USA > New Hampshire > The history of New-Hampshire. Comprehending the events of one complete century and seventy-five years from the discovery of the River Pascataqua to the year one thousand seven hundred and ninety, Vol 3 > Part 14
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* MS. letter of the Rev. William Morrison of Londonderry.
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by ftrangers, who alway's meet with a friendly and hofpitable reception.
The free indulgence of fpiritous liquors, has been, and is now, one of the greateft faults of ma- ny of the people of New-Hampfhire ; efpecially in the neighbourhood of the river Pafcataqua, and its branches, and wherever the bufinefs of getting lum- ber forms the principal employment of the people. If the reader is curious to form an eftimate of the quantity of diftilled fpirits confumed in the State, he may fatisfy himfelf, partly by infpecting the Table of importation ; partly by inquiring the num- ber of barrels of rum manufactured at the only dif- til houfe in the State ; partly by confidering the quantity tranfported by land from the different fea- ports of Maffachufetts, and partly by knowing 'the ' allowance' which is ufually given to labouring peo- ple in the neighbourhood of the river Pafcataqua ; and which is obftinately perfifted in, notwithftand- ing the remonftrances and endeavours of fome worthy characters to abolifh it.
In travelling up the country it affords pleafure to obferve the various articles of produce and manu- facture coming to market ; but in travelling down the country, it is equally difguftful to meet the fame teams returning, loaded with cafks of rum, along with fifh, falt, and other neceffary articles.
Before the Revolution it was cuftomary to give drams at funerals, and in fome towns to repeat the baneful dofe two or three times. During the war, a fcarcity of materials gave opportunity to put a check on this pernicious practice. It is now lefs common in moft places, and in fome it is wholly difufed.
Among hufbandmen, cyder is their common drink. Malt liquor is not fo frequent as its whole-
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fomenefs deferves ; and as the facility with which barley and hops may be raifed, feems to require. In fome of the new towns a liquor is made of fpruce twigs, boiled in maple fap, which is ex- tremely pleafant. But after all, there are no per- fons more robuft and healthy, than thofe, whofe on- ly or principal drink is the fimple element, with which nature has univerfally and bountifully fup- plied this happy land.
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CHAP. XVI.
Constitution, Lawe, Revenue, and Militia.
THE form of government, eftablifhed in 1784, is founded on thefe two grand principles, viz. 1. That ' the people have the fole and exclu- ' five right of governing themfelves, as a free, fov- 'ereign and independent State ; exercifing and en- ' joying every power, jurifdiction and right pertain- ' ing thereto, which is not, or may not hereafter be ' by them exprefsly delegated to the United States ' of America, in Congrefs affembled.' And 2. That ' the three effential powers of government, the le- ' giflative, executive and judicial ought to be kept as ' feparate from, and independent of each other, as ' the nature of a free government will admit ; or as 'is confiftent with that chain of connexion which ' binds the whole fabric.'
The rights of the people are particularly declared in thirty-eight articles prefixed to the form of gov- ernment. The objects of this declaration are per- fonal freedom, the fecurity of property, and the peace and order of human fociety.
By this conftitution, the legislative power is vefted in a GENERAL COURT, confifting of a Senate and houfe of Reprefentatives, each of which has a nega- tive upon the other. The SENATE confifts of twelve perfons chofen by the feveral counties in the fol- lowing proportions ; five for Rockingham ; two for Strafford ; two for Hillfborough ; two for Chefhire ; and one for Grafton. But the General Court may divide the State into different diftricts, and affign the number of Senators, in proportion to the public taxes, paid by cach diftrict. The Senate, therefore,
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may be confidered as reprefenting the property of the State.
The qualifications of a Senator are thefe. He muft be thirty years of age ; he muft have been refident in the State for feven years ; and at the time of his election, muft be an inhabitant of the liftrict for which he is chofen ; he muft poffefs in his own right, a freehold of two hundred pounds value, within the State, and he muft be of the pro- teftant religion.
The number of the houfe of REPRESENTATIVES is not limited ; but the principles on which it is pro- feffedly regulated, are population and equality. Every town containing 150 rateable poles of twenty-one years of age, may elect one reprefentative. Every town containing 450 may choofe two ; the mean increafing number for every representative being 300. This proportion is faid to be 'as equal as circumftances will admit.' Towns which have lefs than 150 polls, are generally claffed for the choice of a reprefentative.
The qualifications of a reprefentative are two years' habitancy ; an eftate of £100, one half of which is a frechold in the town he reprefents ; actual refidence within the fame, and a profeffion of the proteftant religion.
Money bills originate in the houfe of Reprefen- tatives ; but may be amended by the Senate. Im- peachments are made by the houfe, and tried by the Senate. The Journals of both houfes are print- ed ; and upon the motion of any one member, the yeas and nays on any queftion are taken and enter- ed on the journals.
The executive power is vefted in a PRESIDENT and COUNCIL. The PRESIDENT is annually elected by the people in the fame town-meetings where the Senators and Reprefentatives are chofen ; but if
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there be not a majority in favour of one perfon, the election is made by the General Court. The Repre- fentatives nominate two out of the perfons who have the higheft number of votes, of which two, the Senate by ballot, elect one to be Prefident for the year.
The qualifications of the Prefident are thefe. He muft have been an inhabitant of the State for feven years next preceding his election ; he muft be thirty years of age ; he muft have an effate of £500 value, one half of which is a freehold within the State, and he muft profefs the proteftant religion.
The Prefident of the State is alfo Prefident of the Senate ; having an equal vote in legiflation with any other member, and a cafting vote in cafe of an equal divifion.
The COUNCIL confifts of five perfons, of whom two are chofen out of the Senate and three out of the Reprefentatives, by the joint ballot of both houfes. Their qualifications are the fame as thofo of Senators.
Reprefentatives to CONGRESS are chofen by the inhabitants in town meetings, and the votes of each town are returned to the Secretary's office and laid before the General Court. . Thofe who have a majority of the votes are declared duly elected ; but if there be a deficiency, the General Court make a lift of fuch perfons as have the higheft number of votes, equal to double the number wanting ; this lift is fent to the towns, and out of it they make the choice. The votes then are returned as before ; and the perfon or perfons who have the higheft number are elected. If there be an equality it is decided by the Secretary, who draws one of the two names.
In cafe of a vacancy, in the reprefentation of the State in Congrefs, the votes are taken in the fame manner, and returned to the Prefident and Council.
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By the conftitution of the United States, the num- ber of Reprefentatives to Congref's is three. But according to the late confus, and the determination of Congrefs that one Reprefentative thall be chofen for every 30,000 inhabitants, the State at the next election will be entitled to four.
The number of ELECTORS for the Prefident and Vice-Prefident of the United States is five ; who are chofen in the fame manner as the Reprefenta- tives to Congrefs. The two SENATORS in Congrefs are chofen by the General Court.
The Secretary, Treafurer and Commiffary Gen- eral of the State, are chofen by the General Court. County Treafurers and Recorders of deeds, by the people in town meetings ; the votes are returned to the Courts of Seffions, and the perfon who has the higheft number of votes is declared elected ; but in cafe of an cquality, the Juftices prefent determine the choice. Clerks of courts are appointed by the Juftices, and no clerk can be of council to the par- tics.
The oath of fidelity to the State is as follows :
' I, A B, do truly and fincerely acknowledge, pro- ' fefs, teftify and declare, that the State of New- ' Hampfhire is and of right ought to be a free, fov- ' creign and independent State ; and do fwear that ' I will bear faith and true allegiance to the fame ; ' and that I will endeavour to defend it againft all ' treacherous confpiracies and hoftile attempts what- 'ever. And I do further teftify and declare that ' no man or body of men hath or can have a right ' to abfolve me from the obligation of this oath, ' declaration or affirmation ; and that I do make " this acknowledgement, profeffion, teftimony and ' declaration, honeftly and truly, according to the { common acceptation of the foregoing words, with-
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' out any equivocation, mental evafion, or fecret ref- ' ervation whatever. So help me GOD.'
.The enacting ftyle is . By the Senate and Houfe ' of Reprefentatives in General Court affembled.' All indictments and informations conclude 'againft ' the peace and dignity of the State.'
The feal of the State is, a field encompaffed with laurels ; on the field, a fhip on the flocks with American colours flying, and a pine tree fallen. In the back ground, a rifing fun and view of the ocean. The legend round the field is in thefe words : Si- gillum Reipublice Neo Hantonienfis, 1784.
All Judges, Sheriffs, Recorders of deeds, the At- torney and Commiffary-General, Secretary, Treafur -. er and continental military officers, the Prefident, Profeffors and Inftructors of colleges, and officers of the cuftoms are incapable of having a feat in the le- gillature.
All judicial officers hold their places during good behaviour ; but are removeable on the addrefs of both houfes of legiflature, by the Prefident, with confent of the Council.
No perfon is capable of holding more than two offices of profit at the fame time ; and no judge of the fuperior court can hold any other office than that of juftice of the peace, nor receive any penfion or falary from any other State or power whatever.
To preferve an adherence to the principles of the conftitution, and to make fuch alterations as experi- ence may render neceffary, provifion was made, that at the end of feven years, a convention fhould be called to revife the form of government. The year 1791 being the feventh year, a Convention was call- ed, and is now fubfifting by adjournment. Any al- teration which may be propofed by them muft be " laid before the towns and approved by two thirds
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' of the qualified voters prefent,' before it can be ef- tablithed. ١
The judicial department confifts of, 1ft. A Supe- rior Court, in which a Chief Juftice prefides, and three other Juftices affift: This court has cogni- fance of high crimes and mifdemeanors. It receives appeals from the inferior courts and courts of pro- bate, and determines caufes of marriage, divorce and alimony. It has two circuits in a year, through the feveral counties. 2d. An Inferior Court in each coun- ty, where civil actions of a certain value originate ; but no crimial caufes are tried. This court has four Juftices, and is holden four times in a year. 3d. A Court of General Seffions of the peace, holden in each county the fame week as the inferior courts. It con- fifts of the Juftices of the peace in the county. It has cognifance of finaller crimes and breaches of the peace ; and takes care of various occafional and pru- dential matters. 4th. A Court of Probate of wills in each county holden once in a month by one Judge affifted by a Regifter. This court has cognifance of all matters relative to the fettlement and defcent of eftates, teftate or inteftate ; the care of widows and orphans, idiots and perfons infane, and the manage- ment of confifcated eftates.
Civil actions of more than ten pounds value are brought firft before the Inferior Courts ; from the judgment of which, either party may appeal to the Superior Court ; where a new trial is had ; and if either party think himfelf aggrieved, he may with- in three years bring a writ of review, and have another trial at the fame court, which is final.
In all thefe courts, causes are determined by a ju- ry of twelve frecholders ; who are chofen in the following manner. The Selectmen of the feveral towns make a lift of the names of all perfons within their limics, who in their opinion are qualified, and
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have an eftate of fifty pounds value. One third of thefe names are put into one box, and two thirds into another. Out of the former, which is fuppof- ed to contain the names of the beft qualified, are drawn jurors for the fuperior, out of the other for the inferior court. This is done in public town meeting, by the town clerk, or one of the felect- men ; and a fummons having been previoufly fent, by the conftable, to the perfons thus chofen, their names are returned to the clerk of the court. Grand jurors are alfo chofen by the inhabitants affembled in town meeting. Before the year 1758, jurors were appointed by the fheriff according to the cuf- tom in England.
In criminal caufes, a grand jury confifting of any number, between twelve and twenty-four, find a bill of indictment ; which is afterward tried, by a petit jury of twelve, who muft be unanimous in » their verdict. In the trial of criminals, the courts proceed with great tendernefs. The fyftem of pe- nal laws is mild. Six offences only are capital ; arfon, burglary, murder, robbery, fodomy, and trea- fon. During the laft twenty-five years, there have been no more than two capital executions in the State, both of which were for murder.
A collection of the laws was made and printed in 1771, to which were prefixed the commiffions of Prefident Cutts, and of the then Governor ; and fev- eral acts of Parliament which related to the colonies were intermixed. The laws made after the revolu- tion were printed in 1780. To this edition was pre- fixed the temporary conftitution during the war ; and fubfequent acts were printed in a fimilar page till the year 1789, when a new edition was printed containing the perpetual laws, paffed fince the revo- lution. . To this edition is prefixed the prefent form of government, and bill of rights. Another and. more perfect edition is now in the prefs.
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It is difficult for any perfon, but one whofe pro- feffional bufinefs leads him to a practical acquaint- ance with the laws, to give a juft and comprehen- five view of the whole fyftem ; difperfed as it is in feveral books, and many loofe papers ; fome of which are confeffed to be imperfect. Such particu- lars as can be fuppofed of any importance, to per- fons not refiding in the State, fhall be briefly men- tioned. The inhabitants may eafily obtain more exact information.
Conveyance of real eftate is made by deeds figned, fealed and acknowledged before a juftice of the peace, and recorded in the office of county regifter. A conveyance is not valid againft any other perfon but the grantor, unlefs it be thus acknowledged and recorded. Powers of Attorney, by which a convey- ance is made, and affidavits in perpetuam rei me- moriam may alfo be recorded ; and a copy from the record is legal evidence.
Debts, not exceeding ten pounds value, may be recovered before a fingle juftice of the peace ; who may grant a rule to refer the fame to perfons mutu- ally chofen, and upon their award may enter judg- ment and iffue execution. If a debtor confefs before a juftice a debt not exceeding ten pounds, a record is made, and execution is iffued or ftayed by con- fent of the parties. Mutual debts and executions may be fet off againft each other, and the balance, if any, may be levied by the fheriff. Prifoners for debt are allowed a chamber in the jailor's houfc, and liberty of the yard. They may employ them- felves in the bufinefs of nail-making, the materials for which are provided by the county ; and the la- bourer is allowed one fourth part of the nails which he makes. If he make oath that he is not worth more than fix pounds and one fuit of clothes,
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he may be difcharged from confinement; but not from his obligation to the creditor.
Criminal prifoners may be fentenced by the courts to make nails ; which are to be taken in pay- ment of the fines, damages or cofts to which they are by law fubjected for their offences.
Eftates may be devifed by will, attefted and fub- fcribed in the prefence of three witneffes. Pofthu- mous children, and children for whom no legacy is devifed in the will of the parent, have the fame right in the eftate, as if the devifor had died intef- tate. Probate of wills muft be made within thirty days ; and executors muft give bond, for the faith- ful performance of duty. Divifion of eftates is or- dered by the judge of probate, on the application of the heirs ; and where an eftate lies in common with others, partition is made by the fame authority.
Eftates inteftate defcend in equal fhares, to children or their legal reprefentatives, and the dower to wid- ows. Perfonal eftate is liable for debts; and, if infufficient, real eftate is alfo chargeable ; provifion to be firft made for the widow out of the perfonal eftate, by the judge. Adminiftration is granted to the widow, or next of kin, or to both, at the difcre- tion of the judge, within thirty days after the de- ceafe ; and if the widow or next of kin neglect or refufe to adminifter, then letters of adminiftration may be granted, to one or more of the principal creditors, upon giving bond with fureties. The judge alfo appoints guardians for minors and per- fons non compos, and reprefentatives for abfent heirs.
The hufband during his life is heir to his wife as tenant by courtefy.
If creditors living within the State neglect to ex- hibit demands beyond two years, or living without the State, beyond three years, after a will be proved or adminiftration be taken, the debt is extinguifhed,.
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Executors and adminiftrators are exempt from perfonal arrefts, unlefs in cafe of wafte and embez zlement.
Eftates Infolvent are diftributed in average among creditors, by commiffioners appointed by the judge of probate. The reverfion of widow's dower is fub- jected to the payment of debts ; and may be fold as the reft of the eftate.
Proprietors of Lands holden in common, and un- divided, may agree upon methods of calling pro- prietary meetings ; but where no particular mode hath been agreed on, the owners of one fixteenth part of the whole intereft may obtain a warrant, from a juftice of the peace, to call a meeting ; which warrant muft be printed in the New-Hampshire ga- zette. The fhare of every proprietor is charged with the payment of any fums, voted at a legal meeting, and of all public taxes. The collectors have a right to fell the fhares for non payment ; re- ferving to the proprietor, liberty of redemption, within two months.
Trefpaffers on common lands are liable to the payment of heavy fines, if convicted on pofitive proof ; but when circumftantial evidence only ap- pears, they have the liberty of clearing themfelves by oath.
Partition of common lands may be ordered by the judge of probate in the county where the land lies.
Grants of land cannot be forfeited for non-per- formance of conditions, but by the verdict of a jury, after a folemn hearing in the fuperior court, at the profecution of the attorney-general. After a verdict of forfeiture, the judges have a power of chancery, in favor of individual grantees.
The dimenfions of the different kinds of Lumber are regulated by law. Surveyors were formerly
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chofen by the towns ; but are now appointed by the Prefident and Council, at thofe places where lumber is delivered. The penalty for delivering or receiving lumber without a furvey, is a forfeiture of one fourth part.
Marriages were formerly folemnifed, by virtue either of a publifhment, or of a licence from the Governor. The granting of thefe licences was ac- counted part of the royal prerogative ; but this practice ceafed at the revolution. The intention of the parties is now uniformly publifhed three times, within the towns where they refide. Minif- ters of the gofpel and juftices of the peace may per- form the marriage ceremony, within the limits of the county. Any other perfon, prefuming to do it, is fubjected to a fine of one hundred pounds ; fav- ing to the people called Quakers, their peculiar cuf- tom. A return of marriages is made to the town- clerks, and recorded.
On the Sabbath, all unneceffary travelling, loiter- ing and indecent behaviour are forbidden, under certain penalties. Tything men in the feveral towns are to fee this law executed.
Slavery is not prohibited by any exprefs law. Ne- groes were never very numerous in New-Hamp- fhire. Some of them purchafed their freedom, dur- ing the late war, by ferving three years in the ar- my. Others have been made free by the juftice and humanity of their mafters. In Maffachufetts, they are all accounted free, by the firft article in the de- claration of rights. ' All men are born free and ' equal.' In the bill of rights of New-Hampfhire, the firft article is expreffed in thefe words, ' All men ' are born equally free and independent ;' which, in the opinion of moft perfons, will bear the fame conftruction. But others have deduced from it this inference, that all who are born, Since the constitution
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was made, are free ; and that thofe who were in flavery before, remain fo ftill. For this reafon, in the late cenfus, the blacks, in New-Hampfhire, are diftinguifhed into free and flaves. It is not in my power to apologife for this inconfiftency. Howev- er, the condition of moft of thofe who are called flaves, is preferable to that of many who are free in the neighbouring State. They are better provided with neceffaries ; their labour is not more fevere than that of the white people in general ; and they are equally under the protection of the law .*
Slitting and rolling mills for iron, linfeed oil mills, and fail cloth manufactories, are exempted from taxes for ten years.
Flax-feed is put up in cafks of feven bufhels, or three bufhels and a half. Infpectors of flax-feed, and of pot and pearl-afhes, are appointed by the prefident and council, who are to examine the con- tents of each cafk, and brand it for exportation.
Every townfhip in New-Hampfhire is a diftinct corporation, having a power of choofing all town of- ficers, which are named in the laws, and of raifing money by taxes for the fupport of minifters, fchools, bridges, highways, the maintenance of the poor, and other public purpofes. Three or five Selectmen are annually chofen in each town, who are entrufted with its general concerns, and are commonly ftyled FATHERS of the town, a name expreffive of their pru- dential character, and of the confidence which is re- pofed in them by the people.
Before the affumption of the State debts by the Congrefs, the public revenue of the State arofe from three fources ; an impoft, an excife, and a tax upon
* By a law made in the 4th of George I. and still in force, it is enacted ; ' that if 'any man smite out the eye or tooth of his man servant or maid servant, or otherwise f maim and disfigure them, he shall let him or her go free from his service ; and shall al- ' low such further recompense as the court of quarter sessions shall adjudge. Also, thus "if any person kill his Indian or negro servant, he shall be punished with death,'
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polls and eftates. Since the affumption, the two for- mer are levied by the general government through- out the union. The fum allowed to be received in the certificates of New-Hampfhire, is three hundred thoufand dollars. If this whole fum be fubfcribed, the domeftic debt of the State will be reduced to a trifle ; but whether New-Hampfhire be a debtor or a creditor State, cannot be known till a final adjuft- ment of the public accounts be made, by the com- miffioners appointed by Congrefs.
Taxation by polls and eftates, is conducted in the following manner. Once in feveral years, an act is paffed by the General Court, fpecifying the pro- portion which each town fhall pay to one thou- fand pounds. When any fum is voted for a State tax, each town immediately knows its proportion, and a warrant is iffued from the treafurer to the fe- lectmen to levy it. They then proceed to tax eve- ry inhabitant, by an invoice of rateable eftate, which is taken annually in the month of April.
In this invoice, every male poll between eighteen and feventy years of age, is eftimated at ten fhil- lings. The feveral kinds of rateable eftate, are efti- mated as follows, viz.
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