General Court of Massachusetts Bay Colony

“ The legislative and judicial methods of the several governments are of the first importance to the understanding of New England history, for it was a slow process by which it came to pass that professional lawyers held any shaping hand in the making or the administering of laws. The first Superior Court of Massachusetts under the provincial charter had not a single trained lawyer on the bench, and its assembly was equipped more with persistency and shrewdness in working out its struggle with the crown officer who tried to rule them than with legal acquirements. ”

“ The limits of Massachusetts, both as to territory and jurisdiction, were expressed by precisely the same words as those contained in the charter of 1628. Upon these words, the grantors had impressed a certain meaning, no matter for this purpose whether the ordinary or an extraordinary meaning. The grant of 1628, unlike a grant of property, was revocable in its very nature. A grantee of jurisdiction, or other political power, holds by no other tenure than the discretion or caprice of the granting power. Massachusetts existed as a colony during the will and pleasure of the king and council. ”

“ If the first be ruled against the complainant, the second must fall as a consequence. And as regards the first ground, little need be added to what has already been said. The charter is of doubtful construction, and may, without doing violence to its language, be construed in favor of or against the position of the complainant. In this view, the construction of the charter by Massachusetts, assented to by the old colony of Plymouth, many years before Connecticut or Rhode Island had a political organization, is an important fact in the case. ”

“ The statute of Massachusetts and the act of congress resemble each other in many other respects. Each authorizes 'the person entitled to the premises' to recover possession by complaint to a justice of the peace. Each authorizes the complaint to be in general terms,-in Massachusetts, alleging that the defendant is in possession of the land, and holds it unlawfully, and against the right of the plaintiff; in the District of Columbia, 'charging a forcible entry or detainer of real estate.' Each requires the summons to be served seven days before appearance. ”

“ The ambitious pretensions of Massachusetts to an extension of her jurisdiction over New Hampshire and Maine, the territorial rights to which were in Mason and Gorges, arose out of the fact, that, after 1636, the inhabitants of New Hampshire, being destitute of the powers of government, petitioned the General Court of Massachusetts to be taken under their government and protection. Massachusetts refused to grant these petitions for a number of years. She had erected her bound-house three miles north of the Merrimack proper. ”

“ Instead of being venerable before the public they become contemptible.'
The Superior Court of Massachusetts, as we have already stated, is a court of general jurisdiction, and is clothed by statute with authority to admit and to remove attorneys-at-law. The order removing the plaintiff was made by the court, and not by the judge in chambers. ”

“ There is nothing in any act of Congress, or in the nature of the rights themselves, to give them locality anywhere, so as to subject them to the process of courts having jurisdiction limited by the lines of States and districts. That an execution out of the Court of Common Pleas for the County of Bristol, in the State of Massachusetts, can be levied on an incorporeal right subsisting in Rhode Island or New York, will hardly be pretended. ”

“ It would be much nearer the truth to say that divorce here has always been regulated wholly by the common or unwritten law. Prior to 1658 not a word of Statute Law was enacted touching divorce in the Old Bay Colony, and not a word of Statute Law touching divorce was ever at any time enacted in Plymouth Colony. It is understood, however, that the Court of Assistants, which was established in Massachusetts in 1639, exercised the divorce power before the same was conferred upon it by any express grant ”

“ The colonists of Massachusetts had no such blind prejudice against the Canon Law, or the Church of England, or the Church of Rome, as prevented them from adopting whatever they found therein which their consciences and their reason approved. So far from cherishing an unreasoning prejudice against the Ecclesiastical Courts, the people of Massachusetts have preserved, in their Probate Courts, substantially the same system of law and substantially the same method of procedure which were followed in the Consistory Court of London, and in the Consistory Court of Rome ”

“ Rhode Island gained by it a large accession of territory—the towns of Bristol, Tiverton, Little Compton, Warren and Cumberland, which were incorporated and brought under the control of Rhode Island laws. Thus ten new deputies were added to the colonial representation. Thus, also, a revision of the judicial and military system of the Colony became necessary, and a new court was established under the title of Superior Court of Judicature, Court of Assize and General Jail Delivery, and consisting of a chief-justice and four associate justices annually chosen by the Assembly. ”

“ But when it is admitted by the demurrer, that she never acquiesced, and has, from time to time, made efforts to regain the territory, by negotiations with Massachusetts, and was prevented, by the circumstances she mentions, from appealing to the proper tribunal to grant her redress; we cannot undertake to say, that the possession of Massachusetts has been such as to give her a title by perscription; or that the laches and negligence of Rhode Island have been such as to forfeit her right to the interposition of a court of equity. ”

“ State courts are governed by the common law, and not the law maritime. The decisions of one State, moreover, are not binding on another, and thus there would be no uniformity. Whilst the regulation of the commerce of the country was in the hands of the federal government, if its courts had no jurisdiction over commercial questions which might arise out of that commerce, there would be one law in New York, another in Massachusetts, and a third in some other State. ”

“ The current has been so strong that in Massachusetts, where counsel are admitted to have the right to argue the law to the jury, it has yet been held that the jury have no right to decide it, and it has also been held, by a majority of the court, that the legislature could not constitutionally confer upon the jury the right to determine, against the instructions of the court, questions of law involved in the general issue in criminal cases ”

“ Mather will have a zealous hand in promoting so gracious a work if it may be thought expedient to attempt it." (Collections of the Massachusetts Historical Society, First Series, Vol. V., pp.200, 201.)
The "glorious work" advised by Dr. Watts was not "attempted," and the "cruel and persecuting statutes passed by the Congregational Court of Massachusetts Bay were never repealed by any "public authority" of that colony, but were tacitly annulled and superseded by the provisions of the "new Charter" of King William and Mary in favour of toleration and civil liberty." ”

“ The Massachusetts authorities had thus utilized the request of one faction in a settlement wholly outside their own limits, to extend their jurisdiction. They had attempted, upon a charge of heresy directed against persons living in another colony, to murder the entire body of the opposing faction, after refusing the arbitration proposed by that faction's own enemies. When the decree was finally softened to banishment, this was held to include exclusion of the prisoners from their former homes, now considered as part of the Bay Colony. ”

“ Although this was not done, Massachusetts was told to let the province alone, [59] and the whole episode could not fail to impress the English government more forcibly than ever with the necessity of establishing a greater degree of local royal control. Soon after, the same suggestion of a Supreme Court was made in the curious case of a Connecticut Indian, who had made his way to England to complain both of fraud against himself and of the general treatment of his race by the colonists, against whom, he claimed, it was impossible to secure justice in the colonial courts. ”

“ No other title gives, or was ever pretended to give, any right to the British crown to make conveyance of land or empire, jurisdiction or sovereignty, in this new world. By discovery or by conquest, possession was obtained, and hence possession became ultimate right. When this possession was parted with, the right was lost, at least, in effect, against all the rest of mankind but the royal authority. Now, this possession was lost to the crown, and was gained by Massachusetts, before the colony of Rhode Island was planted, or her charter drawn upon parchment. ”

“ Plymouth, liberal already, has grown more lenient towards church offenders in matters of conscience. Mr. John Brown, a citizen of Rehoboth, and one of the magistrates, has presented before the Court his scruples at the expediency of coercing the people to support the ministry, and has offered to pay from his own property the taxes of all those of his townsmen who may refuse their support of the ministry. This was in 1665. Massachusetts Bay has tried to correct the errors of her sister colony on the subject of toleration, and has in turn been rebuked by her example. ”

“ An unlimited authority to the commissioners of each colony, by the legislature of each colony, to ascertain and settle the line. 4th. An actual settlement, by an agreement, signed and sealed by the commissioners, so far as to fix a point of beginning; and to establish Woodward and Saffrey's monument as such point. 5th. That this settlement was a compromise; Massachusetts yielding one mile of soil in fee, and Rhode Island withdrawing all claim to jurisdiction over the disputed territory. And the bill further admits a second commission, arbitrament and award, or more properly, a treaty ”

“ These courts are held by the judge of probate and insolvency appointed for the county; but the judges of the several counties may, in ease of necessity or convenience, interchange services.
Local Government. The General Court establishes municipal governments in towns exceeding 12,000 population, with the consent and upon the application of a majority of the inhabitants. All bylaws of such city governments, however, are at all times subject to annulment by the General Court. Sheriffs, registers of probate, and clerks of the courts are elected by the people of the several counties. ”

“ That it cannot operate to transfer four miles of the acknowledged territory of Rhode Island, because Rhode Island, as a colony, had no power to transfer her jurisdiction to Massachusetts.
3. That no confirmation can be presumed, because a confirmation of a void agreement is void itself.
4. Because a confirmation must have been of record in England, and also in Massachusetts, if not in Rhode Island; and that no case has gone the length of presuming the loss of a record, without some foundations being first laid to support such presumption. ”

“ Here he incurred the hostility of the authorities of the Massachusetts Bay Colony by asserting, among other things, that the civil power of a state could properly have no jurisdiction over the consciences of men, that the King's patent conveyed no just title to the land of the colonists, which should be bought from its rightful owners, the Indians, and that a magistrate should not tender an oath to an unregenerate man, an oath being, in reality, a form of worship. ”

“ Massachusetts is the last State in the Union to which any enlarged comity should be extended in regard to the recognition of her insolvent laws, and of titles thereby created. In 1854 the Supreme Court of that State decided that an assignment of property in that Commonwealth, made in New York by an insolvent citizen of New York, to a trustee for the benefit of creditors, giving preference to certain creditors, also citizens of New York, is ineffectual as against an attachment made in Massachusetts by a citizen thereof. ”

“ Massachusetts, then, in establishing the above station of Woodward and Saffrey, and in running the line, does not seem to have acted precipitately, without authority or in disregard of the rights of other colonies.
The misconstruction of the charter, in going more than three miles south of Charles River, is earnestly insisted on by complainant's counsel. If the words of the charter were clear and unequivocal in this respect, there would be great force in this argument. ”

“ If it be assumed that the statutes of the two States have been enacted with a view to reciprocity in operation, nothing is shown which can be taken to alter their essential character as mere legislation and to create an obligation which either State is entitled to enforce as against the other in a court of justice.
The suggestion that residents of Massachusetts are entitled to the immunity offered by the Missouri statute is unavailing, as Massachusetts may not invoke our jurisdiction for the benefit of such individuals. ”

“ If there be no such law, and if he is suffering no such deprivation, we need not be curious in explanation of the particular ground of our exercise of jurisdiction.
The statutes of Massachusetts have provided since 1851 that 'when a final judgment in a criminal case is reversed by the supreme judicial court on account of error in the sentence, the court may render such judgment therein as should have been rendered, or may remand the case for that purpose to the court before which the conviction was had.' Acts 1851, chap. 87; Pub. Stat. chap. ”