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Acts and resolves passed by the General Court of Massachusetts, Volume 3 online

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the council, shall have a ri^ht to adjourn or prorogue
the general court, not exceeding ninety days, as he shall
determine the public good shall require.

Vn. The governor of this conunon wealth, for the time
being, shall be the commander-in-chief of the army and
navy, and of all the military forces of the state, by sea
and land ; and shall have fall power, by himself, or by
any conmiander, or other officer or officers, from time to
time, to train, instruct, exercise, and govern the militia
and navy ; and, for the special defence and safety of the
oonmionwealth, to assemble in martial array, and put in
wariike posture, the inhabitants thereof, and to lead and
conduct them, and with them to encounter, i*epel, resist,
expel, and pursue, by force of arms, as well by sea as by
land, within or without the limits of this commonwealth,
and also to kill, slay, and destroy, if necessary, and con-
quer, by all fitting ways, enterprises, and means whatso-
ever, all and every such person and persons as shall, at
any time hereafter, in a hostile manner, attempt or enter-
prise the destruction, invasion, detriment, or annoyance
of this conmion wealth ; and to use and exercise, over the
army and navy, and over the militia in actual service, the
law-martial, in time of war or invasion, and also in time
of rebellion, declared by the legislature to exist, as occa-
sion shall necessarily require ; and to take and surprise,
by all ways and means whatsoever, all and every such
person or persons, with their ships, arms, anununition,
and other goods, as shall, in a hostile manner, invade, or
attempt the invading, conquering, or annoying this com-
monwealth; and that the governor be intrusted with all
these and other powers, incident to the offices of cap-
tain-general and conmiander-in-chief, and admiral, to be
exercised agreeably to the rules and regulations of the con-
stitution, and the laws of the land, and not otherwise.

Provided, that the said governor shall not, at any time
hereafter, by virtue of any power by this constitution



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CO^IMONWEALTH OF MASSACHUSETTS. 21

granted, or hereafter to be granted to him by the legis-
lature, transport any of the inhabitants of this common-
wealth, or oblige them to march out of the limits of the
same, without tiieir free and voluntary consent, or the con-
sent of the general court ; except so far as may be neces-
sary to march or transport them by land or water, for the
defence of such part of the state to which they cannot
otherwise conveniently have access.

VULl. The power of pardoning offences, except such Governor and
as persons may be convicted of before the senate by an p«nion<SiSnoM,
impeachment of the house, shall be in the governor, by •*®^*»**®-
and with the advice of council ; but no charter of par-
don, granted by the governor, with advice of the council
before conviction,. shall avail the party pleading the same, Bot not before
notwithstanding any general or particular expressions iSSu»M^izi.
contained therein, descriptive of the offence or offences
intended to be pardoned.

IX. All judicial officers, [the attorney-general,] the jndiow ©«.
solicitor-general, [all sheriff,] coroners, [and registers of SSmi^JJai*!^
probate,] shall be nominated and appointed by the gov- i?S*J^iom
emor, by and with the advice and consent of the council ; ^^5S*y°
and every such nomination shall be made by the governor, gMierai.§«j •
and made at least seven days pnor to such appointment. Art. xvn.

FlorproTtoloii m to eUetion of ■bertift, ngUten of probate, etc., mo amendmants.
Art. XCC. For provlalon as to appointmant of notarial pnbUo, aae amandmants,
Art,IV.

X. The captains and subalterns of the militia shall be Miutuoffloen,
elected by the written votes of the train-band and alarm iSSau^Jlif
list of their respective companies, [of twenty-one years Vj^^Si^"^^
of age and upwards ;] the field officers of regiments shall »«»ts,Art.v.
be etected by the written votes of the captains and subal-
terns of their respective regiments ; the brigadiers shall be
elected, in like manner, by the field officers of their respec-
tive brigades ; and such officers, so elected, shall be com- Howeommu.
missioned by the governor, who shall determine their rank. **^°****

The legislature shall, by standing laws, direct the time Kiaetionof
and manner of convening the electors, and of collect- ****•"•
ing votes, and of certifying to the governor, the officers
elected.

The major-generals shall be appointed by the senate and JS5i!?*i''*°uSed*
house of representatives, each having a negative upon the andoommu.
otiier ; and be commissioned by the governor.

For prorlaiona aa to appointmant of a oommlaiary-genaral, aae amendmanta, Art. FV.

And if the electors of brigadiers, field officers, captains 2?3»*^» ^^^
-or subalterns, shall neglect or refiise to make duch elec- etc. ' *^^^'



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22 CONSTITUTION OF THE

tions, after being duly notified, according to the laws for
the time being, tiien tiie governor, with advice of council,
shall appoint suitable persons to ffll such offices.
M^uifo^ed, [And no officer, duly conunissioned to command in the
sSp^«S^*by i^yiti^j she'll ^ removed from his office, but by the address
ameDdmento, of both houscs to the govcmor, or by feir trial in court-
martial, pursuant to the laws of the conunon wealth for the
time being.]
bow^iSp^Sd'.' The conmianding officers of regiments shall appoint
their adjutants and quartermasters ; the brigadiers their
brigade-majors ; and the major-generals their aids ; and
the governor shall appoint the adjutant-general.
b^apiJototSi. "^^ governor, with advice of council, shall appoint all
officers of the continental army, whom by the confedera-
tion of the United States it is provided that this common-
wealth shall appoint, as also all officers of forts and
garrisons,
o^aixation of "jhc divisious of the militia into brigades, regiments, and
companies, made in pursuance of the militia laws now in
force, shall be considered as the proper divisions of the
militia of this commonwealth, until the same shall be
altered in pursuance of some future law.
dIS?S^'^m the XI. No moneys shall be issued out of the treasury of
JJ^^'Tj^ this conmionwealtii, and disposed of (except such sums as
isAfien.ws. may be appropriated for the redemption of bills of credit
or treasurer's notes, or for the payment of interest arising
thereon) but by warrant under the hand of the governor
for the time being, with the advice and consent of the
council, for the necessary defence and support of the cx)m-
monwealth ; and for the protection and preservatio/i of
the inhabitants thereof, agreeably to the acts and resolves
of the general court.
b^^'il^eSs.,!© Xn. All public boards, the conunissary-general, all
mjkequarteriy superintending officers of public magazines and stores,
belonging to this commonwealth, and all conmianding
officers of forts and garrisons within the same, shall once
in every three months, officially, and without requisition,
and at other times, when required by the governor, deliver
to him an account of all goods, stores, provisions, ammu-
nition, cannon with their appendages, and small arms
with their accoutrements, and of all other public property
whatever under their care respectively ; distinguishing the
quantity, nmnber, quality and kind of each, as particu-
larly as may be ; together with the condition of such forts
and garrisons; and the said commanding officer shall



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COMMONWEALTH OF MASSACHUSETTS. 23

exhibit to the governor, when required by him, true and
exact plans of such forts, and of the land and sea or har-
bor or harbors, adjacent.

And the said boards, and all public officers, shall com-
municate to the governor, as soon as may be after receiv-
ing the same, all letters, despatches, and intelligences of a
public nature, which shall be directed to them respectively.

Xin. As the public good requires that the governor smaryof
should not be under the undue influence of any of the ^^^•"»^''
members of the general court by a dependence on them
for his support, diat he should in all cases act with free-
dom for the benefit of the public, that he should not have
his attention necessarily diverted, from that object to his
private concerns, and that he should maintain the dignity
of the conmionwealth in the character of its chief magis-
trate, it is necessary that he should have an honorable
stated salary, of a fixed and permanent value, amply suffi-
cient for those purposes, and established by standing laws :
and it shall be among the first acts of the general court,
after the conmiencement of this constitution, to establish
such salary by law accordingly.

Permanent and honorable salaries shall also be estab- saiarietof jm.
lished by law for the justices of the supreme judicial coiirt. judicui«mrt?*

And if it shall be found that any of the salaries afore- siamriwi to b«
said, so established, are insufficient, they shall, from time Sui^otont.
to time, be enlarged, as the general court shall judge
proper.



CHAPTER II.

Section H.

Lieutenant-Governor.

Article I. There shall be annually elected a lieu- Lieutenant- .
tenant-governor of the commonwealth of Massachusetts, SiVimd'quau-
whose title shall be — His Honor ; and who shall be SSSidmMuT
qualified, in point of [religion,] [property,] and residence x^r^^*^^
in the commonwealth, in the same manner with the gov-
ernor ; and the day and manner of his election, and the
qualifications of the electors, shall be the same as are re-
quired in the election of a governor. The return of the how chosen,
votes for this oflBcer, and the declaration of his election,
shall be in the same manner ; [and if no one person shall J/SSii^ ©ro.
be found to have a majority of all the votes returned, the ^^^'^eni
vacancy shall be filled by the senate .and house of repre- Art.xiv.



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24



CONSTITUTION OF THE



sentatives, in the same manner as the governor is to be
elected, in case no one person shall have a majority of the
votes of the people to be governor.]

n. The governor, and in his absence the lieutenant-
governor, shall be president of the council, but shall have
no vote in council; and the lieutenant-governor shall
always be a member of the council, except when the chair
of the governor shall be vacant.

in. Whenever the chair of the governor shall be

jc^8o^™o'. vacant, by reason of his death, or absence from the com-
monwealth, or otherwise, the lieutenant-governor, for the
time being, shall, during such vacancy, perform all the
duties incumbent upon the governor, and shall have and
exercise all the powers and authorities, which by this con-
stitution the governor is vested with, when personally
present.



PrMident of
cotincll.
Lieutenant-
governor »
member of,
except, etc.



Llentenant-
governor to be



CoTmdl.
Number of
eouncillore
changed to
eight.
See amend-
ments, Art.
XVI.



Number; from
whom, and how
chosen.
Modified by
amendments.
Arts. X. and

xm.

Superseded by
amendments,
Art. XVI.



If senators be-
come council.
iQrs, their seats
to be vacated.



CHAPTER II.
Section m.

Council^ and the Marnier of settling Elections hy the Legis-

lature.

Article I. There shall be a council for advising the
governor in the executive part of the government, to con-
sist of [nine] persons besides the lieiitenant-govemor,
whom the governor, for the time being, shall have full
power and authority, from time to time, at his discretion,
to assemble and call together ; and the governor, with the
said councillors, or five of them at least, shall and may,
from time to time, hold and keep a council, for the order-
ing and directing the affairs of the commonwealth, accord-
ingto the laws of the land.

n. [Nine councillors shall be annually chosen from
among the persons returned for councillors and senators,
on the last Wednesday in May, by the joint ballot of
the senators and representatives assembled in one room ;
and in case there shall not be found upon the first choice,
the whole number of nine persons who will accept a seat
in the council, the deficiency shall be made up by the
electors aforesaid from among the people at large ; and
the number of senators left shall constitute the senate
for the year. The seats of the persons thus elected from
the senate, and accepting the trust, shall be vacated in the
senate.]



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COMMONWEALTH OF MASSACHUSETTS. 25

m. The councillors, in the civil arrangements of the *^^Jj^
conimonwealth, shall have rank next after the lieutenant- ^ ^"*
governor.

IV. [Not more than two councillors shall be chosen No district to
out of any one district of this conmionwealth.] two!™**"

Bnpeneded by amendmento, Art. XVI.

Y. The resolutions and advice of the council shall be luguterof
recorded in a register, and signed by the members present ; ^'^^^^^^
and this record may be called for at any time by either
house of the legislature ; and any member of the council
may insert his opinion, contrary to the resolution of the
majority.

VI. Whenever the office of the governor and lieuten- oouncutoexer-
ant-governor shall be vacant, by reason of death, absence, ^Tgo^raoTiA
or otherwise, then the council, or the major part of them, ••^» •*••
shall, during such vacancy, have full power and authority
to do, and execute, all and every such acts, matters, and
tilings, as the governor or the lieutenant-governor might
or could, by virtue of this constitution, do or execute, if
they, or eitfier of them, were personally present.

Vn. [And whereas the elections appointed to be made, siootioni may
by this constitution, on the last Wednesday in May annu- SSSi^eS^
ally, by the two houses of the legislature, may not be
completed on that day, the said elections may be adjoinrned
fi:x>m day to day untU the same shall be completed. And s™J^^^y
the order of elections shall be as follows : the vacancies in 'gj*°'^?i*'' d
the senate, if any, shall firdt be filled up ; the governor xxv.
and lieutenant-governor shall then be elected, provided
there should be no choice of them by- the people ; and
afterwards the two houses shall proceed to the election of
the council.]



CHAPTER II.

Section IV.

Secretary J Treasurer ^ Commissary^ etc.

Akticle I. [The secretary, treasurer and receiver- secretary, etc.,
general, and the conunissary-general, notaries public, and] how choien.**
naval officers, shall be chosen annually, by joint ballot of S^^^^o?"
the senators and representatives in one room. And, that J5S®iS7;^®""
tiie citizens of this conmionwealth may be assured, from ^d^J^Si^Y^d
time to time, that the moneys remaining in the public attomey-gen-
treasury, upon the settlement and liquidation of the pub- menufA^*" *



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26



CONSTITUTION OF THE



Traasnrer in-
eligible fbr
more than five
snooeeslTe
yean.



Secretary to
keep records;
to attend the
governor and
coTudl, ete.



lie accounts, are their property, no man shall be eligible
as treasurer and receiver-general more than five years
successively.

For proTialon at to iq>poiiitment of notarlee pablio and the oommiMary-general, tee
amendmenta, Art. IV.

n. The records of the commonwealth shall be kept in
the office of the secretary, who may appoint his deputies,
for whose copduct he shall be accountable ; and he shall
attend the governor and council, the senate and house of
representatives, in person, or by his deputies, as they shall
respectively require.



Tennre of all
eommiaaioned
officers to be
expreeeed.
Judicial offlcere
to hold office
daring good*
behavior, ex-
cept, etc.
Bnt may be
removed on
addreis.



Jnatioee of en-
preme Judicial
court to give
opinions when
reqnired.
m Mass. «00.
126 Mass. 667,
681.

JnsUces of the
peace: tenure
of their office.
80aah.684.



For removal of
Justices of the



amendm ents.
Art, JLSJLYlL



Provisions for

holding probate

courts.

12 Gray, 147.



CHAPTER III.

JUDICIARY POWER.

Article I. The tenure, that all commission officers
shall by law have in their offices, shall be expressed in
their respective commissions. All judicial officers, duly
appointed, commissioned, and sworn, shall hold their offices
during good behavior, excepting such concerning whom
there is different provision made in this constitution :
provided, nevertheless, the governor, with consent of the
council, may remove them upon the address of both houses
of the legislature.

n. Each branch of the legislature, as well as the gov-
ernor and council, shall have authority to require the opin-
ions of the justices of the supreme judicial court, upon
important questions of law, and upon solemn occasions.

in. In order that the people may not suffer from the
long continuance in place of any justice of the peace who
shall fail of discharging the important duties of his office
with ability or fidelity, all commissions of justices of the
peace shall expire and become void, in the term of seven
years from their respective dates ; and, upon the expira-
tion of any commission, the same may, if necessary, be
renewed, or another person appointed, as shall most con-
duce to the well-being of the commonwealth;

rV. The judges of probate of wills, and for granting
letters of administration, shall hold their courts at such
place or places, on fixed days, as the convenience of the
people shall require ; and the legislature shall, from time to
time, hereafter, appoint such times and places ; until which
appointments, the said courts shall be holden at the times
and places which the respective judges shall direct.



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COMMONWEALTH OF MASSACHUSETTS. 27

V. All causes of marriage, divorce, and alimony, and J^JSJI^
all appeals fix>m the judges of probate, shall be heard and qJJJ^Y^.
determined by the governor and council, until the legis- jWom nude
lature shall, by law, make other provision. i&ium.827.



CHAPTER IV.

DELEGATES TO CONGRESS.

[The dele^tes of this conunon wealth to the congress of 2S252?***
the United States, shall, some time in the month of June,
annually, be elected by the joint ballot of the senate and
house of representatives, assembled together in one room ;
to serve in congress for one year, to conmience on the first
Monday in November then next ensuing. They shall
have conmussions under the hand of the governor, and
the great seal of the conunonwealth ; but may be recalled
at any time within the year, and others chosen and com-
missioned, in the same manner, in their stead.] .



CHAPTER V.

THE UNTVERSITY AT CAMBRIDGE, AND ENCOURAGEMENT OF
LITERATURE, ETC.

Section I.

The University.

Article I. Whereas our wise and pious ancestors, so Harvard
early as the year one thousand six hundred and thirty-six, ^"•«••
laid the foundation of Harvard College, in which univer-
sity many persons of great eminence have, by the blessing
of GrOD, been initiated in those arts and sciences which
qualified them for public employments, both in church
and state ; and whereas the encoura^ment of arts and
sciences, and all good literature, tends to the honor of
God, the advantage of the Christian religion, and the great
benefit of this and the other United States of America,
— it is declared, that the President and Fellows of Powen,priTi.
Harvard College, in their corporate capacity, and {JSTpwlIidOTt
tJieir successors in that capacity, their officers and ser- SS^flmed.''
yants, shall have, hold, use, exercise, and enjoy, all the
powers, authorities, rights, liberties, privileges, inununi-
tiee, and franchises, wUch they now have, or are entitled



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28



CONSTITUTION OF THE



AUglfU,
gnuDU, •to.,
oonflnnod.



Who shall b«
oversMn.

8m Btatntei,
1861» 224.
1862, 27.
18M, 212.
1865, 173.
1880,65.



Power of altera,
tion reMrvod to
the legUlature.



to have, hold, use, exercise, and enjoy ; and the same are
hereby ratified and confirmed unto them, the said presi-
dent and fellows of Harvard College, and to their suc-
cessors, and to their officers and servants, respectively,
forever.

n. And whereas there have been at sundry times, by
divers persons, gifts, crants, devises of houses, lands, tene-
ments, goods, chattels, legacies, and conveyances, here-
tofore Do^e, either to Harvard College in Cambridge, in
New England, or to the president and fellows of Harvard
College, or to the said college by some other description,
under several charters, successively; it is declared, that
all the said gifts, grants, devises, legacies, and convey-
ances, are hereby forever confirmed unto the president
and fellows of Harvard College, and to their successors
in the capacity aforesaid, according to the true intent and
meaning of the donor or donors, grantor or grantors,
devisor or devisors.

HI. And whereas, by an act of the general court of
the colony of Massachusetts Bay, passed in the year one
thousand six hundred and forty-two, the governor and
deputy-governor, for the time being, and all the magis-
trates of that jurisdiction, were, witii the president, and
a number of the clergy in the said act described, con-
stituted the overseers of Harvard College ; and it being
necessary, in this new constitution of government to
ascertain who shall be deemed successors to the said gov-
ernor, deputy-governor, and magistrates ; it is declared,
that the governor, lieutenant-governor, council, and sen-
ate of this conunonwealth, are, and shall be deemed, their
successors, who, with the president of Harvard College,
for the time being, together with the ministers of the con-
gregational churches in the towns of Cambridge, Water-
town, Charlestown, Boston, Roxbury, and Dorchester,
mentioned in the said act, shall be, and hereby are, vested
with all the powers and authority belonging, or in any
way appertaining to the overseers of Harvard College ;
provided, that nothing herein shall be construed to pre-
vent the legislature of this commonwealth from making
such alterations in the government of the said university,
as shall be conducive to its advantage, and the interest
of the republic of letters, in as fiill a manner as might
have been done by the legislature of the late Province of
the Massachusetts Bay.



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COMMONWEALTH OF MASSACHUSETTS. 29

CHAPTER V.

Section H.

The Encouragement of Literature^ etc.

Wisdom and knowledge, as well as virtue, diflfused gen- Dntyof legiiiat-
erally among the body of the people, being necessary for JlSJtSln^"
the preservation of their rights and liberties ; and as these p^^^J^herpro-
depend on spreading the opportunities and advantages of ^^^^i^^
education in the various parts of the country, and among see amend-
the different orders of tiie people, it shall be the duty x^.
of legislatures and magistrates, in all future periods of Josf^*"**^^
this commonwealth, to cherish the interests of literature i<»m»m.»4,«7.
and the sciences, and all seminaries of them ; especially
the university at Cambridge, public schools and grammar
schools in the towns ; to encourage private societies and
public institutions, rewards and unmunities, for the pro-
motion of agriculture, arts, sciences, conunerce, trades,
manu&ctures, and a natural history of the country ; to
countenance and inculcate the principles of humanity and
general benevolence, public and private charity, industry
and frugality, honesty and punctuality in their dealings ;
sincerity, good humor, and all Social affections, and gen-
erous sentiments, among the people.



CHAPTER VI.

OATHS AND SUBSCRIPTIONS; INCOMPATIBILITY OF AND EXCLU-
SION FROM OFFICES; PECUNIARY QUALIFICATIONS; COMMIS-
SIONS; WRITS; CONFIRMATION OF LAWS; HABEAS CORPUS; -
THE ENACTING STYLE; CONTINUANCE OF OFFICERS; PROVI-
SION FOR A FUTURE REVISAL OF THE CONSTITUTION, ETC.

Article I. [Any person chosen governor, lieutenant- oaths, etc.
governor, councillor, senator, or representative, and accept-
ing the trust, shall, before he proceed to execute the duties
of his place or office, make and subscribe the following
declaration, viz. :

*« I, A. B., do declare, that I believe the Christian reli- j^'S^J^'^
gion, and have a &m persuasion of its truth ; and that I Art. vn.
am seised and possessed, in my own right, of the property
required by the constitution, as one qualification for the
office or place to which I am elected."



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