnant
to, but as near as may be agreeable, to the laws and statutes of the realm
§ 81. The laws of New-Hampshire, during its pro-
68 HISTORY OF THE COLONY. [BOOK I
1 1 Chalm. Annals, 489, 90: 1 Holmes's Annals, 395; 1 Belk. N. Hamp.
ch. 6, p. 138, 139; 2 Belk. N. Hamp. Preface; N. Hamp. Prov. Laws,
(Edit. 1771,) p. 5.
3 1 ChaIm. Annals, 491, 492, 493, 508.
4 N. Hamp. Prov Laws, (Edit 1771,) p. 61, and Id.
vincial state, partook very much of the character of those of the
neighbouring Province of Massachusetts. Those regulating the descent and
distribution of estates, the registration of conveyances, the taking of
depositions to be used in the civil courts, for the maintenance of the
ministry, for making lands and tenements liable for the payment of debts,
for the settlement and support of public grammar schools, for the
suppression of frauds and perjuries, and for the qualification of voters,
involve no important differences, and were evidently framed upon a common
model. New-Hampshire seems also to have had more facility, than some other
colonies, in introducing into her domestic code some of the most beneficial
clauses of the acts of parliament of a general nature, and applicable to
its local jurisprudence.2 We also find upon its statute book, without
comment or objection, the celebrated plantation act of 7 & 8 William 3, ch.
22, as well as the acts respecting inland bills of exchange, (9 & 10
William 3, ch. 17,) and promissory notes, (4 Ann, ch. 9,) and others of a
less prominent character.
1 N. Hamp. Prov. Laws, (Edit. 1771,) 19, 22, 55, 90, 105, 143, 157,
163, 137, 166.
2 N. Hamp. Prov. Laws, (Edit. 1771,) 209; Gov. Wentworth's Commission