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Ill 
 
 COLONIAL ORIGINS 
 
 NEW ENGLAND SENATES 
 
JOHNS HOPKINS UNIVERSITY STDDIES 
 
 IN 
 
 Historical and Political Science 
 
 HERBERT B. ADAMS, Editor 
 
 History Is past Politics and Politics are present History — lyeeman 
 
 FOURTEENTH SERIES 
 III 
 
 COLONIAL ORIGINS 
 
 NEW ENGLAND SENATES 
 
 By F. L. RILEY, A. M. 
 
 Fellow in History, J. H. U, 
 
 baltimore 
 The Johns Hopkins Press 
 
 PUBLISHED MONTHLY 
 
 MARCH, 1896 
 
COPTEIGHT, 1896, BY THE JOHNS HOPKINS PeESS. 
 
 JOHN HUBPH7 A 00., PEDJTEES, 
 BALTIUOEE, 
 
CONTENTS. 
 
 PAGE. 
 
 Intboductiok 7 
 
 Chapter I. — Massachusetts. 
 
 Section I. — Governmental Beginnings 9 
 
 Section II. — The Executive Function 11 
 
 Section III. — The Judicial Function 16 
 
 Section IV. — The Legislative Function 18 
 
 Section V.— The Proposed Constitution of 1778 23 
 
 Section VI.— The Constitution of 1780 25 
 
 Chapteb II. — Connecticut. 
 
 Section I. — Governmental Beginnings 28 
 
 Section II. — The Executive Function 31 
 
 Section III. — The Judicial Function 33 
 
 Section IV. — The Legislative Function 36 
 
 Section V.— The Constitution of 1818 38 
 
 Chapter III. — New Hampshire. 
 
 Section I. — Governmental Beginnings 40 
 
 Section II. — The Executive Function 41 
 
 Section III. — The Judicial Function 43 
 
 Section IV. — The Legislative Function 46 
 
 Section V.— The Constitution of 1776 48 
 
 Section VI.— The Proposed Constitution of 1779 51 
 
 Section VII.— The Proposed Constitution of 1781 51 
 
 Section VIII.— The Constitution of 1783-4 52 
 
 Chapter IV. — Rhode Island. 
 
 Section I. — Governmental Beginnings 64 
 
 Section II. — The Executive Function 59 
 
 Section III. — The Judicial Function 60 
 
 Section IV. — The Legislative Function 64 
 
 Section V.— The Constitution of 1842 66 
 
 5 
 
6 Contents. 
 
 Chaptek V. — Conclusions. page. 
 
 Section I. — Origin of the New England Senates 69 
 
 Section II. — Forces Which Gave Direction to their Development. 
 
 1. Limitation of the Number of Counsellors 72 
 
 2. Extent of Authority and Growth of the Colonies 72 
 
 3. Illogical Principle upon which Power was Distributed 73 
 
 4. Introduction of the Idea of a Complete Sepaartion of the 
 
 Functions of Government 74 
 
 5. Inter-Colonial Influences 74 
 
 6. English Charters and Precedents 74 
 
 Season III. — Inherited Characteristics of the Senates. 
 
 1. Size 76 
 
 2. Personnel 76 
 
 3. Basis of Selection 76 
 
 4. Term of Office 76 
 
INTRODUCTION. 
 
 The American Senates, like all other great institutions, are 
 not the products of invention but of growth ; a growth, too, 
 which required more than a century to mature. They appear 
 in our early State Constitutions as the results of a series of 
 evolutions which are synchronous with our colonial history. 
 This research is designed to trace ultimately^ the successive 
 steps of this development from its inception in colonial insti- 
 tutions to its final results as embodied in our State and Federal 
 Constitutions. It is undertaken with the desire of determin- 
 ing, as far as practicable, the different forces which have given 
 direction to this growth and the relative effect of native and 
 foreign influences in the formation of the finished product. 
 Since the greater part of this study is confined to a period 
 antedating the separation of governmental functions, it neces- 
 sitates a more or less comprehensive treatment of all the 
 departments of colonial government. The Colonial Councils, 
 from which the State Senates evolved, originally exercised a 
 power which was three-fold, — executive, judicial and legisla- 
 tive. In the course of time, however, they lost their executive 
 and judicial authority, as is shown in the following pages, and 
 were thus merged into State Senates in the present sense of 
 the word. 
 
 ^ The present study, however, is confined to the New England colonies, a 
 continuation of the work being reserved for a future publication. 
 
 7 
 
COLONIAL ORIGINS OF NEW ENGLAND 
 SENATES. 
 
 CHAPTER I. 
 
 Massachusetts. 
 
 Section I. — Governmental Beginnings. 
 
 Historians and jurists of rare ability have subjected the first 
 charter of the Massachusetts Bay Colony to the most searching 
 analyses in order to determine the nature and extent of the 
 power which it conferred upon the patentees. The conclusions 
 which have been reached on this point are by no means har- 
 monious. Some maintain that the charter conferred no powers 
 apart from those exercised by ordinary trading corporations, 
 and that it was therefore totally inadequate for the establish- 
 ment of a commonwealth in a foreign land ; ^ while others, no 
 
 ^ Lodge's Short History of English Colonies in America, 41 2 ; Oliver's Puritan 
 Commonwealth, 52, 76; Massachuselis Historical Soc. Proceedings, 1869, 166-188. 
 An excellent account of the limitations of this instrument is also given in 
 Brooks Adams' Emancipation of Mass., Ch. I. " Some of the best politicians 
 and lawyers, after the Revolution, Somers, Holt, Treby and Ward noted the 
 following defects in this charter : That being originally granted to a great 
 company resident in England, it was wholly inapplicable to the circum- 
 stances of a distant colony, because it gave the body politic no more 
 jurisdiction than every other corporation within the Kingdom ; that no 
 authority was conferred to call special assemblies, wherein should appear 
 the delegates of the people, because representation was expressly excluded 
 
 9 
 
10 Colonial Origins of New England Senates. [102 
 
 less eminent, contend that the colonists in erecting a civil 
 government upon this basis neither violated the laws of 
 England nor transgressed the limits of their prerogatives as 
 defined in the charter.^ However this may be, the transfer 
 of the charter to the colony in 1630 afifected the political status 
 of the Assistants, or Counsellors very materially, since in the 
 inevitable confusion arising out of this shifting of the seat of 
 government, they were able to exchange the vaguely defined 
 powers of the charter for a more substantial authority based 
 upon the political necessities of the colony. Hence their power 
 developed with astonishing rapidity.'' From " directors of a 
 
 by the clause requiring the presence of the freemen in the General Courts ; 
 that no pernaission was given to raise money either on the colonists or on 
 strangers trading thither, because the King could not give an authority 
 which he did not himself possess ; that it did not enable the legislative 
 body to erect various judicatories, either of admiralty, or probate of wills, 
 or of chancery, because that required such a special grant as did not here 
 exist." (Neal's History of New England, ed. 1741, II, 105-6; Chalmer's 
 Political Annals, I, 141-142). 
 
 * Prof. Joel Parker, the successor of Judge Story in the Cambridge Law 
 School maintains the following theses which he supports by a series of 
 cogent arguments: (1) That "the charter 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 settlement of a colony, with power in 
 the corporated company to govern that colony " ; (2) " The charter author- 
 ized the establishment of the government of the colony within the limits of 
 the territory to be governed as was done by vote to transfer the charter and 
 government"; (3) "The charter gave ample power 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 legislative power" ; (4) " The charter authorized 
 the creation and erection of courts of judicature to hear and determine 
 causes and to render final judgments and cause execution to be done without 
 any appeal to the courts of England." {Mass. and Its Early History, Lowell 
 Institute Lectures, 1869, 357-439). For further arguments pro and con 
 on this subject see Ellis' Puritan Age in Mass., Ch. VII; Adams' Emanei- 
 paiion of Mass., Ch. I. 
 
 • Within a few months three important acts were passed which gave the 
 Assistants powers that transcended the limits defined by the charter. 1. At 
 the first General Court held at Boston in October, 1630, the freemen, 
 
103] Massachusetts. 11 
 
 company," with a limited term of office as contemplated by 
 the charter/ they soon rose to the dignity of magistrates ^ with 
 practically a life-tenure of office. Another short step made 
 them virtual "rulers of a commonwealth" with all the depart- 
 ments of government under their control.^ 
 
 Section II. — The Executive Function. 
 
 In the exercise of executive power, however, they acted 
 more in accordance with the provisions of the charter than 
 
 through the influence of the newly arrived Governor and Assistants (Hutch- 
 inson's Hist, of 3/ass., I, 30), who had been chosen in England {lb., 20), 
 delegated to the Assistants the privilege of choosing from among themselves 
 " a Goun'^ & Deputy Goun'', whoe w'*" the Assistants should haue the power 
 of makeing lawes & chuseing officers to execute the same;" and retained 
 for themselves only the power of choosing Assistants " when they are to 
 be chosen." {Mass. Col, Rec., I, 79.) Of course the practical result of this 
 last clause was a life-tenure for the Assistants. (Hutchinson, 1, 30 ; Palfrey's 
 Compendious Hist, of New Eng., T, 123 ; Winthrop's Hist, of New Eng., I, 85 ; 
 Hubbard's Hist, of New Eng., 147). 2. Six months later it was voted that 
 these extraordinary powers which had been granted the Assistants might 
 be exercised by five or even a less number {Mom. Col. Rec, I, 84), though 
 the charter required at least six Assistants and either the Governor or 
 Deputy Governor to constitute a quorum {lb., 11). 3. Two months later 
 (May 18, 1631), it was enacted that for the future "it shalbe lawfull for 
 the Comons to ppounde any pson or psons whome they shall desire to be 
 chosen Assistants, & if it be doubtfull whith"^ it be the greaf pte of the 
 comons or not, it shalbe putt to the poll. The like course to be holden 
 when they, the said comons, shall see cause for any defect or misbehav' to 
 remoue any one or more of y^ Assist*"." {Mass. Col. Rec., I, 87.) The 
 obscurely-worded sentence which seems to have been appended as " a rider" 
 at the end of an act that would have been otherwise very liberal, created a 
 precedent for a permanent tenure of the magistracy, " since it required the 
 invidious and difficult process of a vote for the confirmation or removal of 
 Assistants already in office" (Palfrey, I, 123; Winthrop, I, 85). Hence 
 " the dignities, the emoluments and for a considerable time, the powers of 
 the government were monopolized by ten or twelve persons." {PuriUin 
 Com., 55 ; Hutchinson, I, 293, note). 
 
 ^Mass.Col.Rec.,l,\0,\'2.. 
 
 * Grahame's Col. Hist, of U. S., I, 162 ; Puritan Com., 55, 56. 
 
 ^ See Prof. G. H. Haynes' Representation and Suffrage in Alass., 1620-1691, 
 J. H. U. Studies, Twelfth Series, VIII-IX, Ch. 2. 
 
12 Colonial Ch'igins of New England Senates. [104 
 
 when assuming the other functions of government. It is 
 probably due to this cause that they were enabled to keep 
 strictly intact, throughout the colonial period, this alone of all 
 their original powers. 
 
 The first charter vested the executive function in the Gov- 
 ernor, Deputy Governor and eighteen ^ Assistants or Counsel- 
 lors.^ Their general duties pertained to the transactions of 
 "matters in the absence of the General Court." ^ Further 
 details as to time and place of meeting, as well as the specific 
 nature and scope of their duties, were to be determined as the 
 exigencies of the colony might demand. Randolph, writing 
 about 1676, says that the Council met in its executive capacity 
 twice every week, and as often besides as it was convened by 
 the Governor.* 
 
 ^ This number was not chosen, however, at any one time in the first fifty 
 years after the transfer of the charter to the colony in 1630. ( Palfrey, II, 
 233). During the earlier years from six to nine were generally chosen, 
 vacancies being left for men of note who might come over. (Palfrey, I, 
 149; Hutchinson, 1,44-5). In 1658 the number was limited by law to 
 fourteen. {Mass. Col. Eec., IV, 1 pt. 1, 347). This law was repealed in 1641, 
 yet the practice remained the same. {lb., 347 ; pt. 2, 32 ; 468, Palfrey, 
 II, 28). On the next year Charles II demanded that not more than 
 eighteen nor less than ten Assistants be chosen annually. {Mass. Col, 
 Bee., IV, pt. 2, 32; Perry's Hist. Papers of the Amer. Col. Church, 35). A 
 special election was held in October 16, 1678, to bring the number up to 
 eighteen in compliance with a demand of the home government. {Mass. 
 Col. Bee., V, 195). July 24, 1679, the King demanded " that the ancient 
 number of Assistants be henceforth observed as by charter." (Hutchinson, 
 I, 293; Chalmers, I, 451). This was observed until 1686 {Mass. Col. Bee., 
 V, 513), when the government passed into the control of a President and 
 Council appointed by the Crown. {Conn. Col. Bee., Ill, 207, note). 
 
 * Savage (Winthrop, II, 207, note) observes that without the Assistants 
 " the Governor would have been nothing and with them his power seems 
 to have been hardly more than that of primus inter pares." He presided 
 over the sittings of the Council and was entitled to one vote at all times, 
 and two when there was a tie. {Ibid; Hutchinson, II, 15; Palfrey, III, 
 71-2, 74; Barry's Hist, of Mass., II, 16, 17). 
 
 ^Mass. Col. Bee., I, 10; Chalmers, 137, 436. 
 
 * Randolph's Presemt State of New England, published in Perry's Historieal 
 Papers of the American Colonial Church, 2-3; Washburn's Judicial History of 
 Massachusetts, 23. 
 
105] Massachusetts. 13 
 
 Yet the exercise of this authority, as broadly outlined in the 
 charter/ did not go unchallenged. Before the details of the 
 Council's power could become crystallized into precedents 
 which could be cited as historical grounds for its activity, 
 it encountered the opposition of the Deputies. The latter 
 attempted first to gain admittance to the executive Council, 
 but failing in this, they tried to make it strictly dependent 
 upon the General Court.^ This acrimonious contest was finally 
 settled by referring the matter to the elders — the sacred oracles 
 of the colony — who, as usual, declared in favor of the patri- 
 cians. Hence the composition and powers of the Executive 
 Council remained in statu quo. The Deputies, frustrated in 
 their first attempt to share the executive function with the 
 Council, then resorted to various schemes, by which they still 
 hoped to diminish its powers.^ 
 
 ^ Chalmers' Political Annals, 137 ; Mass. Col. Rec, I, 10. 
 
 *The first conflict arose in 1643, when the General Court committed the 
 affairs of the colony during its recess to the Magistrates and the Deputies 
 of Boston, Charlestown, Cambridge, Roxbury and Dorchester. {^Mass. Col. 
 Rec., II, 46). This addition of Deputies to the Executive Council was 
 opposed by the Magistrates, who contended that it was an infringement 
 upon their charter rights. The controversy was renewed the next year 
 when the Deputies made a proposition that the General Court issue commis- 
 sions " whereby power was given to seven Magistrates and three Deputies 
 and Mr. Ward (some time pastor of Ipswich and still a preacher) to order 
 all affairs of the commonwealth in the vacancy " of that body. ( Winthrop, 
 II, 204-5). They contended in support of this act that " the Magistrates 
 had no power out of the General Court but what must be derived " from it. 
 This proposition was also rejected by the Assistants as " an innovation upon 
 the charter." They were then tendered "a commission for war only," 
 which they likewise rejected. They also refused to suspend the exercise 
 of their executive power until the matter could be settled at the next 
 General Court. {Rid., 204-206). 
 
 'Winthrop, II, 282-284. They enacted such "a body of law, with pre- 
 script penalties in all cases" that "nothing might be left to the discretion 
 of the Magistrates." Many of them were agreed upon by the Magistrates, 
 but they finally returned some with their non-concurrence. The Deputies 
 then complained that the Magistrates " would have no laws." They also 
 expressed opinions contrary to the decision of the Magistrates when acting 
 in this capacity, — all of which tended "to weaken the authority of the 
 Magistrates and their reputation with the people." {Ibid.). 
 
14 Colonial Origins of New England Senates. [106 
 
 In the second charter^ provision was made for the estab- 
 lishment of a Council of twenty-eight members ^ to be chosen 
 by the Assembly, subject to the approval of the Governor. 
 The executive powers of this body differed somewhat from 
 those which it had previously exercised. It was deprived of 
 the power to grant land,' but in connection with the Governor, 
 was given authority to nominate and appoint judges, commis- 
 sioners of Oyer and Terminer, sheriffs, provosts, marshalls, 
 justices of the peace and other officers of the " Council and 
 Courts of Justice," * to issue warrants for disposing of public 
 revenues ; ® and to exercise martial law upon the inhabitants.* 
 It also gave the entire executive authority into the hands of 
 the Council upon the death or absence of the Governor and the 
 Lieutenant Governor.^ In addition to these duties, numerous 
 other executive powers were granted it by the legislature from 
 time to time.^ 
 
 'The temporary and reactionary periods of Androa' rule demands no 
 attention in this connection. 
 
 ' This requirement was not always strictly observed. Between 1741 and 
 1766, whenever the Governor rejected any of the twenty-eight names sug- 
 gested by the Assembly, their places were left vacant, the Assembly refusing 
 to nominate others by way of retaliation. (Hutchinson, III, p. 152). This 
 finally led to the formation of a list of " Mandamus Counsellors." ( Palfrey, 
 IV, 433). 
 
 'Acta and Res. of the Prov. of Mass. Bay, I, 17. 
 
 * Ibid., 12 ; Douglass' Summary of Amer., I, 473, 486. 
 
 * Acts and Res., 16, 218 ; Randolph's Pres. State of New England in Perry, 
 19 ; Palfrey, III, 74. 
 
 'Acts and Res., I, 18. 
 
 ' IMd., 19, VII, 283, note ; Poore's Charters and Constitutions, I, 953. The 
 administration devolved upon the Council for the first time, July 7, 1701, 
 though there was at that time some doubt as to whether the Council or its 
 President should exercise this function. (Hutchinson, II, 117). In 1704, 
 the Queen directed that under such circumstances the eldest counsellor 
 should preside, but it was never observed, because contrary to the charter. 
 {Ibid., 191). 
 
 ^ They were given privileges to grant licenses for erecting buildings in 
 Boston (Acts and Res., I, 42, 405), admitting and removing settlers {Ibid., 
 90, 194, 402) ; allowed to award bounties {Ibid., 473), appoint commissioners 
 
107] Massachusetts. 15 
 
 A conflict arose over the extent of power conferred by the 
 clause which gave the Governor and Council authority to sign 
 warrants for the disposal of public money. This struggle 
 extended over a period of several years/ and was not ultimately 
 settled until the formation of the constitution of 1780.^ 
 
 {Ibid., 385, 211, 473), reward services (Ibid., 424), appoint certain courts 
 {Ibid., 719), reprieve condemned persons (Randolph's Pres. State of 2^ew 
 Eng.), etc. 
 
 ' This power seems to have been the first under the new charter to be 
 assailed by the Representatives. In 1695 the legislature passed an act to 
 the effect that " no public money be or ought to be disposed of by his excel- 
 lency, the Governor, and Council, but for the uses and intents of, and 
 according to the acts by which the said money is raised." {Acts, 170). 
 This act was repealed by the King in Council a year later. {Ibid., note). 
 By degrees, however, the House " acquired from the Governor and Council 
 the keys of the treasury," and by the year 1728, " no moneys could be issued 
 without the vote of the House for that purpose" (Hutchinson, II, 266), and 
 the right of the Representatives to originate money bills was undisputed. 
 " But they went further and intrenched upon the charter rights of the 
 Council and allowed no payment to be made for services until ihey had 
 judged whether they were performed and had passed a special order for such 
 payment." {Ibid.). They even voted that there should be paid out of the 
 treasury to the Speaker of the House 300 pounds sterling "to be applied as 
 they shovld direct." A-fter about three weeks of altercation, it was agreed 
 that 100 pounds should be so allowed, and that 200 pounds be paid to such 
 agent as should be chosen by the whole Court. {Ibid., 272-3). The House 
 gained the point at issue, and continued to designate the objects for which 
 moneys were raised, thus leaving nothing to the discretion of the Governor 
 and Council, until 1729, when Governor Shute vetoed an appropriation biU 
 for this reason. {Ibid., 322). The dispute which followed was settled 
 unfavorably for the House. {Ibid., 338-9). In 1732, the Representatives 
 succeeded in passing a bill not materially differing from the old method. 
 {Ibid., 339). In 1733, they successfully claimed a right to audit the public 
 accounts. In later years grants for the defense of the province were so 
 made that the Governor and Council were restrained from drawing money 
 from the treasury "for any other purpose." Governor Pownall submitted 
 to this invasion only under protest, on January 25, 1758, though his prede- 
 cessor had allowed it without complaint. {Ibid., Ill, 66-67). In 1762, the 
 House remonstrated against the method in which this power had been 
 exercised, stating that it was taking away " their most darling privilege," 
 and that it was "annihilating one branch of the Legislature." {Ibid., 97). 
 On this subject, see also Minot's Hist, of Mass., II, 65 et seq. 
 
 * See in/ro- 
 
16 Colonial Origins of New England Senates. [108 
 
 Section III. — The Judicial Function. 
 
 One of the many serious defects of the first charter was its 
 failure to provide for the erection of a judicial system. Upon 
 the transference of the government to the colony, the Assist- 
 ants took advantage of this defect and, realizing the necessities 
 of the colony, clothed themselves in judicial ermine and 
 transformed their court into a tribunal of justice.^ Their mag- 
 isterial power, once conceded ^ in time of necessity, remained 
 very extensive during the existence of the first charter.^ In 
 this capacity they served not only in the General Court, which 
 by the law of 1634, was declared "the chief civil power of 
 the Commonwealth," * but in the " great Quarter Court " of 
 appeals established in 1635-6,' the semi-annual "Court of 
 Assistants" organized in 1639,^ as well as in the capacity of 
 
 ^ Puritan Commonwealth, 78. 
 
 * Mass. Col. Rec., I, 89. 
 
 ' Washburn's Judicial Hist, of Mass., 42. 
 
 * Col. Laws (ed. 1660), 88. Latchford, in his Plain Dealing, written about 
 1640, says of the General Courts, " They have the power of Parliament, 
 King's Bench, Common Pleas, Chancery, High Commission and Star 
 Chamber, and all other Courts of England." 
 
 ^Mass. Col. Bee., I, 169; Hubbard, 243. 
 
 ^ Col. Laws, 23, 90. Randolph, writing in 1676, says : " There be two 
 Courts of Assistants yearly kept at Boston by the Governor or Deputy 
 Governor and the rest of the Magistrates upon the first Tuesday in March 
 and the first Tuesday in September, to hear and determine all actions of 
 appeal from inferior courts and all capital and criminal causes extending to 
 life, member or banishment." {Pres. State of New Eng. in Perry's Historical 
 Papers, etc., 3). They also exercised " admiralty jurisdiction and appellate 
 jurisdiction in matters of probate." (Washburn, 30; Chalmers, 436). In 
 fact, the jurisdiction of this Court was as extensive as that of the General 
 Court (Washburn, 29) which retained only appellate power {Col. Laws, 45) 
 except in chancery cases over which it exercised original jurisdiction until 
 1685, when a subordinate system of chancery was established. (Washburn, 
 28). After 1642 the General Court exercised appellate jurisdiction over 
 criminal cases only. {Col. Laws, 199). 
 
109] Massachusetts. 17 
 
 ex oficio justices in the lower courts of the colony,^ and indi- 
 vidual magistrates in the town where they resided.^ 
 
 Under the second charter, which left to the legislature the 
 establishment of courts of judicature, the judicial power of the 
 Governor and Council was greatly diminished.^ In fact, they 
 were granted jurisdiction only in cases of probate * and divorce. 
 These duties, however, soon proved too onerous, and the 
 Governor and Council, by the right of substitution which 
 they possessed as a civil law court, created Judges of Probate 
 in every county, from whose decisions appeals could be taken 
 to them as a Supreme Court of Probate.* Thus, by the end 
 of the colonial period, the Council had reduced its judicial 
 duties to a minimum, retaining little more than appellate 
 jurisdiction over a very limited field of judicature. 
 
 1 Hutchinson, ir, 21 ; Mass. Col. Bee, I, 169, 175; Hubbard, 234. 
 
 *This seems to have been the origin of the civil jurisdiction of Justices 
 of the Peace in Massachusetts, though Stearns {Real Actions, 506) thinks it 
 began with the act of 1644, and Judge Parsons {M. JR., IV, 515) says that 
 Justices of the Peace were not known as oflBcers under the first charter. 
 The limiting of their individual jurisdiction was first placed at 20 shillings, 
 but was subsequently (1644) raised to 40. Randolph {Pres. Slate of New 
 Eng. in Perry's Hist. Papers, 3) says that " every Magistrate is a Justice 
 of the Peace and can determine any cause under forty shillings, can 
 commit to prison and punish offenders for breach of laws and impose fines 
 according to discretion." See Washburn, 36 ; also Chalmers, 37 ; Maaa. (M. 
 Bee., I, 276, 
 
 ^ The powers of the General and the Assistants' Courts were granted to a 
 Superior Court, those of the County Courts to Courts of Common Pleas and 
 Quarter Sessions, while the regular Probate Courts exercised a part of the 
 former powers of the County Courts and the jurisdiction of the Magistrates 
 and Commissioners of small causes was exercised by Justices of the Peace. 
 Probate and divorce matters were left to the Governor and Council, whose 
 decisions were rendered by a major vote of the whole Court. (Hutchinson, 
 II, 451-2). 
 
 * Washburn, 138, 187. 
 
 * Washburn, 187. When the Legislature undertook to exercise the power 
 of creating similar courts, the King negatived the act. 
 
 2 
 
18 Colonial Origins of New England Senates. [110 
 
 Section IV. — The Legislative Function. 
 
 The legislative power of the Assistants, which, after the 
 transfer of the first charter to the colony/ rose so quickly to 
 high-tide, soon began to ebb with even greater rapidity. Only 
 a short time after the reaction set in, this oligarchy ^ — for such 
 the government under the Board of Assistants had become — 
 was stripped of its power and replaced by a representative 
 government, which became permanently established in 1634.^ 
 
 ^See supra. 'Chalmers, I, 157-8. 
 
 'Opposition to the Assistants originated over a question of taxation. On 
 February 3, 1632-3, they levied a tax of eight pounds upon the inhabitants 
 of Watertown {Mass. Col. Eee., I, 93), which evoked from tliese people a 
 protest that " it was not safe to pay moneys after that sort, for fear of bring- 
 ing themselves and posterity into bondage." (Winthrop, I, 84 ; Lodge, 345). 
 Although this particular case seems to have been amicably settled, the 
 freemen of the colony were aroused to an assertion of their rights, and a 
 number of reforms followed in its wake. T\yo months later (April 3, 1633) 
 the powers of the Governor were definitely defined (Winthrop, I, 86), and 
 in another month (May 9, 1633) the powers of the Assistants were restricted 
 by a sweeping act of reform which required : 1, That the Governor, Deputy 
 Governor and Assistants should be elected by the freemen ; 2, That these 
 officers should be "new chosen every year" ; and 3, That there should \)e 
 "two of every plantation appointed to confer" with the Governor and 
 Assistants "about raising of a public stock." {Mass. Col. Rec, I, 95 ; Win- 
 throp, I, 90, 91 ; Hutchinson, I, 30; Holmes' Annals of America, I, 258). 
 The last of these acts meant that the Court of Assistants was no longer 
 recognized as a representative assembly, and that the people were deter- 
 mined to levy taxes only through their representatives. 
 
 The rapid acquisition of authority by representatives of the towns, and 
 the corresponding loss of power by the Assistants, is remarkable. In 1632, 
 representatives of the towns were permitted only to " advise" and " agree" 
 with the Assistants on matters of taxation. Two years later they were 
 instructed " to meet and consider of such matters as they were to take in 
 order" at the next General Court. (Winthrop, I, 152 el aeq.). But when 
 they met this time they questioned the right of the Assistants to make laws, 
 and contended that the charter granted such privileges only to the General 
 Court. In spite of the Governor's attempt to evade the issue {Ibid., 153) 
 a body of twenty-four representatives appeared at the next General Court, 
 and were fully incorporated into the legislative body of the colony. At 
 
Ill] Massachusetts. 19 
 
 At this date the General Court became the legislature of the 
 colony, and was composed of the Assistants who represented 
 the colony as a whole and the Deputies who represented the 
 towns. 
 
 For the next ten years both bodies sat as one house and 
 usually voted together, " without any distinction, the major 
 part of the whole number determining the vote." The number 
 of Assistants, however, was limited by the charter, while the 
 Deputies were allowed to increase with the formation of new 
 towns. Hence there arose a struggle for existence, on the part 
 of the Assistants. A Council for life was established in order 
 to strengthen their ranks.^ Yet had not the Assistants taken 
 the following precaution, they would have lost "all their 
 
 this Court several radical reforms were introduced. Besides electing a new 
 man for Governor, and fining the Assistants for their past, conduct, the free- 
 men enacted : 1, That the General Court alone had power to admit freemen ; 
 
 2, To make laws, to elect and remove officers, and to define their duties ; 
 
 3, To raise moneys and taxes and to dispose of lands; 4, That there were 
 to be no trials for life or banishment except by a jury, or by the General 
 Court ; 5, That there were to be four General Courts held annually which 
 were not to be dissolved without their consent ; and 6, That Deputies were 
 to be elected and given " the full power & voyces of all the . . . ffreemen, 
 deryved to them for the makeing & establishing of lawes, graunting of 
 lands, &c., & to deale in all other affaires of the comonwealth wherein the 
 ffreemen haue to doe, the matter of eleccon of magistrates & other officers 
 onely excepted, wherein euy freeman is to gyve his owne voyce." {Mass. 
 Col. Bee, I, 117-9 ; Hutchinson, I, 39-40 ; Grahame, I, 169). 
 
 ^At a General Court held March 3, 1635-6, it was ordered that at the 
 next election there should be chosen " a certaine number of Magistrates for 
 tearme of their lives." {Mass. Col. Bee, I, 167). This act so contrary to 
 both the spirit and the letter of the Charter {Ibid., 10), was passed through 
 the combined influence of the Assistants and the clergy (Oliver's Puritan 
 CommonweaUh, 63), ostensibly to conform to the teachings of the Bible, but 
 really to counteract the rapidly developing power of the freemen, by 
 tempting over to the colony " some of the peers and other leading men 
 who might expect at home, in due season, to be raised to the upper house." 
 (Winthrop, I, 219-220, note). It was virtually repealed on June 6, 1639. 
 {Ibid., 363-4; Hubbard, 244; Mass. Col. Bee, I, 167, 264). Savage (Win- 
 throp, I, 364, note) observes that this is probably the only instance of an 
 election for life to any legislative or executive office in our country. 
 
20 Colonial Origins of New England Senates. [112 
 
 weight in the legislative part of the government." ^ Through 
 their influence, it was enacted in 1635 that " noe lawe, order, or 
 sentence shall passe as an act of the Court, without the consent 
 of the great' pte of the magistrates on the one pte, & the 
 great' number of the deputyes on the other pte ; & for want 
 of such accorde, the cause or order shalbe suspended, & 
 if either ptie think it soe materiall, there shalbe forthwith 
 a cornitte chosen, the one halfe by the magistrates, <fe the 
 other halfe by the deputyes, & the comittee soe chosen to 
 elect an vmpire, who togeather shall have power to heare & 
 determine the cause in question." ^ This act, however, seems 
 to have been soon forgotten in the conflicts ^ which arose over 
 the exercise of the " negative power." The Assistants main- 
 tained that they had a charter right to such a power, while 
 the Deputies, being in the majority, contended for a joint vote 
 on all matters. These struggles finally resulted in the intro- 
 
 1 Hutchinson, I, 396-7. ^ Mass. Col. Bee., I, 170. 
 
 ' The first occasion for such a disagreement arose over the request of Mr. 
 Hooker and his congregation for permission to remove to Connecticut. The 
 Governor, two Assistants and fifteen Deputies favored the request, while the 
 Deputy Governor, five Assistants and ten Deputies opposed it. Thus the 
 majority vote of the two bodies taken separately diflfered, but on a joint 
 ballot it stood eighteen to sixteen against the Assistants. The Assistants, 
 however, maintained their right to negative the vote of the Deputies, and 
 were successful through the influence of Mr. Cotton, who preached a sermon 
 on this subject at an interval given for fasting and prayer, when the struggle 
 had reached its height. The Deputies yielded only in this particular case, 
 without a final concession of the point. (Winthrop, 1, 167-9; Hutchinson, 
 I, 47). For the prevention of such dead-locks in the future, the act cited 
 above was then passed. These struggles finally terminated in the celebrated 
 case concerning the possession of a hog. On this point a majority of the 
 two bodies disagreed upon a separate vote. The Deputies insisted upon a 
 joint ballot, which gave them a majority. Though the "sow business" was 
 never decided, the controversy resulted in the settlement of the constitu- 
 tional question in dispute. (Winthrop, II, 83-86, 139-143). The Magis- 
 trates ofl^ered the next year to surrender their negative power if the freemen 
 would consent that their representatives should not exceed them in number 
 and should be " elected by the shires instead of the towns." The proposition 
 was rejected and probably never again renewed. (Winthrop, II, 214). 
 
113] Massachitsetts. 21 
 
 duction of the bicameral system, and in granting to each body 
 a negative over all the legislative acts of the other.^ 
 
 From the date of this separation, March, 25, 1644, the two 
 bodies were distinct, and their powers began to differentiate. 
 The Deputies became what Chalmers calls "the democratic 
 branch of the legislature,'"^ while the Council took on the 
 functions of an upper house, though still retaining its separate 
 position as an executive advisory body. 
 
 In its subsequent evolution, as a branch of the legislature, 
 the Council underwent one radical change in membership. 
 This was the removal of its two ex officio members, — the 
 Governor and the Lieutenant Governor. The former ceased 
 to be a member of the Legislative Council in 1716^ and the 
 
 ' See Prof. T. F. Moran's Rise and Development of the Bicameral System in 
 America, J. H. U. Studies, Thirteenth Series, V, 8-13. This order, not by 
 hurtfuUy withdrawing a power from the Magistrates as had been attempted, 
 but by beneficially conferring an equal power upon the Deputies, deter- 
 mined the great contention about the negative voice and completed the 
 frame of the internal government of Massachusetts, destined to undergo no 
 farther change for forty years.'' (Palfrey, I, 259). A modification of this 
 law was soon found necessary in judicial matters, since it would have pre- 
 vented any decision in many cases. It was, therefore, agreed in 1652, that 
 the veto power should be exercised only in legislative matters and that the 
 two houses should vote together in their judicial capacity, when they were 
 unable to reach a conclusion separately. {Mass. Col. Eec., Ill, 179 ; IV, pt. 
 1, 82; Hutchinson, I, 134-5). 
 
 *Polit. Annals, 166. Douglass (Summary, I, 213-4) calls the Councils the 
 " aristocratical " and the Kepresentatives the "democratic" elements of the 
 colonial legislatures. 
 
 ' Under the first charter, the Council was composed of the Assistants, the 
 Governor and the Deputy Governor. It was presided over by the Governor 
 or, in his absence, by the Deputy Governor, who was not given a veto power 
 and was therefore in 1641 allowed a vote in its proceedings. His power as 
 a presiding officer was little more than that of the other members. If he 
 refused to put to vote a question opposed to his views, it could be done by 
 any other member of the body. (Hutchinson, I, 62-3). The second charter 
 gave him a veto power, but was silent as to whether he should be considered 
 a member of the Council in its legislative capacity. Since departures from 
 old precedents were made only by degrees, his claims to a seat were asserted 
 and conceded only at intervals. Lord Bellomont (1699-1700) and Governor 
 
22 Colonial Origins of New England Senates. [114 
 
 latter in 1767/ but both continued to hold their positions in 
 this body when it acted in an executive capacity. 
 
 There was also an important change iu the relations between 
 the two branches of the Legislature. The Council lost the 
 power to originate money bills, and this function came to be 
 exercised by the Deputies alone. On this point Hutchinson 
 observes that the House had " by degrees acquired from the 
 Governor and Council the keys of the treasury and no money 
 could be issued without the vote of the House for that pur- 
 
 Dudley (1702-1716) considered themselves not only members, but heads of 
 the Council in both its executive and legislative capacities. They sat with 
 the Counsellors, directed their debates and proposed all their business. The 
 Governors who came into office after 1716 neglected to contend for such 
 privileges and thus ceased to be regarded as members of the legislative 
 Council. 
 
 ^ It was evidently intended for the Lieutenant Governor to be an ex officio 
 member of the upper house of the legislature under the second charter as 
 he had been under the first. Mr. Stoughton, the first Lieutenant Governor 
 under the second charter, though not at first elected a member of the 
 Council was considered " a Counsellor, ex officio, and voted and was upon 
 committees the whole year." (Acts and Resolves of Prov. of Mass. Bay, VII, 
 6, note; Hutchinson, II, 174). At the second election he was regularly 
 chosen one of the twenty-eight Counsellors as well as Lieutenant Governor, 
 and was therefore doubly entitled to a seat in that body. His immediate 
 successors also attended the meetings of the Council whether so selected or 
 not, but they vote^l in its proceedings only when elected as Counsellors. In 
 1732 the rights of the Lieutenant Governor to an ex efficio seat in the Council 
 when sitting in its legislative capacity was first challenged in the case of 
 Mr. Phipps, who having been elected Lieutenant Governor against the 
 desire of the Governor, was forbidden by the Governor to sit in that body 
 ** unless he should be elected by the Assembly and approved by the Gov- 
 ernor." The question was finally settled in 1767 when Lieutenant-Governor 
 Hutchinson failed to be elected to the Council. He was in constant attend- 
 ance upon the meetings of the Council during the first session after his 
 defeat, but "did not vote nor take any share in the debates." At the second 
 session, however, his attendance was characterized by the House as " a new 
 and additional instance of ambition and lust of power" (Hutchinson, III, 
 175 et seq.), and in spite of the efforts of the Governor and other friends, 
 the House successfully maintained its position and the Lieutenant-Governor 
 ceased to be an ex officio member of the upper branch of the Legislature. 
 {Ibid., 176-7). 
 
115] Massachusetts, 23 
 
 pose." ^ Hence, in 1744 the Governor requested the Assembly 
 to grant him and his Council power " to draw upon the treas- 
 urer" as occasion might require.^ 
 
 Section V. — The Proposed Constitution of 1778. 
 
 During the revolutionary period the Council retained the 
 powers which had been granted by the second charter.^ But 
 the necessity for a more perfect constitution was soon recog- 
 nized by the people, and efforts were early made to prepare 
 one, although the perturbed state of society, occasioned by 
 the war was not very favorable to such an undertaking.* To 
 meet this necessity a committee appointed by the General 
 
 ' Hist, of Mass., II, 266, 303 ; III, 66. The struggles over the exercise of 
 this power by the House and its effect upon the executive authority of the 
 Council has been noted in detail. See supra, p. 15, note 1. 
 
 * Douglass' Summary, I, 473. In the preceding treatment, the develop- 
 ment of the Council in the Plymouth colony has been omitted because 
 the affairs of that settlement exerted little or no influence upon the 
 constitutional development of Massachusetts into which it was merged in 
 1691. See Moore's Lives of the Oovemors of New Plymouih and Mass. Bay, 
 228. The history of the Council of New Plymouth is, nevertheless, unique 
 because of the peculiar way in which it originated. Upon the death of 
 Governor Carver in 1621, William Bradford was chosen Governor and he 
 " being not yet recovered of his lines, in which he had been near y« point 
 of death Isaak Allerton was chosen to be an Assistante unto him." (Brad- 
 ford's Hist, of Plymouth Plantation in Mass. Hist. Coll., Fourth Series, Vol. 
 Ill, 101). This choice of an Assistant which was made, not as a matter of 
 principle but as a temporary expedient, furnished the precedent for a per- 
 manent change in the constitution of the colony. The number of Assistants 
 was afterwards increased to five (1624) and then to seven (1633). Their 
 duties were at first confined to the executive and judicial departments, but 
 with the introduction of representative government they became a part of 
 the law-making body of the colony. See Prof. G. H. Haynes' Representation 
 and Suffrage in Mass., 1620-1691, J. H. U. Studies, Twelfth Series, VIII- 
 IX, Chapter V. 
 
 ^ Bradford's Hist, of Mass., 40 el seq. 
 
 * Ibid., ^2. 
 
24 ColonicU Origins of New England Senates. [116 
 
 Assembly reported to that body a draft of a constitution in 
 January, 1778, which was rejected by the people.^ 
 
 In this constitution the Senate is a more or less accurate 
 reproduction of the Council of the second charter. Article 
 XXXII required that all laws which " refer to and mention 
 the Council " should be " construed to extend to the Senate." ^ 
 Both instruments provided for the annual election of twenty- 
 eight members of this body ^ — by the Assembly, according to 
 the charter, but by the freemen according to the constitution.* 
 Both required a residence qualification,*^ but the constitution 
 added to this a property^ and a religious^ qualification, and 
 disqualified certain other officers of the State from a seat in 
 either branch of the General Court.* The authority of the 
 Council under this constitution, as under the charter, was 
 principally executive and legislative, — its judicial power being 
 restricted to the trial of impeachments.^ 
 
 When sitting in a legislative capacity both the Senate and 
 the House of Representatives had equal rights " to originate 
 or reject any bill, resolve or order or to propose amendments ; 
 except in case of money bills, which were to originate in the 
 House of Representatives only.^" 
 
 The Governor and Senate were to constitute the executive 
 body of the State, the former still retaining his position as 
 primus inter pares}^ The executive power of the Governor, 
 exclusive of the Upper House, was still very limited. With 
 the advice and consent of the Senate, however, he could march 
 
 ^ Ibid., 140. This was done chiefly because it contained no Bill of Rights. 
 Still it is important in this connection, since it embodies the political ideas 
 of a representative body of the people at that time, and serves as a con- 
 necting link between the colonial and state governments. 
 
 ' A draft of this constitution is given in Appendix to Bradford's Hist, of 
 Mass. 
 
 ' Constitution, Art. VIII. 
 
 * Ibid., Art. IX. * Ibid., Art. III. ^ Ibid., Art. III. 
 
 ^ Ibid., Art. XXIX. s/Std., Art. IV. »md., Art. XX. 
 
 lOiJtd., Art XIV. "Z6id., Art. XVII, XXII. 
 
117] Massachusetts. 25 
 
 the militia out of the State ; ^ prorogue the General Court ; ^ 
 lay an embargo and prohibit the exportation of any commodity 
 for a limited time ; ^ appoint all officers, both civil and mili- 
 tary, whose appointment was not reserved to the General 
 Court,* and sign warrants for the disposal of all public money, 
 " agreeably to the acts and resolves of the General Court." ' 
 " In case of a vacancy in the office of Governor and Lieutenant 
 Governor," the executive authority was to devolve upon " the 
 major part of the Senate." ^ 
 
 Section VI. — The Gonstitution of 1780. 
 
 A second and more successful effort at constitution-making 
 was made in 1780.^ This instrument marks the last step in 
 the evolution of the Senate. Then for the first time in the 
 history of Massachusetts, were the executive, legislative and 
 judicial powers emphatically declared " separate and distinct." ^ 
 The powers formerly exercised by the Council were, therefore, 
 delegated to two separate bodies,' — a Senate, which performed 
 the legislative, and a newly created Council, which performed 
 the executive and advisory function. The qualifications for 
 
 Ubid., Art. xy II. ^Ibid. 
 
 3 Ibid., Art. XXI. *Ibid., Art. XIX. 
 
 ' Ibid., Art. XXXII. This limit to the power of the Council had been a 
 cause of contention for several years. See supra. 
 6/6id, Art. XVIII. 
 ' A copy of this constitution is given in Poore's Charters and Constitutions, 
 
 I, 956-973. 
 
 ® Bill of Rights, Art. XXX. Yet " all causes of marriage, divorce and 
 alimony and appeals from the judges of probate" were to be "heard and 
 determined by the Governor and Council " until the General Court should 
 make other provisions. (Chap. Ill, Art. 5). These were the last remnants 
 of judicial power exercised by the Governor and Council under the second 
 charter. 
 
 ^ The seats of senators elected to the Council were declared vacant. (Chap. 
 
 II, Sec. 3, Art. II). 
 
26 Colonial Origins of New England Senates. [118 
 
 membership in each body were the same,^ and their members 
 M^ere chosen at the same time and in the same way — a fact 
 which suggests their common origin.^ This method of election 
 was of a double nature and combined the practices under both 
 charters — an election by the people and then by the General 
 Court.3 
 
 The Executive Council consisted of nine persons besides 
 the Lieutenant Governor,* five of whom constituted a quorum. 
 It was convened at the discretion of the Governor, " for the 
 ordering and directing the affairs of the commonwealth accord- 
 ing to the laws of the land." ® As under the second charter, 
 the Council assumed the functions of the chief executive upon 
 the vacancy of the office of Governor and Lieutenant Gov- 
 ernor.* With the advice and consent of the Council, the 
 Governor could exercise the pardoning power,^ appoint judicial 
 officers, fill vacancies under certain conditions,^ and appoint 
 such officers of the continental army as were allowed to the 
 State by the Confederation of the United States. The power 
 to advise the Governor as to the signing of warrants for the 
 disposition of public moneys, which was first granted to the 
 
 ' These qualifications were " a freehold within the commonwealth of the 
 value of three hundred pounds," "personal estate to the value of six hundred 
 pounds," a residence of five years within the State and a residence within 
 the district for which he is chosen at the time of his election. (Chap. II, 
 Sec. 2, Art. V). 
 
 ' Members of both bodies were elected by the Senators and Representa- 
 tives on a joint ballot from a list of forty names which were chosen by the 
 people " to be Counsellors and Senators." (Chap. I, Sec. 2, Art. I ; Chap. 
 II, Sec. 3, Art. II). 
 
 » Chap. I, Sec. 2, Articles I, II. 
 
 * Under the charters the Governor and Lieutenant Governor came to be 
 members of the Council only in its executive capacity. See supra. 
 
 » Chap. II, Sec. I, Art. IV ; Ibid., Sec 3, Art. I. 
 
 «Chap.II, Sec. 3, Art. VI. 
 
 'Chap. II, Sec. 1, Art. VIII. Under the second charter the Governor 
 and Council were allowed to grant only reprieves, while the power to grant 
 pardons rested with the General Court. 
 
 Ubid., Art. IX. 
 
119] Massachusetts. 27 
 
 Council by the second charter, was renewed in the Constitution 
 of 1780 with a few exceptions/ 
 
 The legislative department was composed of a Senate ^ and a 
 House of Representatives, each of which had a negative on 
 the other.* The two bodies differed as to privileges in only 
 two respects: (1), The Senate had power to try impeach- 
 ments,* and (2), The House had exclusive right to originate 
 money bills/ 
 
 ' Ibid., Art. XI. These exceptions applied to " such sums as may be 
 appropriated for the redemption of bills of credit or treasurer's notes or for 
 the payment of interest." 
 
 * This body consisted of thirty-one members, — nine out of the list of forty 
 returned for " Counsellors and Senators " {supra, 26, note 2) being chosen 
 for the former office. The Senators were apportioned according to districts 
 (Chap. I, Sec. 2, Art. I). 
 
 ^Chap. I, Sec. 1, Art. I. This question was brought up and settled under 
 the first charter. See supra. 
 
 * Chap. I, Sec. 2, Art. VIII. The party so convicted was, nevertheless, 
 " liable to indictment, trial, judgment and punishment according to the laws 
 of the land." 
 
 5 Chap. I, Sec. 3, Art. VII. This power was acquired under the second 
 charter. See supra. 
 
CHAPTER II. 
 
 Connecticut. 
 
 Section I. — Governmental Beginnings. 
 
 Whatever may have been the occasion for the removal of 
 the inhabitants of Newtown (Hartford), Dorchester (Windsor) 
 and Watertown (Wethersfield) from their first location in Mas- 
 sachusetts to the region of the Connecticut River/ they carried 
 with them the form, if not the spirit, of the political and 
 religious institutions of the mother colony,^ under whose gov- 
 ernment they continued for several months after their removal.' 
 Their only assembly was a court held at each town in turn 
 and composed of two magistrates from each, except when 
 
 ^ Doyle {Eng. Colonies in Amer., II, 159) thinks that they did not with- 
 draw "out of any dissatisfaction or with any craving for political changes." 
 while Johnston {Conn., Amer. Commonwealth Series, 64) characterizes this 
 removal as " a secession of the democratic element from Massachusetts." 
 On this subject see also Trumbull's Memorial History of Hartford County, I, 
 19 e< seq. 
 
 ^Morey's Genesis of a Written Constitution, Annals of Amer. Acad., I, 551 ; 
 Johnston's Genesis of a New Eng. State, J. H. U. Studies, First Series, 13- 
 14; Palfrey, I, 233; Bond's Hist, of Watertown, Mass., 1, 980; Hartley's 
 Hartford in the Olden Time, 49 ; Stiles' Hist, of Ancient Windsor, 25, note ; 
 Loomis and Calhoun's Judic. and Civil Hist, of Conn., 2. Even their Massa- 
 chusetts magistrates and ministers (except the minister at Watertown) 
 removed with them. On the extent of authority delegated to these Massa- 
 chusetts magistrates see Hazard, I, 822. 
 
 ' Andrews' River Toums of Conn., J. H. U. Studies, Seventh Series, VII, 
 Vin, IX, 78-81 ; Loomis and Calhoun, 3-4 ; Memorial Hist, of Hartford 
 County, I, 106. 
 
 28 
 
121] ConnectimL 29 
 
 Pynchon, the Magistrate from Agawam ^ (Springfield) was 
 present and raised the number to seven. Its members were 
 commissioned by the General Court of Massachusetts, and 
 their executive, judicial and legislative power was practically 
 supreme.^ Eight sessions of this court were held before the 
 meeting of the first General Court of the colony, which 
 assembled at Hartford, May 1, 1637. Unlike the former 
 courts, it was composed of the Magistrates, Assistants or 
 Commissioners,^ who had previously held such meetings, and 
 of nine Deputies here called " Committees," three of the latter 
 being from each of the three towns. Thus, instead of slowly 
 working out a system of representation by a " series of expe- 
 dients and compromises," the principle of democracy early 
 asserted itself in the constitution of this " binal assembly." * 
 Here we find the germs of the Senate and House of Repre- 
 sentatives of the future State of Connecticut. They became 
 permanently embodied in the political system of the colony 
 by the enactment of the " Fundamental Orders " on January 
 1, 1638-9.^ Under this constitution the government was 
 organized upon a basis from which only a few permanent 
 
 ^ This was a newly settled town, situated so near the boundary between 
 Massachusetts and Connecticut that it was, for several years, uncertain to 
 which it belonged. See Palfrey, I, 235. 
 
 * For their commission see Mass. Col. Rec, I, 170. 
 
 'The title of these "Magistrates" was not fixed before the Constitu- 
 tion of 1638-9. Dr. Bronson thinks they were chosen by the newly 
 elected Deputies. {Early Oov. of Conn, in New Haven Hist. Soc. Papers, 
 III, 297). 
 
 * Johnston's Genesis of a New Eng, State, 14, In commenting upon this 
 assembly the author further says, "so complete are the features of State- 
 hood, that we may fairly assign May 1, 1637, as the proper birthday of 
 Connecticut." {Ibid.). 
 
 * This instrument, which Mr. Bryce calls " the oldest truly political Con- 
 stitution in America" {American Commonwealth, ed. 1893, I, 429, note), 
 provided for a government similar in all essential respects to that of 
 Massachusetts. 
 
30 Colonial Origins of New England Senates. [122 
 
 departures ^ were made previous to the adoption of the consti- 
 tution of 1818. The charter of 14 Charles II was practically 
 a royal confirmation of this instrument and, instead of altering 
 the government of the colony, put it on a surer footing and 
 extended the limits of the colonial jurisdiction.^ 
 
 Throughout the colonial and early state history of Con- 
 necticut the Assistants were chosen from the colony as a whole 
 and the composition of the Council' remained practically 
 unchanged except in the number of its members.* During 
 this entire time the Governor and Deputy Governor retained 
 their positions as ex officio members of this body when acting 
 in every capacity ; and one of them always presided when 
 present. Citizenship in the colony seems to have been the 
 only qualification for membership in this body. 
 
 The powers of the Council were, at first, confined chiefly to 
 the judicial and legislative departments. In the course of 
 time, however, it entered more fully upon the executive 
 domain. The wording of the Fundamental Orders clearly 
 indicates that its framers, who were fresh from the conflicts 
 that had been so fiercely waged between the patricians and the 
 
 ^ Although, as is well known, Andros failed to take away the charter of 
 Connecticut, he took the government into his hands in 1687. But upon 
 his imprisonment in 1689 the old officers, after an interruption of nineteen 
 months, resumed their duties according to the charter. {Conn. Col. Bee., 
 Ill, 250; Palfrey, II, 384-5; TurnbuU's Hist, of Conn., I, 376-7). 
 
 ' Loomis and Calhoun, 104-5. This charter is almost an exact reproduc- 
 tion of the Massachusetts charter of 1628, with an additional provision 
 recognizing a representative system. It led to the absorption of the New 
 Haven colony and the loss of all its characteristic institutions. (Atwater's 
 Hist, of New Haven, 520-7). Hence the history of this colony demands no 
 consideration in this connection. 
 
 ' This term is used in anticipation of the subsequent history of this body, 
 since it does not appear in the records before those who had been called 
 "Magistrates" in the Fundamental Orders {Conn. Col. Bee., I, 21) and 
 "Assistants" in the charter {Ibid., II, 4) came to acquire executive power. 
 
 * According to the Fundamental Orders it consisted of at least six mem- 
 bers while the charter required a membership of at leaat twelve. 
 
123] Connedimt. 31 
 
 plebs of the mother colony, were still disposed to regard the 
 Magistrates with a high degree of jealousy and suspicion.^ 
 
 Section II. — The Exeeutive Function. 
 
 In no part of the Fundamental Orders was this predilection 
 shown more clearly than in the limitations placed upon the 
 exercise of the modicum of executive power, which it granted 
 this body. To be sure, " the Gou'nor and the gretest p'te of 
 the Magestrats" were given power to convene the General 
 Court in either regular or special sessions ; ^ but it was also 
 provided that in case they should " neglect or refuse to call 
 the two Generall standing Courts or ether of the, as also at 
 other tymes when the occasions of the Comon wealth " required, 
 " the Freemen ... or the Mayor p'te of them " were given 
 power to petition to them " soe to do ; " and " if then yt be 
 ether denyed or neglected " this power could be exercised by 
 the freemen themselves.' 
 
 In the course of time, however, this jealousy was somewhat 
 allayed, and at the General Court of March, 1662-3, "the 
 Assistants ... on the Riuer" were given power to act in " y® 
 vacancy of the sitting of the Generale Court" "in all necessary 
 concernments, both miletary and civile, according as the p''sent 
 exegents require and call for." * Before that time specific 
 matters pertaining to the executive function of the govern- 
 ment ' were often referred to the Particular Court of Assistants, 
 or to individual Magistrates,® but they had never before been 
 authorized to act in all " necessary concernments." Although 
 
 ^ Dr. Bronson {Early Oov. of Conn. — New Haven Hist. Soc. Papers, III, 
 318) observes that these people " had witnessed the struggle in Massachusetts 
 between the aristocratic and republican members of the government . . . 
 were on the popular side and took effectual measures to circumscribe patri- 
 cian ambition." 
 
 2 Orders 6 and 10. ^ jjj-^ 4(j^„ q^i ^^^ j^ 397 
 
 » Ibid., I, 397. *Ibid., 71, 255, 277, etc. 
 
32 Colonial Origins of New England Senates. [124 
 
 this order was repealed in April, 1665,^ the Governor and the 
 Assistants still continued to perform executive duties in the 
 intervals of the General Court.* In July, 1675, executive 
 power was granted to the Governor, Deputy Governor and 
 Assistants with four other persons.' Similar councils were 
 constituted from time to time,* until May, 1677, when the 
 membership of the Executive Council was, for the first time, 
 restricted to the Governor, Deputy Governor and the whole 
 body of Assistants.* It remained unchanged in composition 
 until the usurpation of Andros. After that time it varied 
 greatly as to its powers and composition, though the right of 
 any of the Assistants to membership in the Executive Council 
 was never denied.® 
 
 In the answers of the General Court to the queries of the 
 Lords of the Committee of Colonies given in July, 1680, the 
 powers and the composition of the Standing Council are thus 
 stated : " As there is any special occasion the Governor calls 
 his Assistants, who are his Council, to meet and consider of 
 such matters as fall in the interval of the General Courts, and 
 determine the same." ^ 
 
 In the latter part of the colonial period many powers which 
 had been formerly delegated to the Council came to be exer- 
 cised by the Governor alone.^ Thus at a comparatively early 
 date there began to appear indications of an evolutionary 
 process which ultimately resulted in a complete absorption of 
 the executive function by the Governor. 
 
 1 JMd., 94, 188, 316, etc. 
 
 • Ibid., 440. The records contain the proceedings of as many as three 
 such meetings between the Ist and 9th of July, 1675, the date when the 
 Council was revived. See Ibid., II, 331 et seq. 
 
 3 Ibid., 261. * Ibid., 284, 289. * Ibid., 316-7. 
 
 * Unlike the Council of the mother colony, that of Connecticut was strictly 
 subordinate to the General Assembly and was dependent upon that body for 
 all its powers and even for its very existence. 
 
 ' Oonn. Col. Bee., Ill, 294 ; Chalmers' Anncds, 307. 
 
 8Cf. Conn. Col. Bee., VIII, 87, 376, with X, 350, 424, 461, 485, 550 ; VIII, 
 326, with X, 348, XI, 99, 126, 234, 354, 486, XIV, 430 ; VII, 77-8, VIII, 
 440, 461, with X, pp. 483-4, etc. 
 
125] Connecticut. 33 
 
 Section III. — The Judicial Function. 
 
 At the beginning of the government of Connecticut, the 
 judicial duties and powers of the Counsellors extended to all 
 the tribunals that existed in the colony previous to the granting 
 of the charter. As in Massachusetts, they were not limited to 
 the general judicial authority which they performed as mem- 
 bers of the General Court.^ They also exercised judicial 
 power in the Particular Court,^ which from 1638 to 1665 
 constituted the highest strictly judicial tribunal in the colony.^ 
 
 Upon the reorganization of the government of the colony 
 under the charter, several important changes were made in the 
 judicial system in order to meet the needs of an increased 
 population and an extended territory. 
 
 ^ In both colonies the legislative body received not only the name but the 
 authority of a judicial tribunal. This power cannot be said to have been 
 completely surrendered by this body until the formation of the constitution 
 of 1818. in 1726 an appeal to the King in Council was refused John Win- 
 throp because he had not previously referred his case to the Assembly 
 as the Supreme Court of the colony. {Conn. Col. Eec., VII, 20). From 
 time to time, however, appeals to the General Assembly became so numerous 
 that various expedients were resorted to in order to restrict them. See 
 Loomis and Calhoun, 106-7, 132. 
 
 *Conn, Col. Bee., i, 21. It was composed at first of the Governor or 
 Deputy Governor and a majority of Magistrates, but after May, 1647, the 
 Governor, or Deputy Governor and two Magistrates were empowered to hold 
 its sessions. It met four times a year and tried all cases of appeal from the 
 lower courts and all other causes exceeding forty shillings. At first all 
 causes were tried by a jury which seems to have been in attendance from 
 the first institution of this court. (Trumbull, I, 125). After February, 
 1644, causes under forty shillings were tried by the Magistrates without a 
 jury {Conn. Col. Mec., I, 118, 535), and in cases when juries were employed, 
 the Magistrates were granted great discretionary power in aflixing penalties 
 {Ibid., 138, 324), and they were even allowed to set aside the verdict of a 
 jury when, according to their judgment, it was unjust {Conn. Col. Bee., I, 
 117, 118) ; and to decide all cases whereon the jury disagreed {Ibid., 85). 
 After March, 1662-3, persons convicted before this Court "for a misde- 
 meanor" were allowed an appeal to the General Court {Ibid., 395). See 
 also Loomis and Calhoun, 126-7. 
 
 ^ Memmial Hist, of Hartford ComUy, I, 109. 
 
 3 
 
34 Colonial Origins of New England Senates. [126 
 
 The General Court, or General Assembly as it was then 
 called, still exercised judicial power and, in fact, continued to 
 do so, to a greater or less degree, until the formation of the 
 constitution of 1818. 
 
 The powers which had been exercised by the Particular 
 Court were divided between two newly created tribunals, — the 
 County Courts and the Court of Assistants. From 1666 to 
 1698 the County Courts ^ consisted of one Assistant, or " as we 
 would now say Senator," ^ and at least two Commissioners or of 
 any three Assistants.' In 1698, however, the Assistants ceased 
 to be ex offixdo members of these tribunals,* — this being the 
 first instance of a diminution in the judicial powers of this 
 body during its process of evolution into a Senate. 
 
 In October, 1665, the Court of Assistants succeeded the 
 Particular Court as the highest strictly judicial body in the 
 colony." The membership of this new court was also confined 
 to the Governor, or Deputy Governor and Magistrates, who at 
 this time came to be called Assistants.^ It existed until 1711 ^ 
 
 ^ The first County Court was established in May, 1665, for the New Haven 
 colony, which had just lost its General Court. (Trumbull, I, 276-7). A 
 similar court was also established at New London at the same date. {Ibid.). 
 In October of the same year a similar court was established for Hartford 
 {Conn. Col. Rec., II, 29), and the next year they were established for all the 
 counties of the colony. {Ibid., 35). They were composed at first of two 
 Assistants and three Justices of the Quorum. (Trumbull, I, 276-7). 
 
 'Memorial Hist, of Hartford County, I, 110. ^ Conn. Col. Rec, II, 35. 
 
 ^ After 1698 they were composed of one judge and from two to five Jus- 
 tices of the Peace and Quorum. The jurisdiction of these courts, while 
 composed of Assistants, extended to all cases, both civil and criminal, except 
 those involving life, limb, or banishment. Causes involving more than 
 twenty shillings were tried by a jury. 
 
 » Conn. Col. Rec, II, 28-9. 
 
 ^Ibid.; Memorial Hist, of Hartford County, I, 113; Loomis and Calhoun, 
 129. It was empowered to meet twice a year, to hear and determine appeals 
 from the lower courts and to try capital oflfences and crimes respecting life, 
 limb, or banishment. Appeals were tried by a jury " if the nature of the 
 case required." {Conn. Col. Rec, II, 29 ; III, 294 ; Chalmers, 307). It was 
 also granted jurisdiction in cases of divorce and the powers of a Court of 
 Admiralty. (Loomis and Calhoun, 129). 
 
 ' Owing to a typographical error, Loomis and Calhoun (p. 131) give 1811 
 as the date of this change. 
 
127] ConneGtieut. 36 
 
 when it was succeeded by the Superior Court of the colony, 
 both of which had practically the same composition and power. 
 In 1784 an act was passed by the General Assembly declaring 
 that the office of judge of this court was incompatible with 
 membership in the Assembly, or in the Congress of the United 
 States.^ This seems to have been the second instance in which 
 the judicial powers of the Senate were limited in the process 
 of its evolution into a strictly legislative body. 
 
 In 1784 a Superior Court of Errors was established. It 
 consisted of the Governor, Lieutenant Governor ^ and Assist- 
 ants.^ The defects in the composition of this tribunal soon 
 became apparent, — since its membership was determined with 
 reference to the position the Assistants were to hold in the 
 General Assembly, which was the larger and more important 
 body.^ The Assistants were chosen because of their qualifi- 
 cations as legislators, rather than judges, hence the judicial 
 system felt the evil effects of this law. It was therefore 
 repealed in 1806, and from that date this tribunal was com- 
 posed of the several judges of the Superior Court instead 
 of the Senators serving in an ex officio capacity.* This was 
 the third and last step in limiting the judicial powers of 
 the Senate previous to the adoption of the Constitution of 
 1818. 
 
 ' Loomis and Calhoun, 133. 
 
 'Loomis and Calhoun (p. 133) say that the Governor became a member 
 of this tribunal in 1793, while Memorial Hist, of Hartford County (I, p. 113) 
 gives this date as the time when the Lieutenant Governor was admitted 
 to it. 
 
 ^ This court was held at first annually, alternating between Hartford and 
 New Haven. In 1801 it was enacted that this body should consist of six 
 members and was to hold two sessions in each county annually, one in 
 summer and the other in winter. ( Loomis and Calhoun, pp. 133-4). Its 
 jurisdiction extended to all cases which had previously gone before the 
 General Assembly by writ of error. Civil actions had been excluded from 
 the General Assembly since May, 1697. {Oonn. Col. Rec, IV, 200). 
 
 ■• Loomis and Calhoun, 133-4. 
 
 ^Ibid.; Pease and Niks' Gazetteer of Conn, and B. J., ed. 1819, 18. 
 
36 Colonial Origins of New England Senates. [128 
 
 Section IV. — The Legislative Function. 
 
 Legislative authority was vested solely iu the General Court 
 or Assembly/ which was composed of two branches, — the 
 upper consisting of the Magistrates or Assistants ^ elected by 
 the freemen at large and the lower of Deputies, or Repre- 
 sentatives chosen by the several towns. They occupied the 
 same chamber and were presided over by the Governor, or 
 Deputy Governor, or iu the absence of both by a Moderator.' 
 Two sessions of this court were held annually. The fall term 
 was for the " making of laws," while the spring term was for 
 the election of officers, after which it might "proceed in any 
 public service as at other courts." * Each session, however, 
 embraced many meetings, which were adjourned from time to 
 time and thus extended over a period of several months. The 
 legislative power of this court extended over the whole colony 
 and was practically unrestricted.'' 
 
 It was found necessary to make only a few changes in the 
 privileges of the two branches of the General Court and in 
 their relations to each other. For the first six years after the 
 organization of the government, the two branches sat together 
 and voted as one body. Of course, this gave a great advantage 
 to the larger branch. After the lapse of six years, however, 
 the prejudice against the Magistrates, as shown in the Funda- 
 mental Orders, had abated to such an extent that the Deputies 
 were willing to make a heroic sacrifice of the advantage they 
 
 » Qmn. Col. Bee., Ill, 295. 
 
 * Dr. Bronson {Early Oovemment of Conn. — New Haven Hist. Soc. Papers, 
 III, 317 ) judging by the wording of the Fundamental Orders and by the state 
 of mind of its framers, thinks that the granting of legislative power to the 
 Magistrates was " an after-thought" and that ''it is not in harmony with 
 the other parts of the Constitution." 
 
 3 Conn. Col. Bee., II, 24-5. * Ilnd., 22. 
 
 * Loomis and Calhoun, 103. The charter forbade the enacting of laws 
 " contrary to the laws and statutes of the realm of England," but no pro- 
 vision was made for its enforcement. (Palfrey, II, 41). 
 
129] Cbnnedimt. 37 
 
 held over the minority. On February 5, 1644-5, an act was 
 passed granting to each body "a negative voice" upon the 
 actions of the other.^ This " important concession on the part 
 of the popular majority" was the first instance in which 
 separate rights were accorded to each body. The passage of 
 this act was probably due to the combined influence of the 
 mother colony, which had just introduced the bicameral sys- 
 tem,^ and the " increasing weakness of the aristocratic party 
 in England."^ In 1724 it became necessary to make an 
 exception to it in the election of Governor.* 
 
 The second step in the evolution of the Council as a legis- 
 lative body was taken in October, 1698, when it was enacted 
 that the General Court, or Assembly which had hitherto con- 
 stituted a unicameral body should be divided into two separate 
 branches, the first of which was to consist of the Governor, 
 or Deputy Governor and Assistants, and was to be " known 
 by the name of the Upper House." ^ The Governor was not 
 given a veto power, but, as President of the Council, was 
 allowed a casting vote in case the vote of that body should be 
 equally divided.^ Any bill could originate in either house but 
 was not allowed to have the force of law without the concur- 
 rence of the other. This act was put into execution at the next 
 meeting of the Assembly, held in May, 1699.' No subsequent 
 change was made in the rights and functions of the Upper 
 House nor in its relations to the popular branch during the 
 colonial and early state history of Connecticut. This colony 
 did not follow the example of most of the other colonies and 
 
 * Conn. Col. Rec, I, 119. *See supra. ^Bronson, 321. 
 
 * Conn. Col. Bee, VI, 415, note, 483-4. Other officers were still chosen by 
 the two bodies sitting apart. (Ibid., 377). 
 
 ^ Ibid lY, 267, 282; Trumbull, I, 399; Palfrey, HI, 208; Loomis and 
 Calhoun, 106. 
 
 ^ Douglass, Summary, II, 168. 
 
 ' Conn. Col. Bee, TV, 282. On this subject see also Prof. T. F. Moran's 
 Bise and Development of the Bicameral System in America, J. H. U, Studies, 
 Thirteenth Series, V, 16-22. 
 
38 Colonial Origins of New England Senates. [130 
 
 adopt a new constitution upon emerging into statehood, but 
 cjontinued its government after the ancient form, a statute 
 being enacted the session after the memorable 4th of July, 
 1776, which provided that the government should continue to 
 be organized and administered according to the provisions of 
 the charter.* 
 
 Section V. — The Constitution of 1818. 
 
 The final step in the process of evolution was taken upon 
 the formation of the first state constitution in 1818. It 
 provided for the definitive separation of the three functions 
 of government.^ The executive and judicial powers of the 
 Council were taken away and the body was erected into a true 
 Senate.^ Its membership remained the same in number* and 
 was still chosen from the State at large.® There was, however, 
 a change as to its composition. Owing to the separation of 
 
 ' Pease and Niles' Gazetteer of Oonn. and R. I., 18. The changes occasioned 
 by the transition from colony to state were very slight. In 1775 the regnal 
 year disappeared from the head of the records. ( Conn. Col. Rec, XV, 185, 
 note). In June, 1776, acts were purported to be passed by the "General 
 Court or Assembly of the English Colony of Connecticut in New England," 
 while in October of the same year they were said to be by the " State of 
 Connecticut in New England." {Memorial Hist, of Hartford County, I, 107). 
 
 Instead of forming a new constitution the inhabitants of Connecticut 
 contented themselves with their old charter of 1662, to which they merely 
 prefixed a Bill of Eights. This Bill of Rights (Paragraph I) begins as 
 follows : "Beit enacted and declared by the Governor, and Council, and House 
 of Representatives, in General Court assembled. That the ancient Form of Civil 
 Government, contained in the Charter from Charles the Second, King of 
 England, and adopted by the People of this State, shall be and remain the 
 Civil Constitution of this State, under the sole authority of the People 
 thereof, independent of any King or Prince whatever." 
 
 * Articles II; X, Sec. 4. 'Article II, Sec. 1. 
 
 * Cf. Article III, Sec. 4, with Conn. Col. Rec, II, 5. 
 
 * Article III, Sees. 5-6. A change was made in this feature of the con- 
 stitution by an amendment ratified in November, 1828, which required the 
 choice of Senators according to districts. (Amendments to the Constitution 
 of 1818, Art. II). 
 
131] Connecticut. 39 
 
 governmental functions, the Governor, who now became the 
 chief executive of the State,^ no longer retained his seat as an 
 ex officio member of the Senate,^ and the Lieutenant Governor 
 succeeded to the position of president of that body, a duty 
 which he had always performed in the absence of the Gover- 
 nor.^ The casting vote which had been accorded the presiding 
 officer in the Council was still retained,* and the veto power 
 of the Governor was introduced for the first time in the history 
 of the State.® 
 
 1 Article IV, Sec. 1. 
 
 • The only qualification for membersliip in this body seems to have been 
 citizenship within the State. 
 
 " Article IV, Sec. 13. 
 
 * Cf. Article IV, Sec. 13, with Conn. Col. Bee., I, 25. 
 ^ArticlelV, Sec. 12. 
 
CHAPTEE III. 
 
 New Hampshire. 
 
 Section I. — Governmental Beginnings. 
 
 The inhabitants of the little settlements along the several 
 branches of the Piscataqua learned their first political lessons 
 from Massachusetts, under whose jurisdiction they spent thirty- 
 eight years at the very beginning of their governmental career.^ 
 The laws, customs and institutions of Massachusetts were 
 quickly adopted in New Hampshire, and the two colonies soon 
 became one in sympathy and in governmental policy. 
 
 On September 18, 1679, Charles II issued a commission* 
 which separated the two colonies and erected, what Douglass 
 calls the " insignificant colony " ^ of New Hampshire, into a 
 distinct province with a separate President and Council. This 
 change went into effect January 1, 1680, at which date the 
 history of the Council of New Hampshire properly begins.* 
 
 •"By virtue of an instrument signed by five inhabitants of these settlements 
 on April 14, 1641, the people of New Hampshire came to enjoy the same 
 liberties and administration of justice as those of Massachusetts. (New 
 Hampshire Provincial Papers, I, 156-9 ; Farmer's Belknap's Hist, of N. H., 
 30 ; Hubbard, 372). The government of this section had previously con- 
 sisted of four distinct voluntary associations, which were liable to be further 
 subdivided over the disagreements that are inevitable in political affairs. 
 
 * Prov. Papers, I, 373 ; Poore's Charters and Constitutions, H, 1275. 
 ' Summary of America, II, 34. 
 
 * During the union with Massachusetts, New Hampshire was entitled to 
 only two Deputies, no mention being made of any representation in the 
 Council. See Prov. Papers, I, 159; Farmer's Belknap, 31; Savage's Win- 
 throp, II, 92. 
 
 40 
 
133] New Hampshire. 41 
 
 Several changes were made in the government of the colony 
 previous to the outbreak of the Revolution/ yet the history 
 of the Council, with one slight exception,^ extends throughout 
 this entire period of ninety-five years. 
 
 Its members were never chosen by the people in their annual 
 elections, as was the case in the neighboring colonies, but were 
 appointed by the Crown.^ They cannot, therefore, be said 
 to have constituted an independent body at any time in the 
 colonial period. They were always selected from the colony 
 as a whole, witliout regard to the interests of the different sec- 
 tions,^ and could be dismissed by the President at his discretion.^ 
 
 During the entire colonial period the powers of this body 
 were threefold — executive, j udicial and legislative. The extent 
 of its effective authority, however, was greatly modified by 
 such arbitrary rulers as Cranfield, Barefoot and Andros. 
 
 Section II. — The Executive Function. 
 
 The Council had no executive powers independent of the 
 Governor, or in his absence of the Lieutenant Governor, both 
 
 ^ It remained a separate royal province from 1680 to 1686, when it became 
 a province of New England. Upon the overthrow of Andros in 1690 it 
 again united with Massachusetts. This union lasted until 1692, when it 
 again became a separate royal province. In 1699 another change was made 
 by which it was partially united with Massachusetts, each colony having the 
 same Governor, but different Lieutenant Governors, Councils and Assembly 
 of Representatives. In 1741 it became a separate royal province for the 
 third time and remained as such until 1775. 
 
 *The second union with Massachusetts (1690-92) was made on the same 
 basis as the first. Hence New Hampshire had no representation in the 
 Council. See supra. Cf. Prov. Papers, I, 156-9, with Ibid., II, 35-6. 
 
 * In Cuffs' Commission, six out of the ten Counsellors were appointed by 
 the King. {N. H. Hist. Coll., Ylll, 2; Prm. Papers, I, 375; Poore, II, 
 1275). In subsequent commissions the King retained the power to appoint 
 all Counsellors except when the number fell below seven at any one time. 
 {Prov. Papers, I, 435; II, 58, 306, 367-8, and VI, 909-10). 
 
 * This finally became a source of complaint on the part of the repre- 
 sentatives. 
 
 * In Cranfield's Commission those who had been thus dismissed were ineli- 
 gible to a seat in the Assembly. {Prov. Papers, I, 435). 
 
42 Colonial Origins of New England Senates. [134 
 
 of whom were ex ojido members of it when acting in such a 
 capacity.^ Its executive sessions were held so often at Ports- 
 mouth,^ at or near which a majority generally resided, that it 
 finally came to be the only recognized place of meeting.' The 
 Governor and Council could convene the legislative assembly ; * 
 advise as to the issuing of warrants for the disposal of public 
 monies;** build and fortify, or demolish forts, castles, cities,^ 
 etc. ; supervise the trade and commerce of the colony, order 
 fairs, markets, ports, harbors, etc. ; and appoint custom-house 
 and warehouse officials.^ They were also charged with the 
 granting of lands and tenures,* and the establishment of courts 
 of justice.® The last named power, though granted by the 
 various royal commissions, seems to have been shared from an 
 early date by the popular branch of the legislature regardless 
 of the united opposition of the Governors and the Councils. 
 The point was not finally conceded until 1771, when the Crown 
 gave the Representatives a legal basis for such action.^" 
 
 1 Frov. Papers, I, 370-6, 440-1 ; II, 63, etc. 
 
 * Ibid., II. ^ Ibid., YU, 204. 
 *Ibid., I, 379, 436; 11, 58, 306, 367 ; VI, 910; VII, 124. 
 
 • Ibid., I, 440; II, 65, 310, 373; VI, 912; VII, 124. 
 «/&id., I, 439; II, 60, 308, 371 ; VI, 911-2; VII, 124. 
 Ubid., I, 440; II, 61, 67, 311, 373; VI, 913; VII, 124. 
 'Ibid., II, 310, 373 ; VI, 913 ; VII, 124. 
 
 ^Prov. Papers, II, 59, 307, 369 ; VI, 911 ; VII, 124. This power was not 
 granted in Cutts* Commission, since the Governor and Council themselves 
 constituted the Court. 
 
 ^° The first contest over the exercise of this power arose in Cranfield's 
 administration. The wording of his commission was very vague on this 
 point. It reads : " We [the King] do hereby give and grant unto you 
 [Cranfield] full power and authority to erect, constitute and establish such 
 and so many courts of judicature and public justice .... as you and they 
 shall think fit and necessary." {Prov. Papers, I, 437.) In the copy of this 
 commission which was delivered to the Assembly the words, "and they" 
 were omitted by order of the Governor who maintained that they were 
 " put in by mistake." The Assembly, of course, thought that it referred 
 to them {Ibid., 517) and demanded a voice in this matter. In the adminis- 
 tration of Cranfield and his immediate successors, the power of the Assembly 
 was reduced to the minimum, but after the iniquitous rule of Andros, a 
 
135] New Hampshire. 43 
 
 Section III. — The Judicial Function. 
 
 Upon the organization of the judicial system of New Hamp- 
 shire after its separation from Massachusetts in 1680, the 
 judicial business of the colony was placed for the most part 
 into the hands of the Counsellors. 
 
 voice in the establishment of courts of judicature was accorded the popular 
 branch, notwithstanding the commissions, which bestowed this entire power 
 upon the Governor and Council. Such authority was not exercised, how- 
 ever, without encountering the opposition of the Council, whose rights 
 were thus infringed upon. 
 
 In 1767 the House passed two different bills for the establishment of 
 courts in the various counties to be created by the legislature. {Prov. Papers, 
 VII, 135, 140). Both bills were rejected by the Council on the ground that 
 such an act would be an infringement upon the prerogative of the Crown, 
 who had vested this power in the Governor with the advice and consent 
 of his Council. {Ibid., 144). The House replied that the paragraph cited 
 from the Governor's commission had been inserted in the first commission 
 for erecting a government in the province and " from the exigency of afiairs 
 was then absolutely necessary till a Legal Establishment of Courts of Justice 
 should take place; and though perhaps the same paragraph" had been 
 inserted in all subsequent commissions, such a power had never been exer- 
 cised by any Governor of the province " since the laws now in force were 
 passed for holding said Courts in the town of Portsmouth and regulating 
 their proceedings. In the year 1730 three of the Inferior Courts were 
 removed from Portsmouth, one to Exeter, one to Dover, one to Hampton, 
 and but one held at Portsmouth, but this was by an act passed for that pur- 
 pose. . . . Since the year 1730 four or five Acts of Assembly have been 
 passed for altering the times of the sitting of Courts in this Province, and 
 we think it to be plain that the words Erect, Constitute and Establish have 
 here an original signification of fixing those courts in the first instance." 
 {Ibid., 154-5). The Council still non-concurred. {Ibid., 156, 162). The 
 House appealed to the King {Ibid., 184), who consented that the act should 
 be passed provided it " contained a suspended clause that should not take 
 eflfect till his Majesty's Pleasure should be known." {Ibid., 202). Thus 
 the point at issue was settled. The act which recognized the rights of the 
 House to a voice in the establishment of courts of justice was passed in 
 April, 1767 {Ibid., 229), and received the royal approval in 1771. {Ibid., 
 274, 276). 
 
44 Colonial Origins of New England Senates. [136 
 
 They not only exercised judicial authority in the General 
 Court ^ as in Massachusetts, but were also constituted by the 
 commission of President Cutts, a separate court of appeals 
 for the whole colony. The exercise of this latter power en- 
 countered the constantly increasing opposition of the colonists 
 from time to time. It was nevertheless renewed by subse- 
 quent commissions and instructions, and was thus continued 
 throughout the colonial period.^ 
 
 Three inferior courts were appointed for Dover, Hampton 
 and Portsmouth. These were held "by y' Presid' and Counc", 
 or any 6 of y' Counc" whereof y* Presid* or his Deputy " 
 were one " together w*** a Jury of 12 honest men ... for such 
 as desire to be tried by a Jury." ^ There was no limit to the 
 jurisdiction of these courts. Appeals could be taken to the 
 King in Council on all civil cases involving over fifty pounds * 
 and in "criminall cases, where y* punishm* to be inflicted" 
 extended " to loss of life or limb," except in "y* case of will- 
 full murder." The individual members of the Council were 
 also given authority to hear and determine minor offenses.' 
 
 ^Farmer's Belknap, 222; Prov. Papers, I, 395. As in the other colonies, 
 the General Assembly was usually considered the supreme tribunal for the 
 trial of all cases of appeal from inferior courts. {Prov. Papers, VII, 395, 
 N. H. Hist. Coll., VIII, 22.) In Gov. Allen's instructions, however, the 
 exercise of such power was not allowed, since appeals from the Governor 
 and Council were expressly forbidden {Prov. Papers, II, 68). 
 
 'N. H. Hist. CoU., VIII, 4. 'Prov. Papers, I, 395. 
 
 *Prov. Papers, I, 377; N. H. Hist. CoU., VIII, 4. 
 
 ^Prov. Papers, I, 387, 390, 392 ; N. H. Hixt. CoU., VIII, 14, 17, 19. Under 
 the administration of Gov. Dudley New Hampshire became a county of the 
 Province of New England and its courts were composed of Justices of the 
 Peace and such Counsellors as might be present, one at least being required 
 to form such a tribunal {Prm. Papers, I, 594). The President and Council 
 of New England, part of which was chosen from New Hampshire, consti- 
 tuted the Superior Courts of Grand Assize and General Goal Delivery which 
 held annual sessions in Boston {Ibid., 595). 
 
 Andros and his Council constituted a Court of Sessions and a Superior 
 Court of Judicature {Ibid., II, 16 and 17 note; Col. Ree. of Conn., Ill, 
 1678-1689), whose jurisdiction extended over New Hampshire. 
 
 The Council minutes show that in the administration of John Usher " all 
 of y* Council " had " power as Justice of Peace in y« whole Province." 
 
137] New Hampshire. 45 
 
 This system was in force until 1699 when the judiciary of 
 the Colony was reorganized. Before that date, however, the 
 courts varied greatly in character, composition and authority. 
 At times, law and justice became " synonymous with a dicta- 
 tor's decrees " and Counsellors, Judges and Assemblies were 
 dismissed with or without cause, as the Governor's prejudice 
 determined.^ 
 
 An act of 1699 shows a marked tendency to reduce the 
 judicial duties of the Council as a body, since by it the Gov- 
 ernor and Council were made a court of appeal only for civil 
 cases involving over one hundred pounds.^ In less than two 
 years afterwards, the colonists made an emphatic assertion of 
 their opposition to this tribunal. Several complaints were 
 sent to the Queen to the effect that the Governor and Council 
 received appeals and decided cases without taking an oath to 
 do justice.^ An oath was then prescribed and taken,* but the 
 people were still unwilling that the Council should exercise 
 judicial as well as executive and legislative power.' On Jan- 
 uary 3, 1727-8, they passed a vote "prohibiting the Sup' 
 Court of Judicature" from granting "appeals to the Gov' & 
 Council."® The Council non-concurred and cited the royal 
 instructions as the source of its judicial authority.^ Lieutenant 
 Governor Wentworth put an end to the controversy by dis- 
 solving the Assembly.* But this did not silence the opposition 
 
 1 Sanborn's Hkt. of N. H., 81. 
 
 ^Prov. Papers, III, 86 and 220. Membership in the Council did not, how- 
 ever, disqualify one from exercising other judicial powers besides those per- 
 taining to the Council as a whole. 
 
 3 Farmer's Belknap, 222. *Pi-ov. Papers, II, 342. 
 
 * This opposition was occasioned partly because the judges who decided 
 cases in the inferior courts were members of the Council ; " partly because 
 no jury was admitted in this court of appeal; and partly because no such 
 institution was known in the neighboring province of Massachusetts." 
 (Farmer's Belknap, 222). 
 
 *JVoD. Papers, IV, 475. 
 
 ^It even characterized this act as a "scandalous lible" {Prov. Papers, 
 III, 480). 
 
 Ubid., 484. 
 
46 Colonial Origins of New England Senates, [138 
 
 of the people, and the existence of this tribunal was a standing 
 grievance throughout the rest of the colonial era.* 
 
 Section IV. — The Legislative Function. 
 
 All the royal commissions issued to the Governor of New 
 Hampshire vested the legislative power in the General Assem- 
 bly of Representatives.^ All the Governors except Cutts were 
 given a veto over all the acts of the legislature.^ All enact- 
 ments passed by both houses and approved by the Governor 
 were transmitted to the Privy Council in England and 
 remained in force until disallowed by that authority.^ 
 
 The first session of the General Assembly of New Hamp- 
 shire met at Portsmouth on March 16, 1679-80. Profit- 
 ing by the unpleasant experiences of Massachusetts, three years 
 after they had first passed under her jurisdiction, the two 
 branches of the Assembly sat apart ^ and it was enacted that 
 " no Act, Imposition, Law or Ordinance be made or imposed 
 upon " the province " but such as shall be made by the said 
 Assembly and approved by the Presid' and Councill from 
 time to time."® They then proceeded to re-enact the laws of 
 Massachusetts under which they had lived so agreeably for 
 thirty-eight years.^ 
 
 'In 1772 complaint was made to the Lords of Trade that the Governor 
 and Council had deprived grantees under the crown of their lands " without 
 any legal process" or a trial by jury (Belknap, ed. 1812, III, Appendix; 
 Farmer's Belknap, 345; Prov. Papers, VII, 338). 
 
 ''Prov. Papers, II, 59, 307, 369 ; VI, 910 ; VII, 124 
 
 ' Belknap (Farmer's Edition, 97) says that Cranfield was the first to whom 
 such power was granted in New England. 
 
 *Palfrey, II, 267. 
 
 * See Prof. T. F. Moran's Bise and DevehpmerU of the Bicameral System in 
 America, J. H. U. Studies, Thirteenth Series, V, 13-16 ; Belknap's Hist, of 
 N. H., 1, 178-9. 
 
 'Prov. Papers, I, 382-3; N. H. Hist. CoU., VIII, 10. 
 
 'Sanborn's Hist, of N. H, 78-9. 
 
139] New Hampshire. 47 
 
 President Cutts died in 1681 and was succeeded on the 
 following year by Edward Cran field. Owing to Cranfield's 
 unpopularity, in less than four months after his arrival in the 
 colony, three members of the Council had voluntarily with- 
 drawn and three others had been dismissed.^ On account of 
 a disagreement, the Assembly was dissolved by Cranfield, Jan- 
 uary 20th, 1683.^ The Governor and Council then assumed 
 the entire legislative authority,^ which they retained until 
 forced by need of money to summon a new Assembly.* At 
 this session of the Assembly which convened January 14, 1684, 
 we find the first assertion in New Hampshire of a prerogative 
 which was claimed sooner or later by the lower house in all 
 the colonies, except perhaps Rhode Island.* The Represen- 
 tatives rejected as " unparliamentary," a money bill which 
 had been previously passed by the Council.® The Governor 
 dissolved the Assembly on the following day,'' and attempted 
 to levy taxes upon his own authority.^ Failing iu this, he 
 summoned a third Assembly six months later.' This Assem- 
 bly also exhibited a spirit of insubordination to his demands 
 and was likewise dismissed after a short session. From this 
 time the right to originate money bills was never relinquished 
 by the popular branch of the Assembly. 
 
 After the unsettled period,^" immediately following the im- 
 prisonment of Andros" in 1689, Samuel Allen was appointed 
 Governor and John Usher Lieutenant Governor of the colony. 
 The commission ^^ and instructions ^^ of Governor Allen, which 
 
 ^ Farmer's Belknap, 98. Two of the latter were afterwards restored. 
 
 »76id. 'Phw. Papers, I, 618. ■• Farmer's Belknap, 104. 
 
 ' See infra. * Farmer's Belknap, 104. 
 
 Uhid. '^Ibid., 110. Ubid. 
 
 ^•^ From the surrender of Andros' government, April 18, 1689 {Prov. Papers, 
 II, pt. I, p. 21), until the accession of Governor Allen, there was no legalized 
 government in the colony. {Ibid., 30 ei seq.). 
 
 " During his administration there was no popular branch of the Legisla- 
 ture. Laws were made by the Governor and his C!ouncil of fifteen, only one 
 of whom was from New Hampshire. {Ibid., 118-9). 
 
 ^'Ibid.,b7. "Ibid., 63. 
 
48 Colonial Origins of New England Senates. [140 
 
 were issued March, 1692, constituted a frame of government, 
 the Legislature of which was substantially the same as that 
 provided for in the commission of President Cutts. In fact 
 no important change was made in the legislative power of the 
 Council througiiout tiie rest of the colonial period. 
 
 The Assembly was held under the strict surveillance of the 
 royal officera, and was kept too severely in check to admit of 
 that expansion which was necessary in order to keep apace 
 with the advancing ideas of the people. Not only was the 
 Council at the mercy of the royal Governor, but the popular 
 branch was held largely within the limits of his desires by his 
 veto power and his authority to prorogue its sessions. Above 
 them all stood the King who retained 'Hhe prerogative of 
 disannulling the acts of the whole at his pleasure." 
 
 The last session of the General Assembly under the govern- 
 ment of Great Britain was held July 18, 1775.^ Previous to 
 this date the government of the colony had been gradually 
 assumed by representatives of the people who formed them- 
 selves into a Provincial Congress.^ This peculiar form of 
 government continued until January 5, 1776, when, according 
 to the last vote of the Fifth Provincial Congress, it was decided 
 to " take up Civil Government." ^ 
 
 Section V. — The Constitution of 1776. 
 
 This body then tried its skill at constitution-making. It 
 first metamorphosed itself into a popular branch of the Legis- 
 lature by assuming " the Name, Power & Authority of a 
 
 1 Prov. Papers, VII, 385. 
 
 * Under this form of government the entire political authority of the 
 people was delegated to a body of men who exercised executive as well as 
 legislative power. During the recesses of this body their power was exer- 
 cised by a " (Jommittee of Safety," whose acts were as binding as those of 
 the entire Congress. 
 
 ' Prov. Papers, y III, 2. 
 
141] New Hampshire. 49 
 
 house of Representatives or Assembly for the Colony ^ of New 
 Hampshire," ^ and then proceeded to create a new Council to 
 take the place of the old one which had disappeared with the 
 royal government. This Council, like its predecessor, consti- 
 tuted " a Distinct and Separate Branch of the Legislature." ^ 
 It resembled the old Council in size and character of mem- 
 bership,* but differed from it in two respects. The new 
 Counsellors were chosen by popular election after the expiration 
 of the term of the first, who were appointed by the House ; 
 and they were apportioned among the different counties of 
 the colony,^ five being from Rockingham, two from Stafford, 
 two from Hillsborough, two from Cheshire and one from 
 Grafton County.® 
 
 This constitution did not confer any judicial authority upon 
 the Council, as a body, independent of the Assembly ; and on 
 January 26, 1776, "All clauses" of the colonial laws "Respect- 
 ing the Governor & Council Sitting or acting as a Court of 
 Appeals" were repealed/ and the supreme judicial power was 
 assumed by the legislature.^ This act abolished the tribunal 
 which the colonists had considered a grievance for several 
 
 ^ The title of " State " was not assumed until September 10, 1776. {Prov. 
 Papers, VIII, 332). 
 
 « Prov. Papers, VIII, 3 ; N. H. Hist. Coll., IV, 151-2. ^ Ibid. 
 
 * September 19, 1776, provision was made for adding to the membership 
 of both branches of the Legislature upon the accession of new towns or 
 settlements. {Prov. Papers, VIII, 344; N. H. Hist. Coll., IV, 154). 
 
 ' Prov. Papers., VIII, 3, 4; N. H. Hist, ail., IV, 153. 
 
 ^ Prov. Papers, VIII, 3, 6. As early as 1717 the choice of Counsellors 
 from one locality (Portsmouth) had been made a cause for complaint on the 
 part of the Assembly. We are told that at that time "ye whole number" 
 of counsellors resided " w*in two miles or therea*"' one of another." {Prov. 
 Papers, III, 675). For this reason the Kepresentatives very properly 
 claimed at a later date, that they were better acquainted with the needs 
 and desires of the people than were the Counsellors. {Prov. Papers, VII, 
 203-4). 
 
 ' Prov. Papers, VIII, 60. 
 
 * A very strong plea against such an exercise of power was presented in 
 the case of the State vs. Porter. {Prov. Papers, VIII, 327-8). 
 
 4 
 
60 Colonial Origins of New England Senates. [142 
 
 years.^ With its enforcement the Council as a body ceased to 
 exercise judicial powers, but its members still served iu an 
 ex officio judicial capacity as individuals.^ 
 
 One of the greatest defects of the hastily formed Constitution 
 of 1776 was the want of an executive branch of government. 
 To remedy this the two houses " of Legislature during their 
 session performed executive as well as legislative duty," and 
 at every adjournment a Committee of Safety was appointed to 
 transact the business of the colony " in the recess of the Gen- 
 eral Assembly." ^ The appointment of " all civil officers for 
 the Colony & for Each County," " Except Clerks of Courts 
 & County Treasurers & Recorders of Deeds " was vested in 
 both houses of the Legislature.* They also appointed the 
 higher military officers who had been previously appointed by 
 the royal Governors.' 
 
 No changes were made in the legislative powers of the 
 Council. All acts and resolves " agreed to and passed by both 
 Branches of the Legislature " had the force of law ^ and all 
 " Bills, Resolves or votes for Raising, Levying & Collecting 
 
 ^ See supra. 
 
 *0n January 12, 1776, it was voted "That the members of the Hon*''* 
 Council ... be Justices of the Peace and of the Quorum throughout" the 
 colony. {Prov. Papers, VIll, 18). They were also permitted to fill any 
 other judicial ofiice to which they might be chosen, since membership in 
 the Council did not disqualify them for such positions. ( Farmer's Belknap, 
 364). 
 
 ' Prov. Papers, VIII, 21. The orders and recommendations of this com- 
 mittee had the same eflfect as the acts and resolves of the Council and House 
 while in session. {N. H. Hist. CoU., II, 38, note). The committeemen were 
 chosen by the Legislature and varied in number from six to sixteen. The 
 President of the Council was also President of the Executive Committee. 
 (Farmer's Belknap, 364). 
 
 *Prov. Papers, VIII, 4; N. H. Hist. CoU., IV, 16.S. 
 
 ''Prov. Papers, VIII, 3, 4; N. H. Hist. Coll., IV, 153. 
 
 «Prw. Papers, VIII, 3; N. H. Hist. Coll., IV, 152. This rule had been 
 observed ever since the meeting of the first General Assembly of the colony 
 in 1679-80. 
 
143] New Hampshire. 51 
 
 money " were still required to " Originate in the House of 
 Representatives." ^ 
 
 Section VI. — The Proposed Constitution of 1779.^ 
 
 This instrument proposed the following changes: (1) That 
 the Governor with the advice of the Council be authorized to 
 grant reprieves,^ to call extra sessions of the General Court, 
 and to point out the principal business of such sessions.* (2) 
 That the members of the Council be disqualified from holding 
 the office of Sheriff.' (3) That no member of the General 
 Court should be judge of the Superior, the Inferior, or the 
 Probate Court.® The significance of this constitution is the 
 fact that it marks a tendency towards a separation of the 
 functions of government. 
 
 Section VII. — The Proposed Constitution of 1781.' 
 
 This constitution marks another step in the development of 
 the ideas of the people towards a separation of the functions 
 of government which was so vaguely indicated by the pro- 
 posed constitution of 1779. The executive power of the state 
 was to be vested in the Governor and a new body to be known 
 as the "Privy Council."* The former Council of twelve was 
 to be continued under the title of " Senate," and its powers 
 were to be restricted to the legislative function alone.^ 
 
 ^Prov. Papers, VIII, 3; N. H. Hist. Coll., IV, 152. This power had also 
 been exercised by the House, throughout the history of the colony. 
 
 * Although it was rejected by the people in their town meetings on account 
 of its imperfections, the principal one of which was the omission of a pro- 
 vision for the chief executive, it nevertheless indicates certain advances in 
 the ideas of the people as to the duties of the Council. A copy of this 
 Constitution is given in N. H. Hist. Coll., IV, 154, et seq. 
 
 3JV. H. Hist. Coll., IV, 160. *Ibid., 159. Ubid., 160. ^Tbid. 
 
 '' This constitution is not given in the N. H. HisL Coll., but the Address 
 accompanying it which discussed its main features may be found in Ibid., 
 IV, 162-73. 
 
 ^N. H. Hist. GoU., IV, 170. 'JMd, 166 ; Farmer's Belknap, 383. 
 
52 Colonial Origins of New England Senates. [144 
 
 Sectim VIII.—The Constitution of 1783-4.^ 
 
 The adoption of the second state constitution marks the final 
 step in the evolution of the Senate in New Hampshire. 
 
 It declared that " the three essential powers " of government 
 " ought to be kept as separate from and independent of each 
 other as the nature of a free government will admit." ^ 
 
 The executive power was vested in the President of the state 
 and his Couucil of five — two Senators and three Representa- 
 tives — who were chosen annually by a joint ballot of both 
 houses.^ 
 
 The judicial power was exercised by officers chosen by the 
 President and his newly created Council.* 
 
 The supreme legislative power was vested in a General 
 Court composed of a Senate and a House of Representatives, 
 each of which had "a negative on the other.'"* The Senate 
 was an exact counterpart of the Council under the first consti- 
 tution. It consisted of twelve persons,® seven of whom were 
 necessary to constitute a quorum. Its members were to 
 be elected by districts ; but, until otherwise ordered by the 
 General Court, the different counties were to elect each the 
 
 'A copy of this constitution is given in N. H. State Papers, XX, 9-30, and 
 in Poore, II, 1280, el seq. The convention that drew up the constitution of 
 1781 continued its labors for a period of more than two years (June, 1781 
 to October, 1783), and held no less than nine sessions. The result of their 
 prolonged labors is the constitution which was adopted June 2, 1784. 
 
 'Bill of Bights, Art. XXXVII. The incorporation of this principle 
 was probably due to the able arguments in the case cited above (p. 49, 
 note 8) and to the influence of other state constitutions which embodied this 
 feature — particularly that of Massachusetts, " which was supposed to be an 
 improvement on all which had been framed in America." (Farmer's 
 Belknap, 383.) 
 
 "State Papers, XX, 24; Poore, II, 1289. 
 
 *StaU Papers, XX, 23 ; Poore, II, 1288. 
 
 '^StaU Papers, XX, 15 ; Poore, II, 1284. 
 
 * Presided over by the President of the State who had a vote " equal with 
 any other member," and also " a casting vote in case of a tie." 
 
145] New Hampshire. 53 
 
 same number of Senators that had been granted them by the 
 constitution of 1776.^ The House still retained the power to 
 originate money bills, but the Senate had power to " propose 
 or concur with amendments as on other bills." ^ The only 
 remnant of judicial power left the Senate was the trial of im- 
 peachments made by the House of Representatives,^ as] was the 
 case in most other states. 
 
 Senators were required to belong to the Protestant faith ; to 
 be possessed of a freehold estate of two hundred pounds with- 
 in the State ; to be at least thirty years of age, inhabitants of 
 the state seven years, and, at the time of their election, inhabi- 
 tants of the district from which they were chosen.* 
 
 1 Cf. Prov. Papers, VIII, 3, with Stale Papers, XX, 16 ; Poore, II, 1285. 
 
 'State Papers, XX, 20 ; Poore, II, 1287. 
 
 'State Papers, XX, 18 ; Poore, II, 1286. *Ibid. 
 
CHAPTER IV. 
 I Rhode Island. 
 
 Section I. — Governmental Beginnings. 
 
 The first settlers of this state founded not a single colony, 
 but four separate and distinct settlements; namely, Provi- 
 dence in 1636, Portsmouth in 1638, Newport in 1639, and 
 Warwick in 1642. 
 
 These towns were at first independent, self-centred commu- 
 nities of persons who differed no less in governmental ideas ^ 
 than in religious faith. There seems to have been, however, a 
 
 *In 1637, thirteen of the settlers of Providence signed a civil compact in 
 which they agreed to be governed '* by the maior consent of the .... Ihabi- 
 tants maisters of families Incorporated Together into a towne fellowship and 
 others whome they" should ''admit unto them" "only in civill things." 
 {Early Eec. of the Town of Prov., I, 1 ; B. I. Col. Rec, I, 14.) Town meet- 
 ings of all the inhabitants were held monthly down to 1640, when the growth 
 of the colony rendered a purely democratic government impracticable. 
 (Mr. W. E. Foster's Town Government in Rhode Island, J. H. U. Studies, 
 Fourth Series, II, p. 13, 16, 19 ; Arnold's Hist, of the State of Rhode Island, 
 I, 102. ) " The general business of the town " with a few exceptions, was 
 then delegated to " 5 Disposers " who held monthly meetings. They were 
 chosen by the town meetings in which all the freemen henceforth assembled 
 quarterly. {R. I. Col. Rec., I, 108-9 ; Historical Discourse by Hon. Thomas 
 Durfey in 250th Anniversary of Providence, 127.) 
 
 The Portsmouth settlers inclined to a sort of theocracy. Following Ju- 
 daic example, they chose a Judge " to exercise authority among them." 
 {R. I. Col. Rec., I, 52.) Witliin a year three elders were associated with 
 him and to them all was given " the whole care and charge of all the af- 
 fairs" of the colony. They were to administer justice and to draw up such 
 rules and laws as should be for the general welfare and "according to God." 
 In 1639, the people discarded the theocratic element to a great extent and 
 
 54 
 
147] RTwde Island. 55 
 
 direct line of institutional development from germs that ap- 
 peared at the foundation of the two island governments, which 
 later united, and not only took the initial step towards a union 
 of all the settlements,^ but furnished a model for the govern- 
 ment of the whole colony.^ By a rapid series of developments 
 the Judges in the separate towns of Portsmouth and Newport 
 
 constituted themselves into "a civill body politicke." {Ibid., 70.) The 
 offices of Judge and Elders were continued and the number of the latter 
 was increased to seven. Their duties as a body seem to have been confined 
 principally to the judicial function, and a jury system was introduced. {Ibid.) 
 
 The government of Newport was a counterpart of that of Portsmouth, 
 from which it sprang, and with which it was finally united. It also had 
 Judges and Elders {Ibid., 87) who served chiefly in a judicial capacity {Ibid., 
 90, 93), though they were granted some executive power. {Ibid., 95). In 
 legislative power they do not seem to have been superior to other freemen 
 who attended the General Quarter Courts. 
 
 In 1640 Portsmouth and Newport united in a common government. 
 {Ibid., 100). The titles of "Judge" and "Elder" were then abolished by 
 the General Court and those of "Governor" and "Assistant" substituted 
 in their stead. Provision was made for the election of a Governor, a 
 Deputy Governor and four Assistants, the Governor and two Assistants to 
 be chosen in one town and the Deputy and two other Assistants in the other 
 town. {Ibid., 101). They were " invested with the offices of Justices of the 
 Peace" ex officio. At the next "General Courte," "particular Courts" con- 
 sisting of " Magistrates (Assistants) and Jurors " were established to be held 
 each month at Newport and Portsmouth alternately for the trial of " all 
 such cases and actions as shall be presented." {Ibid., 103). Three months 
 later the Magistrates of each town were constituted a tribunal for the trial 
 of all cases, matters of life and death only excepted, that might arise in their 
 respective towns. 
 
 The settlers at Warwick, under the influence of Gorton, maintained that 
 they had no legal right to erect a government without being authorized to 
 do so by the mother country. {Ibid., 129). They therefore remained with- 
 out any form of government until the organization of the colonial govern- 
 ment in 1647. 
 
 ^R. I Col. Rec, I, 125; Arnold, I, 113. 
 
 * Providence instructed its commissioners who attended the first meeting 
 of the towns under the charter of 1663-4 " to hold correspondency with the 
 whole in that model that hath been lately shown unto us by our worthy 
 friends of the Island." {R. I. Col. Rec., I, 43; Staples' Annals, R. I. Hist. 
 Soc. Coll., Vol. V, 62). 
 
66 Colonial Origins of New England Senates. [148 
 
 were succeeded by the Governor of the united government of 
 the island, and then the President of the whole colony under 
 the first charter.^ The Elders at the same time and by a simi- 
 lar course of evolution became the Magistrates or Assistants of 
 the island and then of the united colony.^ The history of their 
 development into a Senate is unique. They came into existence 
 as a purely executive and judicial body, but later acquired legis- 
 lative power without losing their authority in the other branches 
 of government. They finally lost their executive and judicial 
 functions, but retained legislative power, and thus became a 
 true Senate. 
 
 On March 14, 1643-4, the English Parliamentary Commis- 
 sion granted a charter or patent^ to Providence, Newport and 
 Portsmouth * under the name of the Providence Plantations.' 
 
 *This charter was formed upon the Massachusetts model, with an addi- 
 tional feature which provided for a representative system, similar to that 
 which had grown up in Massachusetts. All the New England colonies were 
 assimilated to the same model. 
 
 ' See supra. 
 
 ' There seems to be no ground for the distinction between a charter and a 
 patent as given in Jameson's Dictionary of American History, p. 124. That 
 grants to individuals were not always called patents is evident from the 
 wording of the instruments granted to Lord Baltimore (Poore's Charters and 
 Constitutions, I, 811-17) and to William Penn {Ibid., II, 1509-15). On the 
 other hand the words, "charter" and "patent," seem to have been indis- 
 criminately used to designate grants both to corporations and to individuals. 
 See R. I. Col. Bee, II, 143-6 ; Conn. Col. Bee, I, 384. In fact, no distinc- 
 tions seem to have been made, by the colonists at least, in the use of these 
 terms. Penn referred to his "charter" of 1681 as "Letters Patent." 
 (Poore's Charters and Constitutions, II, 1536). See also Jacob's Law Dic- 
 tionai-y (London, 1809) under titles " Charters of Private Persons," "Grants 
 of the King" and "Patents," and Black's Law Die, pp. 196, 877. 
 
 * Although Warwick was not mentioned in the charter, it united with the 
 other towns at the organization of the government of the colony. 
 
 * A copy of this charter may be found in B, I. Col. Bee, I, 143-6 ; Coll. 
 of B. I. Hist. Soc, IV, 221-5 ; and Poore's Charters and Constitutions, II, 
 1594-5. An excellent account of the " Origin of the Charter Government 
 and Its Fundamental Principles" may be found in Burke's Report on 
 " Bhode Island — Interference of the Executive in the affairs of," (Pub. Doc., 
 28th Congress, Ist Session. House Representatives Report No. 546) 6-8. 
 
149] Ehode Island. 57 
 
 It prescribed no form of government nor mode of organization. 
 In fact, it still left the towns independent of each other and 
 was calculated to produce a confederation (Staatenbund) rather 
 than a union {Bundestaat)} 
 
 After the lapse of more than three years from the granting 
 of the charter, the first General Assembly of the colony met 
 at Portsmouth. The charter was then formally adopted and 
 the government systematically organized. The executive and 
 ludicial powers were largely vested in a President and four 
 Assistants,^ the latter of whom were annually elected by the 
 freemen of the several towns. A novel method of making 
 laws was then devised, by which the legislative power was 
 made to reside ultimately in the people.^ This cumbersome 
 
 * Staples' Annals, 68 ; Arnold's Hist, of R. I., I, 286. The charter granted 
 the inhabitants "full Power and Authority to rule themselves" "by such a 
 Form of Civil Government as by voluntary consent of all or the greater 
 Part of them, they shall find most suitable to their Estate and Condition." 
 {B. I. Col. Rec. I, 145). 
 
 * Chalmers' Annals. 273. They were given power " to arrest and bail 
 out or imprison all disturbers of the peace" {R. I. Col. Rec, I, 192-3); 
 and under certain circumstances, to issue summons {Ibid., 340-1), grant 
 commissions {Ibid., 347), and call special sessions of the General Assembly 
 {Ibid., 276). 
 
 As a judicial tribunal they were granted power " to hold semi-annually 
 the General Court of Tryall for the whole Colonic." {Ibid., 191, 194-5.) 
 "This court was held semi-annually and its jurisdiction extended over all 
 matters of greater weight," such as the higher class of crimes, cases between 
 town and town, between citizens and strangers ; and in general, to all 
 matters "not referred to other tribunals." (Durfee's Gleanings from the Ju- 
 dicial Hist. ofR. I, 7, 8, Pub. in E. I. Hist. Tracts, No. 18.) In 1651, this 
 tribunal was "converted into a court of appeal or review." {Ibid.) 
 
 They were also made " conservators of the peace in the Towne where they 
 live and throwout the whole Colony" {R. I. Col. Rec., I, 192), and were 
 authorized to act as Coroner in each town where they dwelt. {Ibid., 195.) 
 
 ^Any town of the colony could take the initiative in legislation. When 
 a town desired the enactment of a law which concerned the whole colony, 
 the bill was drawn up, discussed and voted upon in the town-meeting. If 
 it was favorably considered by this meeting, a copy of the proposed law 
 was sent to the other towns for similar consideration. A report of the ac- 
 tions of all the towns was then 'commended' to the "Committee for the 
 
68 Colonial Origins of New England Senates. [150 
 
 method, however, was forsaken after a brief trial and the 
 legislative power came to be largely exercised by a " Com- 
 mittee " of six from each of the towns. 
 
 The second charter, which was granted in 1663, marks the 
 entrance of the Assistants upon the legislative domain. It 
 vested the government of the colony in a Governor, Deputy 
 Governor, ten Assistants,^ and eighteen Deputies.^ The 
 
 General Courts" — a body composed of six from each town. If it was 
 found that " the major parte of the Colonie " concurred in the bill it was 
 declared " a Law till the next Generall Assembly of all the people " should 
 determine whether or not it should continue longer. In all cases where the 
 Assembly took the initiative in legislation, the bill as passed by that body 
 was referred by the Committee to the different towns, where it was voted 
 on by the people. These votes were sent " by the Towne Clarke of each 
 Towne ... .to the General Recorder," who, in the presence of the Presi- 
 dent opened and counted them. If a majority of the votes were favorable 
 to the bill it stood " as a law till the next General Assemblie " when it was 
 either confirmed or annulled. (i2. /. Col. Rec, I, 148-9; Staples' Annah, 
 65.) The Committee gradually assumed legislative authority under the 
 title of "the Court of Commissioners" until they came to be in fact the 
 General Assembly, although others who desired might sit with them. 
 {B. I. Col. Bee, I, 213, 228, 277 ; Arnold, I, 219.) Having assumed the 
 authority of the General Assembly they then assumed that title. (Arnold, 
 I, 230. ) A limit was also made to the time when the towns might inter- 
 pose their objections to acts initiated by the General Assembly, which acts 
 otherwise became laws. {B. I. Col. Bee, I, 229, 401, 429.) The referen- 
 dum was finally abolished under the second charter (B. I. Col. Bee, II, 26) 
 and in 1672 speaking "against any of the Acts and Orders" of the Assem- 
 bly "at any time, more especially in any town meeting," etc., was made a 
 crime punishable " at the discretion of the Justices." {Ibid., 439. ) 
 
 * Of the twelve State Officers — two Executives and ten Assistants — five 
 were required to be inhabitants of Newport, three of Providence and two 
 each of Portsmouth and Warwick. {B. I. Col. Bee, II, 33 ; Staples' ArniaJi, 
 141 ; Arnold, I, 302). This appears to have been the first instance in New 
 England, and probably in any of the colonies, in which the Counsellors were 
 distributed according to geographical location. An act which was passed 
 in Massachusetts in the administration of Governor Phipps (1694), re- 
 quiring all Deputies to be residents of the district they represented, is often 
 incorrectly cited as the first instance in which this principle was introduced 
 in the American colonies. 
 
 * Newport was allowed six Deputies and the three remaining towns four 
 each. Towns that might be subsequently added were to be allowed two 
 Deputies each. 
 
151] Rhode Island. 59 
 
 Assistants were elected annually and represented the colony 
 as a whole, while the Deputies were elected semi-annually^ 
 and represented the towns. 
 
 Section II. — The Executive Function. 
 
 This charter granted the Governor or Deputy Governor and 
 Assistants authority over the militia, whenever occasion might 
 arise in a recess of the General Assembly.^ This proved a 
 very important and timely provision, since ample occasion 
 soon arose for the exercise of such power. Beginning in May, 
 1667, the Governor and Council, — for such it had become in 
 name ^ — held frequent meetings in the intervals of the General 
 Assembly.^ This became necessary because of a threatened 
 invasion by the French and Dutch, with whom the mother 
 country was at enmity, and the rapidly developing hostility of 
 the Indians which finally culminated in King Philip's War. 
 Their charter powers were amplified by the General Assembly 
 which authorized them to raise and equip troops ; to order 
 their movements ; to appoint and commission officers ; and in 
 short, to take all necessary steps for defending the colony, 
 if occasion should arise.® In the exercise of these duties, 
 their acts were considered equally binding with those of the 
 Assembly.^ In 1669 they arranged for monthly meetings of 
 the Council,^ but the condition of affairs rendered it necessary 
 
 * The origin of semi-annual elections of Deputies probably dated back to 
 the act of the first General Assembly of the colony (1647) by which the 
 representative system was created. It provided that " a week before any 
 General Courte," which met twice a year, " notice should be given to every 
 Towne by the head officers that they chuse a Committee for the Transaction 
 of the affairs there." {B. I. Col. Bee., I, 147). 
 
 * B. I. Col. Bee, II, 14 ; Douglass' Summary, II, 85. 
 
 ' Within a year of the granting of the charter, the Assistants, while acting 
 in an executive capacity, assumed the title of " Council." (22. /. Ool, Bee, 
 II, 67). 
 
 * Ibid., 191 et seq. * Ibid., 205-8, 212. 
 
 6 Arnold, I, 330. ^ B. I Col. Bee., II, 256. 
 
60 Colonial Origins of New England Senates. [152 
 
 to assemble much more frequently.^ Their summary dealings 
 with Ninecraft,^ their effective action in the King's Province 
 dispute,' their prompt announcement of the royal proclama- 
 tions * and their power to treat with enemies ' and to appoint 
 town officers,' indicate the nature and extent of their executive 
 authority from time to time. In October, 1708, we find that 
 no war measures at all were taken by the General Assembly.^ 
 This was probably due to the fact that sufficient power had 
 already been granted the Council to provide for defence against 
 the enemy .^ 
 
 By the outbreak of the Revolutionary War, however, the 
 Council had almost ceased to exercise executive power as a 
 body. The matters which arose in the recess of the Assembly 
 were entrusted to special committees appointed by that body 
 when occasion arose. These committees varied in name' and 
 composition ^° from time to time, but their general powers were 
 the same as those that had been previously exercised by the 
 Governor and Council. 
 
 Section III. — The Judicial Fundion. 
 
 " The charter," says Judge Durfee, " did not create judicial 
 tribunals, but empowered the General Assembly to create 
 them ; and accordingly, the General Assembly, at its first 
 session under the charter," turned its attention to a reorganiza- 
 tion of the judicial system." The Assistants were given power 
 
 » Arnold, I, 338. 
 
 *E. I. Col. Bee, II, 264-6, 269; Arnold, I, 339 et seg. 
 
 *R. I. Col. Hec, II, 266, 298 ; Arnold, I, 338, 344-6. 
 
 *R. J. Col. Bee, II, 461-2; Arnold, I, 359. 
 
 "iJ. i. Col. Bee, II, 489-90. "Ibid., Ill, 89. 
 
 ' Ibid., IV, 48 el seq. * Arnold, II, 34. 
 
 'They were called " Committees of Safety," "Recess Committees," and 
 «* Councils of War." 
 
 «» jB. /. ai. Bee, VII, 327, 365, 383, 543 ; VIII, 22, 56, 229, 316, 419, 422, 
 471-2, 645, 616, etc. 
 
 " Cleanings, etc., 11 ; R. 1. Col. Bee., I, 25 et seq. 
 
153] Bhode Island. 61 
 
 greater even than they had exercised under the first charter. 
 In fact, they seem to have been granted almost a monopoly of 
 judicial authority, since they not only served in this capacity 
 as individuals/ but they also constituted as a body, four of the 
 most important tribunals in the colony.^ 
 
 They were required to hold " a special Court or Courts in 
 Newport for merchants and seamen, or any other," when 
 occasion arose ; ^ also semi-annual " Courts of Triall " alter- 
 nately at Providence and Warwick " for the trial of any 
 actional matter to the value of and under ten pounds, debt or 
 damages."* Matters referred to these courts finally passed 
 into the jurisdiction of the county courts upon the division of 
 the colony into counties."" 
 
 The General Court of Trials as constituted under the first 
 charter was continued under the second, though there was an 
 alteration in its composition and place of meeting. Its mem- 
 bership was confined exclusively to the Governor, Deputy 
 Governor, and at least six Assistants,® and its sessions were 
 held semi-annually at Newport.*^ In 1729 its name was 
 changed to " The Superior Court of Judicature, Court of As- 
 
 ^ They were ex officio members of the town councils (B. I. Col. Rec, II, 
 27 ; Douglass' Summary, II, 85 ; Staples' Annals, 140, 155, 172) and served 
 as Coroners in the towns where they lived. (i2. /. Col. Rec., II, 28). 
 
 * These were : (1), The special courts for Newport ; (2), Two semi-annual 
 courts for Providence and Warwick ; (3), The General Courts of Trial ; (4), 
 Probate Courts with only an appellate jurisdiction. They also constituted 
 the Court for King's Province until 1669. {R. I. Col. Rec., II, 256). 
 
 3 R. I. Col. Rec, II, 26-7. *Ibid., 31. 
 
 * For the extent of jurisdiction exercised by the county courts, the justices 
 of the peace, the General Sessions of the Peace and the Inferior Courts of 
 Common Pleas, see Acts and Laws of R. I. from 1745 to 1750, ed. 1752, 77, 
 110; R. I. Col. Rec.,y; Douglass' Summary, II, 95-96. 
 
 ® Under the charter of 1643-4 this court was composed at first of the 
 Governor and iSssistants, but in May, 1649, the Magistrates of the town 
 where the court assembled for the time, were added to the tribunal. (iJ. 1. 
 Col. Rec., I, 218). 
 
 ^ Under the former charter this court was required to be held at the dif- 
 ferent towns of the colony in succession. 
 
62 Colonial Origins of New England Senates. [154 
 
 size and General Goal Delivery," and its jurisdiction became 
 more largely appellate in both civil and criminal matters/ but 
 its composition and place of meeting, — two of its most radical 
 defects under the second charter,^ — remained unchanged. But 
 with the increase of litigation consequent upon the increase of 
 population, the Assembly was finally forced to remedy these 
 defects. The change was made in 1 747 by an act which re- 
 quired that in lieu of the Governor or Deputy Governor and 
 Assistants, this court should be held by five judges,^ a chief 
 and four associates who were to be appointed annually by the 
 General Court.* Although this act excluded the Assistants 
 from an ex officio seat, they were still eligible to judgeships in 
 this tribunal, since the offices were not declared incompatible. 
 The final step in the separation of these two offices was not 
 taken until 1780, when the doctrine of a separation of the 
 functions of government was in the ascendency in the newly 
 created states of the Union. It was then enacted by the 
 Assembly that, " Whereas it is incompatible with the consti- 
 tution of this state, for the legislative or judicial and powers of 
 government to be vested in the same persons," " for the future, 
 no member, either of the upper or lower house of Assembly 
 .... shall exercise the office of a justice of the superior court, 
 within this state, from and after the next election.'"' This 
 principle, once asserted, rapidly gained ground, and in May, 
 1783, an act was passed excluding all judges of the Court of 
 Common Pleas from the General Assembly.* There was not, 
 however, an absolute separation of the judicial and legislative 
 functions until a much later date, since the Senate still exer- 
 cised appellate jurisdiction in probate matter'' — a power which 
 
 ^ Douglass' Summary, II, 96-7. 
 
 * Durfee's Gleanings from the Judicial Hist, of R. I., 16-20. 
 
 •'' Any three of whom were suflScient to constitute a quorum. {R. I. OoL 
 Bee., V, 226). 
 
 * Acts and Laws of R. I. from 1745 to 1750, ed. 1752, 27-8. Two sessions 
 of this ctfurt were to be held annually in each county of the colony. 
 
 * R. I. Col Ree., IX, 32. Ubid., 690. 
 ' Douglass' Summary, II, 86, 97. 
 
155] Rhode Island. 63 
 
 it had inherited from the Colonial Council.^ In the early part 
 of the present century, this final remnant of judicial power was 
 transferred from the Senate to the Supreme Judicial Court,^ 
 and the Senate as a body ceased to exercise ex ojido judicial 
 authority.^ 
 
 ' In 1663 original probate jurisdiction was granted to the town councils 
 from whom appeals could be taken to the Governor and Council as " supreme 
 ordinary or judge of probates," 
 
 ''Arnold (II, 157) says this change occurred in 1802, while Durfee (33) 
 says it occurred in 1822. 
 
 ' The General Assembly, however, not only exercised judicial authority 
 throughout the colonial period, but after the beginning of statehood, it con- 
 tinued to do so in violation of the wholesome principle which had been 
 enacted in 1780 (see supra). Under their oaths of oflSce as legislators, the 
 members of the General Assembly assumed the responsibility of judges, and 
 it is difficult at times to decide from the colonial records whether the legis- 
 lative or the judicial element predominated in its proceedings. In fact, the 
 prudent limitations placed upon the range of its jurisdiction as prescribed 
 by one Assembly were often totally disregarded by another. (Cf. Arnold, 
 I, 448, with Ibid., 459-60). Since it was above the courts it could exercise 
 unlimited authority, and therefore often came in conflict with them. The 
 case of Mawney vs. Peirce came up before the Superior Court in 1752, and 
 was decided in favor of the plaintiff. The defendant then appealed to the 
 Assembly as a court with appellate jurisdiction. A new trial was granted 
 before the Assembly, and a verdict was rendered which "over-ruled the 
 decision of the highest actual judicial authority in the colony." (ij. I. 
 Col. Rec, V, 359 ; Foster's Town Oovemment in R. I., J. H. Studies, 
 Fourth Series, II, 28). The case of Randall vs. Robinson, as Judge Durfee 
 observes, not only " shows how utterly powerless the judiciary was under 
 the charter in any conflict with the legislature," but also "illustrates the 
 danger attending the exercise of judicial power by the legislative branch 
 of the government." (^Gleanings, etc., 42). In the celebrated case of 
 Trevett vs. Weeden, in 1786, the Assembly compelled the judges of the 
 Superior Court to answer for having declared one of its legislative acts un- 
 constitutional. {R. I. Col. Rec., X, 219-20; Gleanings, etc., 52, et seq). 
 
 The decision of Chief Justice Ames in the case of Taylor vs. Place ren- 
 dered in 1856 put an end to the exercise of judicial power by the Assembly. 
 That body delayed action in the case of Ives vs. Hazard which came up 
 shortly after the above decision was rendered, and was constantly before it 
 until February, 1860, when it was finally withdrawn. Judge Durfee says 
 that "since then the Assembly has never, intentionally at least, encroached 
 upon the proper province of the judiciary." {Ibid., 65.) 
 
64 Colonial Origins of New England Senates. [156 
 
 Section IV. — The Legislative Function. 
 
 As has been noted, the Assistants were given legislative 
 power by the second charter for the first time in Rhode Island 
 history.^ This charter declared the Governor or Deputy Gov- 
 ernor and at least six Assistants necessary to constitute a 
 quorum of the Assembly, — no reference being made to the 
 Deputies as an essential part of that body. 
 
 Being thus constituted, the Assembly was given power to 
 admit freemen,^ to establish courts and other necessary offices, 
 to elect and commission officers, to make and repeal laws and 
 ordinances, to regulate elections, and to alter or annul sen- 
 tences of the various courts of the colony.^ The only restric- 
 tion upon the exercise of this authority was imposed by an 
 ingeniously worded clause of the charter which virtually 
 annulled itself.* Not only was the legislature of the colony 
 thus freed from royal interference, but it was also independent 
 of the Governor, since he was not given the veto power." The 
 people of Rhode Island were therefore able to conduct their 
 government in the same spirit of independence that had pre- 
 viously characterized the towns. 
 
 To be sure the failure of the charter to recognize the pres- 
 ence of a majority of the Deputies as necessary to constitute a 
 quorum, was soon noted by the people, and in November, 1672, 
 
 ' See supra, p. 58. 
 
 * This provision led to the final displacement of the charter in 1842. 
 
 'R. I. Col. Rec, II, 9-10; Douglass' Summary, II, 81-2; Chalmers' 
 Annals, 275. 
 
 * It required that the " laws, ordinances and constitutions soe made, bee 
 not contrary and repugnant unto, butt, as neare as may bee, agreeable to 
 the lawes of England, considering the nature and constitution of the place 
 and people." 
 
 *In 1732 the law officers of the Crown decided that "by the charter of 
 Rhode Island the governor had not veto power," and " more than all the 
 King himself had no power reserved in the charter either to sanction or to 
 veto any act of the Assembly that was not inconsistent with the laws of 
 England." (Arnold, II, 108; Palfrey, IV, 130-1.) 
 
157] Rhode Island. 66 
 
 the Deputies made a formal demand for greater recognition. 
 After citing the privileges accorded all English citizens by 
 the Petition of Rights, they claimed, as "representatives of 
 the freemen" of the colony, the prerogatives accorded the 
 House of Commons in England. A reform bill was then 
 passed requiring: (1) That "noe tax nor rate from henceforth 
 shall be made layde or levied on the inhabitants of this Collony, 
 without the consent of the Deputys present pertaining to the 
 whole Collony ; " ^ and (2) That " in all weighty matters, 
 wherein the King's honor is most concerned, and the peoples 
 antient right and libertys most jeoparded . . . the Assembly 
 shall be the major part of the Deputys belonging to the whole 
 Collony, as there must be the major part of the Assistants (by 
 the charter). Butt otherwise, such said act (if made without 
 the major part of Deputys present), such said act shall be voyd 
 and of none effect." ^ Thus, instead of equalizing the power 
 of these bodies, an advantage was given to the Deputies, since 
 they outnumbered the Assistants, and all acts were passed by 
 a joint vote. This inequality was not offset until 1696,^ when 
 the Assembly was divided into two co-ordinate branches, each 
 having power to originate any bill * and to negative the legis- 
 
 ^ In May, 1678, another restraint upon the taxing power of the Assembly 
 was imposed by an act which required notice of all levies to be given in 
 advance to all towns of the colony. (Arnold, I, 441). 
 
 *B. I. Col. Bee, II, 472-3; Arnold, I, 364-5. 
 
 * For more than thirty years after its organization the Assembly was a 
 unicameral body. This was not, however, in harmony with the ideas of the 
 people, since the colonial records (II, 63) show that it had become "a long 
 agitation" as early as the second meeting of the Assembly in October, 1664. 
 By numerous expedients and compromises final action on the matter was 
 deferred until May, 1 696, when the two houses separated, and the Governor, 
 Deputy Governor and ten Assistants became the Upper and the Deputies 
 the Lower House of the Assembly. See Prof. T. F. Moran's Rise and Devel- 
 apment of the Bicameral System in America, J. H. U. Studies, Thirteenth 
 Series, V, 22-6. 
 
 * In Khode Island alone of all the New England colonies the Senate had 
 undisputed power to originate money bills as late as the Bevolution. 
 
 6 
 
66 Colonial Origins of New England Senates. [158 
 
 lative acts of the other.* The relations between the two bodies 
 continued unaltered throughout the remainder of the colonial 
 period, and in fact down to the present time.^ When the 
 colony became independent of Great Britain the charter as a 
 constitution of civil government was abrogated, yet the form 
 of government which was established by it was continued by 
 common consent without any essential change,^ and throughout 
 the constitution-making period which followed the close of 
 the struggle with England, Rhode Island, like Connecticut, 
 retained her old charter as a state constitution. After the 
 close of the Revolutionary War, the Upper House of the 
 Assembly, which had been called the " Council," was dignified 
 by the more republican and euphonious title of " Senate." 
 
 Section V. — The Constitution of 1842. 
 
 This instrument provided that the government of the state 
 should still be " distributed into three departments, the legis- 
 lative, executive, and judicial."* 
 
 The chief executive power was vested in a Governor and a 
 Lieutenant Governor, both of whom were elected annually.^ 
 
 The judicial power was vested in a Supreme Court and in 
 such inferior courts as the General Assembly might ordain 
 and establish.® 
 
 The legislative function was vested in a General A&sembly 
 which continued to exercise the powers it had " hitherto exer- 
 cised, unless prohibited by the constitution."^ It was com- 
 
 ^ Rhode Island is the only New England State in which the Governor 
 and Deputy Governor are still ex officio members of the Senate and the 
 Governor is denied a veto power. 
 
 * See infra. 
 
 3 Pease and Niles' Gazetteer of Conn, and R. I. (1819), 313. '•Art. III. 
 
 *Art. VII, Sec. 1, In 1854 the pardoning power was placed in the hands 
 of the Governor "with the advice and consent of the Senate." (Amend- 
 ments to the Ckjnstitution of 1842, Art. II. ) 
 
 •ArU X, Sec. 1. ^Art. IV, Sec. 10. 
 
159] Rhode Island. 67 
 
 posed of two branches — a House of Representatives and a 
 Senate.^ The former was based upon population, each town 
 being entitled to at least one Representative and not more than 
 one-sixth of the whole number.^ The Upper House was based 
 upon a different and somewhat arbitrary principle, — only one 
 Senator being elected annually from each town regardless of 
 population.^ As in colonial times, both bodies continued to 
 meet together in " Grand Committee " for the transaction of 
 matters pertaining to elections.* When sitting apart, the 
 powers and privileges of both continued to be co-equal in 
 every respect. The now effete and totally illogical principle 
 of limiting the prerogative of the Senate in the origination 
 of money-bills was still ignored as it had always been in Rhode 
 Island. Due caution was shown in regard to public finance 
 by the incorporation of a provision that a two-thirds vote " of 
 the members elected to each house," was necessary to appro- 
 priate " public money or public property for local or private 
 purposes."^ The spirit of regard for the primary source of 
 authority which has always characterized Rhode Island both 
 as a colony and a state was not totally ignored in this constitu- 
 tion. There were two provisions which restricted the power of 
 the General Assembly : (1) It was not allowed, except under 
 certain circumstances, " to incur State debts to an amount ex- 
 
 lArt. IV, Sec. 2. «Art. V, Sec. 1. 
 
 'Art. VI, Sec. 1. This protectioi^ of the rights of the minority is one of 
 the fundamental principles for which Rhode Island contended upon the 
 formation of the Federal Constitution. This " most conservative element 
 in their whole system of government" was incorporated into the Constitu- 
 tion of 1842 in order to " maintain unimpaired the equal rights of every 
 section of the State," and to " prevent any one interest from engrossing a 
 dangerous portion of political power" (Mr. Goddard's Address on the Oc- 
 casion of the change in the Oivil Government of R. L, 31), since such a city as 
 Providence, which at that time had 25,000 inhabitants and therefore wielded 
 in the House one-sixth of the power, was entitled to exert no more power 
 in the Senate than the town of Jamestown, which at that time had less than 
 400 inhabitants. (Ibid., 30.) 
 
 *Art. IV, Sec. 18 ; VIII, Sees. 3, 7 ; X, Sees. 4, 5. *Art. IV, Sec. 14. 
 
68 Colonial Origins of New England Senaies. [160 
 
 ceeding fifty thousand dollars," " without the express consent 
 of the people ; " ^ and (2) all bills for the creation of corpora- 
 tions, with certain stipulated exceptions, should " be continued 
 until another election of members of the General Assembly," 
 and "such public notice of the pendency thereof " should "be 
 given as may be required by law."^ 
 
 No changes were made in the personnel of the Senate. The 
 Governor still held his position as ex offixiio President of that 
 body, and as such, had a casting vote " in case of equal divis- 
 ion," but no veto power.^ The Lieutenant Governor also 
 retained his position as an ea? offi,Gio member, having equal 
 privileges with the rest of the Senators.* 
 
 As in other states, the Senate retained a fragment of judicial 
 authority in its power to try impeachments.* A person con- 
 victed in such a trial was also liable to criminal " indictment, 
 trial, and punishment according to law." ^ 
 
 » Art. IV, Sec. 13. * Art. IV, Sec. 17. » Art. VI, Sec. 2, 
 
 * Art VI, Sec. 1 . » Art. XI, Sec. 2. « Art. XI, Sec. 3. 
 
CHAPTER V. 
 
 Conclusions. 
 
 Section I. — Origin of the New England Senates. 
 
 If the facts here set forth have been correctly apprehended, 
 the State Senates of New England did not originate in a desire 
 to transplant to American soil the English House of Lords ; 
 but on the contrary, they are in their most important and 
 essential features, the results of a natural course of develop- 
 ment under circumstances and conditions peculiar to the colo- 
 nies themselves.^ To be sure they bear some crude analogies 
 to the House of Lords, but analogies alone are dangerous 
 premises from which to deduce conclusions as to the origin 
 of institutions, since they may be due not to imitation but 
 to common race instincts or to similarity of circumstances.^ 
 
 ^ This phase of the subject has been presented by Janaes Harvey Robinson 
 in the AnTiak of Amer. Acad., I, 203-243, and by William C. Morey in ibid., 
 529-557, also in ibid., IV, pt. 1, 201-232. 
 
 * " A strong current of similar events will produce coincidences in the 
 history of nations whose whole institutions are distinct ; much more will 
 like circumstances force similarly constituted nations into like expedients ; 
 nay, great legislators will think together even if the events that suggest the 
 thought be of the most dissimilar character. No amount of analogy between 
 two systems can by itself prove the actual derivation of the one from the 
 other." (Stubbs' Conslilutional Hist, of Eng., second edition, I, 207). 
 
 " We see the same political phsenomena repeating themselves over and 
 over again in various times and places, not because of any borrowing or 
 imitation, conscious or unconscious, but because the like circumstances have 
 led to the like results." (Freeman's Comparative Polities, 32). 
 
 69 
 
70 Colonial Origins of New England Senates. [162 
 
 These analogies between the S^ate and the House of Lords 
 lose their force as arguments when we consider the facts that : 
 
 1. The Councils from which the Senates developed, origi- 
 nated in ideas foreign to the English political system. The 
 charters upon which the government of the colonies were 
 based, owe their origin not to the political but the commercial 
 policy of the mother country/ Hence the Council of Massa- 
 chusetts was evolved from the Board of Directors of a trading 
 company^ and furnished in turn, the model for those of 
 Connecticut ^ and New Hampshire;^ while in Rhode Island 
 it was merely a revival of the Hebrew Court of Elders,® and 
 previous to the granting of the charter of 1663 by which its 
 government was assimilated to the common model, this body 
 had no legislative power whatever. 
 
 2. The transition from Council to Senate was not made 
 through any conscious efforts to conform to British models. 
 The preceding pages of this study have shown that the suc- 
 cessive stages of this development, — the introduction of the 
 representative system,^ the granting of a negative power,'^ the 
 introduction of the bicameral system,* the loss of ex officio 
 membership in the Councils,^ the gradual diminution and 
 final disappearance of their executive and judicial authority, 
 and the differentiation of the powers and privileges of the two 
 branches of the legislatures^" — either followed from inter- 
 colonial influences or from efforts on the part of the colonists 
 to remove the points of friction in their crudely organized 
 governments, and thus to adapt their primitive institutions to 
 American conditions. If, again, the colonists had imitated a 
 common model in the development of this institution their 
 
 ^ For an able presentation of this subject see Prof. Morey's Oenesis of a 
 Writlen Constitution, Annals of the Amer. Acad., Vol. I, p. 529 et seq., April, 
 1891. 
 
 ^ Supra, p. 10. ^ Supra, pp. 28, 30, note 2, 
 
 * Supra, p. 46. ^ Supra, p. 56. ^ Supra, pp. 18, 56, note 1. 
 
 •» Supra, pp. 20, 36-7, 46, 65. 'Supra, pp. 20-1, 37, 46, 65. 
 
 » Supra, pp. 21-2. ^^ Supra, pp. 16, note 1, 22-3, 37. 
 
163] Conelusions. 71 
 
 results would have exhibited more features in common. On 
 the contrary, however, at the formation of the Federal Con- 
 stitution they differed in almost every characteristic feature, — 
 in size,^ composition,^ qualification,^ basis of election,* powers 
 and privileges.^ In fact, as Prof. Morey forcibly observes, 
 " it might well be said that they were common only in that 
 feature, in which they differed from the English House of 
 Lords, namely, the fact that they were all based upon popular 
 election." ^ 
 
 ^ The size of the early state Senates in New England were as follows : 
 Massachusetts, thirty -one {supra, p. 27, note 2) ; Connecticut, twelve {supra, 
 pp, 30, note 4, 38) ; New Hampshire, twelve {supra, p. 52), and Ehode 
 Island, ten {supra, p, 58). 
 
 * In Massachusetts the Governor and Lieutenant-Governor ceased to be 
 ex officio members of the Senate in the colonial era {supra, pp. 21-2). In Con- 
 necticut both retained their seats in this body until 1818 {supra, pp. 38-9). 
 In New Hampshire the Senate was composed of twelve Senators, presided 
 over by the Presidentof the state who had a vote equal with the others {supra, 
 p. 62). In Rhode Island the Governor and the Lieutenant-Governor still 
 have a seat in the Senate the former being ex officio President {supra, pp. 66, 
 note 1, 68). 
 
 'The qualifications for Senator after the Revolution were as follows: 
 Massachusetts — must be an inhabitant of the state five years and of the 
 district at the time of election, have a freehold estate of £300 or a personal 
 estate of £600 {supra, p. 26, note 1 ) ; Connecticut — must be a citizen of the 
 state {supra, p. 39, note 2) ; New Hampshire — must be a protestant, pos- 
 sessed of a freehold estate of £200 within the state, an inhabitant of the state 
 for seven years preceding election and of the district from which chosen at 
 the time of election {supra, p. 23) ; Rhode Island — citizenship in one of 
 the four principal towns of the colony {supra, p. 67). 
 
 * In Massachusetts the Senators were chosen from electoral districts {supra, 
 p. 27, note 2) ; in Connecticut from the state at large {supra, p. 38) ; in New 
 Hampshire from electoral districts {supra, p. 52) ; and in Rhode Island from 
 the different towns of the state {supra, p. 67). 
 
 *In Massachusetts {supra, p. 27), and New Hampshire {supra, p. 53) the 
 Lower House alone could originate money bills, while in Rhode Island it 
 could be done by either branch {supra, p. 65, note 4). In Massachusetts 
 and New Hampshire the Upper House alone had power to try impeach- 
 ments. 
 
 6 Annals Amer. Acad., IV, pt. I, p. 22, September, 1893. 
 
72 Colonial Origins of New England Senates. [164 
 
 Section II. — Forces which gave Direction to the Development.^ 
 
 It is difficult to account in a satisfactory way for all the 
 phenomena which appear in the history of this evoltition from 
 Council to Senate. Of the many complicated causes which 
 determined the course of this development, from time to time, 
 the following appear to the writer as worthy of mention : 
 
 1. lAmitation of the Number of Counsellors. — In all these 
 colonies the number of Counsellors was fixed by charter and 
 could not therefore increase with the growth of population^ as 
 could the Deputies or Representatives chosen by the towns. 
 Since the General Courts were at first unicameral bodies, this 
 limitation threatened to destroy the power of the Councils 
 which formed a hopelessly small and constantly diminishing 
 proportion in the membership of these bodies. This cause, 
 enforced by the constant clashing of authority, led to two im- 
 portant results in the evolution of the Councils : (1) The 
 granting of a negative vote to each of the constituent parts of 
 the General Courts over the acts of the other,^ and (2) The 
 introduction of the bicameral system.* 
 
 2. Extent of Authority, and Gi'owth of the Colonies. — The 
 Councils not only enjoyed a legislative power which was co- 
 ordinate with that of the popular branches, but their authority 
 also extended originally over the executive and judicial do- 
 mains. Thus the body which was incapable of increase was 
 granted powers which extended into every department of gov- 
 ernment, while the larger and more elastic body, numerically 
 speaking, was preeminently a legislative body. Upon the 
 
 * No author, within the knowledge of the writer, has hitherto attempted 
 to go into the details of this discussion. 
 
 * It is not probable that the colonists, who were jealous of the aristocratic 
 tendencies of these bodies, desired to increase their number. See 8upra. 
 
 ^ Supra, pp. 20, 36-7. New Hampshire was an exception. Having had 
 the benefit of the experiences of Massachusetts she settled this question 
 without a struggle {supra, p. 46). 
 
 * Supra, pp. 20-1, 37, 65. 
 
166] Conclusions. 73 
 
 growth ©f the colonies and the consequent increase of public 
 business, it became impossible for the Counsellors to attend to 
 their numerous and constantly accumulating duties. Since 
 their number was not permitted to increase to a degree com- 
 mensurate with the burdens of their office, the problem could 
 only be solved by restricting the scope of their authority. 
 This resulted in a diminution of their executive and judicial 
 duties in the following ways : (1) By the delegation of their 
 powers, especially those of a judicial nature;^ (2) By the cre- 
 ation of judges outside their ranks ;^ and (3) By a reduction 
 of the number of Counsellors necessary to constitute a quorum.' 
 3. Illogical Principle upon which Power was Distiibuted. — 
 Instead of having a wholesome system of checks and balances, 
 the colonial governments present a union of the most incom- 
 patible principles of authority. The Counsellors were at the 
 same time intrusted with the making, the interpreting, and 
 the executing of laws. As members of the General Courts, 
 which constituted the supreme judicial tribunal of the colonies, 
 they heard and were allowed either to help determine or at 
 least to express opinions on cases of appeal from their verdicts 
 as courts of the first instance. They were also required to 
 act upon bills for the regulation of the judicial system — in 
 which they were of course personally concerned — before such 
 bills could have the force of law. The most serious defect of 
 such a distribution of power was perhaps its effect upon the 
 offices of relatively small importance. Since the Counsellors 
 acted in several capacities, they were usually chosen with re- 
 gard to their most important function. This principle of 
 choice might lead to the selection of an efficient legislative 
 body, but since those most efficient in legislation are not 
 always the most capable in administration and adjudication, 
 one or both of these functions must suffer by such a union. 
 The colonists saw and opposed some of these incongruities 
 
 ^Svkpra, pp. 17, 33-6, 45, 62. 'Ibid. 'Supra, p. 10, note 2. 
 
 6 
 
74 Colonial Origins of New England Senates. [166 
 
 from time to time, but were unable to effect the necessary 
 changes before the formation of their State Constitutions. 
 
 4. Introduction of the Idea of a Complete Separation of the 
 Functions of Government. — Although the growth of the colo- 
 nies and the illogical distribution of power tended to a differ- 
 entiation of governmental functions, it is not probable that 
 this principle would have been so clearly and uniformly 
 applied as it is at present, if the Montesquieu^ doctrine of a 
 complete separation of the functions of government had not 
 gained an ascendency in the colonies just as they were entering 
 the great constitution-making epoch in their history. Hence 
 the introduction of this idea must have hastened, at least, the 
 final step in the evolution of the Senate. 
 
 5. Inter-Goloniallnflaences. — This force is particularly notice- 
 able in the New England colonies, since their laws and insti- 
 tutions are alike in many respects, and come for the most part 
 from the same mother colony. This natural predilection was 
 further increased by their close proximity to each other and 
 their isolation from the mother country, their homogeneity in 
 race and language, and their common dangers and ambitions. 
 These things produced an intercourse among them, which 
 resulted in the general dissemination of American principles. 
 
 6. English Charter's and Precedents. — The various charters 
 of the New England colonies have a common origin and there- 
 fore resemble in many respects. They furnished the broad 
 
 '"Zneret hat Montesquieu das moderne Princip rait Naclidruck und mit 
 Erfolg verkiindet." (Bluntschli's Slalslehre, 588.) 
 
 " Lorsque, dans, la raSine personne ou dans le m£me corps de magistra- 
 ture, la puissance legislative est r^unie i la puissance ex^cutrice, il n'y a point 
 de liberl^ parce qu'on peut craindre que le mSrne monarque ou le m6me 
 s^nat ne fasse des lois tyranniques pour les ex^cuter tvranniquement. 
 
 " II n'y a point encore de liberie si la puissance de juger n'est pas s^par^e 
 de la puissance legislative et de rex^cutrice. Si elle etait jointe & la puis- 
 sance legislative, le pouvoir sur la vie et la liberty des citoyens serait arbi- 
 traire; car le juge serait legislateur. Si elle etait jointe & la puissance 
 executricc, le juge pourralt avoir la force d'un oppresseur." (Montesquieu's 
 De UEaprU de Lois, Book XI, Ch. VI.) 
 
167] (hndusions. 76 
 
 outlines of government and thus gave general direction to the 
 development of institutions which are distinctly American. 
 The colonists were also conversant with the English Consti- 
 tution and began at an early day to cite such English precedents 
 as might be in their favor. The extent of both these influ- 
 ences may, however, be easily exaggerated, since the most 
 beneficent features of colonial government, — the representative 
 system for example* — were not established by any charters 
 until they had become established in the colonies ; and again, 
 the assertion of a claim to the benefits bestowed by any 
 particular English precedent was by no means tantamount to 
 a concession on the part of those with whose ideas or interests 
 it came in conflict. For instance, the right of the popular 
 branch to originate money bills was asserted in Massachusetts 
 at a comj)aratively early date. This demand was doubtless 
 based upon English precedent, but since the charter contained 
 no such provision, the point at issue was not finally conceded 
 without a scries of conflicts extending over a long jxiriod of 
 time. In fact, English precedents had to fight their battles 
 anew on American soil, and were seldom incorporated into the 
 government of the colonies before they had shown themselves 
 worthy of a place in our political system. Hence those 
 features which were usually claimed as an inheritance and 
 consciously adopted, were " not so much the customary forms 
 which entered into the structure of the British government as 
 those chartered privileges which might serve to protect them 
 from the supervision and interference of autocratic power.'" 
 
 Section III. — Inherited Characteristics of tlie Senates. 
 
 Although, as has been noted, the Councils in the New 
 England colonics presented many essential points of contrast 
 to each other, there is, nevertheless, a certain degree of unity 
 
 ^Supra, p. 18. 
 
 •Morey's First Stale CkmsiiltUions, Annals Amer. Acad., Vol. IV, pt. 1, 32, 
 September, 1893. 
 
76 Colonial Origins of New England Senates. [168 
 
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 2. Personnel. — The Councils were composed of the more 
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 chosen by towns or hundreds. 
 
 4. Term of Office. — The Counsellors were chosen for a long 
 term,* while the Representatives were always chosen for a brief 
 period. 
 
 ^ The method by which the Couosellors were chosen varied from time to 
 time. See supra. 
 
 ' In Massachusetts and Connecticut the Counsellors had at first practi- 
 cally a life-tenure. See supra. 
 
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