When Massachusetts was first chartered, a council of inhabitants was formed,
the 28 members of which were to be chosen annually by the people of the colony.
This bit of democratic representation was unique among the many colonies, and
it was a right the people took seriously and enjoyed, given the level of
patronage and corruption evident when such councilors were appointed. However,
the level of independence the council eventually felt at liberty to exercise
was not to the liking of the colonial power, especially as the people in
America began to exert muscle on trade and political issue. The Massachusetts
Government Act was passed, on May 20, 1774, to reign in this independence.
The Act abolished the popularly elected council members, and replaced them
with a 12 to 36 member council appointed by the King. The Act also forbade any
meeting of the people of a town, unless at an annual meeting held in either
March or May, unless specifically authorized by the governor.
The Act also required constables in each town to make lists of all persons
21 to 70 years of age for the purpose of making jury lists, and that if the
constable needed assistance in making this list, that tax records could be
consulted. The lists were then sent to the county sheriff to make a jury pool.
Additional lists of those who had served would be made, and no one would be
required to serve more than once each three years. The Act further details
special juries, when they can be called, and who the cost of the trial would
fall upon.
The other Intolerable Acts are the Administration of Justice Act, the Boston Port Act, the Quartering Act, and the Quebec Act.
The source for this text is the Avalon
Project. The text has been modified slightly to expand abbreviations,
modernize spelling, and enhance readability. Footnotes explain arcane language
or uncommon terms.
An act for the better regulating the government of the province of the
Massachusetts Bay, in New England.
WHEREAS by letters patent [1] under the great
seal of England, made in the third year of the reign of their late majesties
King William and Queen Mary, [2] for uniting,
erecting, and incorporating, the several colonies, territories, and tracts of
land therein mentioned, into one real province, by the name of Their Majesties
Province of the Massachusetts Bay, in New England; whereby it was, amongst
other things, ordained and established, That the governor of the said province
should, from thenceforth, be appointed and commissioned by their Majesties,
their heirs and successors: It was, however, granted and ordained, That, from
the expiration of the term for and during which the 28 persons named in the
said letters patent were appointed to be the first counselors or assistants to
the governor of the said province for the time being, the aforesaid number of
28 counselors or assistants should yearly, once in every year, for ever
thereafter, be, by the general court or assembly, newly chosen: And whereas the
said method of electing such counselors or assistants, to be vested with the
several powers, authorities, and privileges, therein mentioned, although
conformable to the practice theretofore used in such of the colonies thereby
united, in which the appointment of the respective governors had been vested in
the general courts or assemblies of the said colonies, hath, by repeated
experience, been found to be extremely ill adapted to the plan of government
established in the province of the Massachusetts Bay, by the said letters
patent herein-before mentioned, and hath been so far from contributing to the
attainment of the good ends and purposes thereby intended, and to the promoting
of the internal welfare, peace, and good government of the said province, or to
the maintenance of the just subordination to, and conformity with, the laws of
Great Britain, that the manner of exercising the powers, authorities, and
privileges aforesaid, by the persons so annually elected, hath, for some time
past, been such as had the most manifest tendency to obstruct, and, in great
measure, defeat, the execution of the laws; to weaken and, in great measure,
defeat, the execution of the laws; to weaken the attachment of his Majesty’s
well-disposed subjects in the said province to his Majesty’s government, and to
encourage the ill-disposed among them to proceed even to acts of direct
resistance to, and defiance of, his Majesty’s authority; And it hath
accordingly happened that an open resistance to the execution of the laws hath
actually taken place in the town of Boston, and the neighborhood thereof,
within the said province: And whereas it is, under these circumstances, become
absolutely necessary, in order to the preservation of the peace and good order
of the said province, the protection of his Majesty’s well-disposed subjects
therein resident, the continuance of the mutual benefits arising from the
commerce and correspondence between this kingdom and the said province, and the
maintaining of the just dependence of the said province upon the crown and
parliament of Great Britain, that the said method of annually electing the
counselors or assistants of the said province should no longer be suffered to
continue but that the appointment of the said counselors or assistants should
henceforth be put upon the like footing as is established in such other of his
Majesty’s colonies or plantations in America, the governors whereof are
appointed by his Majesty’s commission, under the great seal of Great Britain:
Be it therefore enacted by the King’s most excellent Majesty, by and with the
advice and consent of the lords spiritual and temporal, and commons, in this
present parliament assembled, and by the authority of the same, That from and
after August 1, 1774, so much of the charter, granted by their majesties King
William and Queen Mary to the inhabitants of the said province of the
Massachusetts Bay, in New England, and all and every clause, matter, and thing,
therein contained, which relates to the time and manner of electing the
assistants or counselors for the said province, be revoked, and is hereby
revoked and made void and of none effect; and that the offices of all
counselors and assistants, elected and appointed in pursuance thereof, shall
from thenceforth cease and determine: And that, from and after August 1, 1774,
the council, or court of assistants of the said province for the time being,
shall be composed of such of the inhabitants or proprietors of lands within the
same as shall be thereunto nominated and appointed by his Majesty, his heirs
and successors, from time to time, by warrant under his or their signet or sign
manual, [3] and with the advice of the privy
council, agreeable to the practice now used in respect to the appointment of
counselors in such of his Majesty’s other colonies in America, the governors
whereof are appointed by commission under the great seal of Great Britain:
provided, that the number of the said assistants or counselors shall not, at
any one time, exceed 36, nor be less than 12.
And it is hereby further enacted, That the said assistants or counselors, so
to be appointed as aforesaid, shall hold their offices respectively, for and
during the pleasure of his Majesty, his heirs or successors; and shall have and
enjoy all the powers, privileges, and immunities, at present held, exercised,
and enjoyed, by the assistants or counselors of the said province, constituted
and elected, from time to time, under the said charter, (except as herein-after
excepted); and shall also, upon their admission into the said council, and
before they enter upon the execution of their offices respectively, take the
oaths, and make, repeat, and subscribe, the declarations required, as well by
the said charter as by any law or laws of the said province now in force, to be
taken by the assistants or counselors who have been so elected and constituted
as aforesaid.
And be it further enacted by the authority aforesaid, That from and after
July 1, 1774, it shall and may be lawful for his Majesty’s governor for the
time being of the said province, or, in his absence, for the
lieutenant-governor, to nominate and appoint, under the seal of the province,
from time to time, and also to remove, without the consent of the council, all
judges of the inferior courts of common pleas, commissioners of Oyer and
Terminer, [4] the attorney general, provosts,
marshals, justices of the peace, and other officers to the council or courts of
justice belonging; and that all judges of the inferior courts of common pleas,
commissioners of Oyer and Terminer, the attorney general, provosts, marshals,
justices, and other officers so appointed by the governor, or, in his absence,
by the lieutenant-governor alone, shall and may have, hold, and exercise, their
said offices, powers, and authorities, as fully and completely, to all intents
and purposes, as any judges of the inferior courts of common pleas,
commissioners of Oyer and Terminer, attorney general, provosts, marshals, or
other officers, have or might have done heretofore under the said letters
patent, in the third year of the reign of their late majesties King William and
Queen Mary; any law, statute, or usage, to the contrary notwithstanding.
Provided always, and be it enacted, That nothing herein contained shall
extend, or be construed to extend, to annul or make void the commission granted
before July 1, 1774, to any judges of the inferior courts of common pleas,
commissioners of Oyer and Terminer, the attorney general, provosts, marshals,
justices of the peace, or other officers; but that they may hold and exercise
the same, as if this act had never been made, until the same shall be
determined by death, removal by the governor, or other avoidance, as the case
may happen.
And be it further enacted by the authority aforesaid, That, from and after
July 1, 1774, it shall and may be lawful for his Majesty’s governor, or, in his
absence, for the lieutenant-governor for the time being of the said province,
from time to time, to nominate and appoint the sheriffs without the consent of
the council, and to remove such sheriffs with such consent, and not
otherwise.
And be it further enacted by the authority aforesaid, That, upon every
vacancy of the officers of chief justice and judges of the superior court of
the said province, from and after July 1, 1774, the governor for the time
being, or, in his absence, the lieutenant-governor, without the consent of the
council, shall have full power and authority to nominate and appoint the
persons to succeed to the said offices; who shall hold their commissions during
the pleasure of his Majesty, his heirs and successors; and that neither the
chief justice or judges appointed before July 1, 1774, nor those who shall
hereafter be appointed pursuant to this act, shall be removed, unless by the
order of his Majesty, his heirs or successors, under his or their sign
manual.
And whereas, by several acts of the general court, which have been from time
to time enacted and passed within the said province, the freeholders and
inhabitants of the several townships, districts, and precincts, qualified, as
is therein expressed, are authorized to assemble together, annually, or
occasionally, upon notice given, in such manner as the said acts direct, for the
choice of select men, constables, and other officers, and for the making and
agreeing upon such necessary rules, orders, and bylaws, for the directing,
managing, and ordering, the prudential affairs of such townships, districts,
and precincts, and for other purposes: and whereas a great abuse has been made
of the power of calling such meetings, and the inhabitants have, contrary to
the design of their institution, been misled to treat upon matters of the most
general concern, and to pass many dangerous and unwarrantable resolves: for
remedy whereof, be it enacted, That from and after August 1, 1774, no meeting
shall be called by the select men, or at the request of any number of
freeholders of any township, district, or precinct, without the leave of the
governor, or, in his absence, of the lieutenant-governor, in writing,
expressing the special business of the said meeting, first had and obtained,
except the annual meeting in the months of March or May, for the choice of
select men, constables, and other officers, or except for the choice of persons
to fill up the offices aforesaid, on the death or removal of any of the persons
first elected to such offices, and also, except any meeting for the election of
a representative or representatives in the general court; and that no other
matter shall be treated of at such meetings, except the election of their
aforesaid officers or representatives, nor at any other meeting, except the
business expressed in the leave given by the governor, or, in his absence, by
the lieutenant-governor.
Provided always, and be it further enacted by the authority aforesaid, That
wherever the sheriff of any country shall happen to be a party, or interested
or related to any party of person interested in any prosecution or suit
depending in any of the said courts; that then in such case, the writ of Venire
Facias, of other process or warrant for the summoning and return of a jury, for
the trial of such prosecution or suit, shall be directed to, and executed by,
the coroner of such county; [7] and in case such
coroner shall be also a party, or interested in, or related to, the Venire
Facias, or other process or warrant, for the summoning and return of a jury for
the trial of such prosecution or suit shall be directed to, and executed by, a
proper and indifferent person, to be appointed for that purpose by the court
wherein such prosecution or suit shall be depending.
And that all sheriffs may be the better informed of persons qualified to
serve on juries at the superior courts of judicature, courts of assize, general
jail delivery, general sessions of the peace, and inferior court of common
pleas, within the said province, be it further enacted by the authority
aforesaid, That the constables of the respective towns, within the several
counties of the said province, shall, at the general sessions of the peace to
be held for each county, next after the month of September in every year, upon
the first day of the said sessions, return and deliver to the justices of the
peace, in open court, a true life, in writing, of the names and places of abode
of all persons within the respective towns for which they serve, or the
districts thereof, qualified to serve upon juries, with their titles and
additions, between the age of 21 years and the age of 70 years; which said
justices or any two of them, at the said sessions in the respective counties,
shall cause to be delivered a duplicate of the aforesaid lists, by the clerk of
the peace of every country, to the sheriffs, or their deputies, within ten days
after such session; and cause each of the said lists to be fairly entered into
a book by the clerk of the peace, to be by him provided, and kept for that
purpose amongst the records of the said court; and no sheriff shall impanel or
return any person or persons to serve upon any grand jury, petit jury,
whatsoever, in any of the said courts that shall not be named or mentioned in
such list: and, to prevent a failure of justice, through the neglect of
constables to make such returns of persons qualified to serve on juries, as in
and by this act is directed, the clerks of the peace of the said several
counties are hereby required and commanded, twenty days at least next before
the month of September, yearly, and every year, to issue forth precepts or
warrants, under their respective hands and seals, to the respective constables
of the several towns within the said respective counties, requiring them, and
every of them, to make such return of persons qualified to serve upon juries as
hereby respectively directed; and every constable failing at any time to make
and deliver such return to the justices in open court, as aforesaid, shall
forfeit and incur the penalty of five pounds sterling to his Majesty, and his
successors: to be recovered by bill, plaint, [8] or
information, to be prosecuted in any of the courts aforesaid; and, in order
that the constables may be the better enabled to make complete lists of all
persons qualified to serve on juries, the constables of the several towns shall
have free liberty, at all seasonable times, upon request by them made to any
officer or officers, who shall have in his or their custody any book or account
of rates or taxes on the freeholder or inhabitants within such respective
towns, to inspect the same, and take from thence the names of such persons
qualified to serve on juries, dwelling within the respective, towns for which
such lists are to be given in and returned pursuant to this act; and shall, in
the month of September, yearly, and every year, upon two or more Sundays, fix
upon the door of the church, chapel, and every other public place of religious
worship within their respective precincts, a true and exact list of all such
persons intended to be returned to the said general sessions of the peace, as
qualified to serve on juries, pursuant to the directions of this act; and leave
at the same time a duplicate of such list with the town clerk of the said
place, perused by the freeholder and inhabitants thereof, to the end that
notice may be given of persons duly qualified who are omitted, or of persons
inserted by mistake who ought to be omitted out of such lists; and it shall and
may be lawful to and for the justices, at the general sessions of the peace to
which the said lists shall be so returned, upon due proof made before them of
any person or persons duly qualified to serve on juries being omitted in such
lists, or of any person or persons being inserted therein who ought to have
been omitted, to order his or their name or names to be inserted or struck out,
as the case may require: and in case any constable shall willfully omit, out of
such list, any person or persons, whose name or names ought to be inserted, or
shall willfully insert any person or persons who ought to be omitted, every
constable so offending, shall, for every person so omitted or inserted in such
list, contrary to the true intent and meaning of this act, be fined by the said
justices, in the said general sessions of the peace, in the sum of forty
shillings sterling.
Provided always, and be it enacted by the authority aforesaid, That in case
default shall at any time hereafter be made, by any constable or constables, to
return lists of persons qualified to serve on juries within any of the said
towns to the said court of general sessions of the peace; then, and in such
case, it shall be lawful for the sheriff of the county, in which such default
shall be made, to summon and return to the several courts aforesaid, or any of
them, such and so many persons dwelling in such towns, or the districts
thereof, qualified to serve on juries, as he shall think fit to serve on juries
at such respective courts; any thing herein contained to the contrary thereof
in any-wise notwithstanding.
And be it further enacted by the authority aforesaid, That every summons of
any person, to serve upon any of the juries at the said courts, or any of them,
shall be made by the sheriff, or other person, ten days at the least before the
holding of every such court; and in case any jurors, so to be summoned, be
absent from the usual place of his habitation at the time of such summons,
notice of such summons shall be given, by leaving a note, in writing, under the
hand of such sheriff, or person, containing the contents thereof, at the
dwelling-house of such juror, with some person inhabiting in the same.
Provided always, and be it further enacted by the authority aforesaid, That
in case a sufficient number of persons qualified to serve on juries shall not
appear at the said courts, or any of them, to perform the service of grand or
petit jurors; that then, and in such case, it shall be lawful for the said
court to issue a writ or precept to the sheriff, requiring him to summon a
sufficient number of other persons qualified to serve on juries, immediately to
appear at such court, to fill up and complete the number of jurors to serve at
such court; and such persons are hereby required to appear and serve as jurors
at the said courts accordingly.
And be it further enacted by the authority aforesaid, That no person who
shall serve as a juror, at any of the said courts, shall be liable to serve
again as a juror at the same court, or any other of the courts aforesaid, for
the space of three years then next following; except upon special juries.
And, in order that sheriffs may be informed of the persons who have served
as jurors, it is hereby further enacted by the authority, aforesaid, that every
sheriff shall prepare and keep a book, or register, wherein. the names of all
such persons who have served as jurors, with their additions and places of
abode, and the times when, and the courts in which they served, shall be
alphabetically entered and registered; which books or registers shall, from
time to time, be delivered over to the succeeding sheriff of the said county;
within ten days after he shall enter upon his office; and every juror, who
shall attend and serve at any of the courts aforesaid, may at the expiration of
the time of holding every such court, upon, application to the sheriff, or his
deputy, have a certificate immediately, gratis, [9]
from the sheriff, or his deputy, testifying such his attendance and service;
which said certificate the said sheriff, or his deputy, is required to give to
every such juror.
And be it further enacted by the authority aforesaid, That if, by reason of
challenges, or otherwise, there shall not be a sufficient number of jurors for
the trial of any prosecution for any misdemeanor, or any action depending in
any of the said courts; then, and in such case, the jury shall be filled up de
Talibus Circumstantibus, [10] to be returned by the
sheriff, unless he be a party, or interested or related to any party or person
interested in such prosecution or action; and, in any of which cases, to be
returned by the coroner, unless he be a party, or interested or related to any
party or person interested in such prosecution or action; and, in any of these
cases, to be returned by a proper and indifferent person, to be appointed by
the court for that purpose.
And be it further enacted by the authority aforesaid, That in case any
person summoned to serve upon the grand or petit jury, at any of the courts
aforesaid, or upon the jury in any prosecution, action, or suit, depending in
any of the said courts, shall not appear and serve at the said courts,
according to the said summons, (not having any reasonable excuse to be allowed
by the judges or justices at such court), he shall be fined by the judges or
justices of such court in any sum not exceeding the sum of ten pounds, nor less
than twenty shillings sterling.
And be it further enacted by the authority aforesaid, That every sheriff, or
other officer, to whom the Venire Facias, or other process or warrant, for the
trial of causes, or summoning of juries, shall be directed, shall, upon his
return of every such writ, or other process or warrant, (unless in cases where
a special jury shall be struck by order or rule of court, pursuant to this
act), annex a panel to the said writ, or process, or warrant, containing the
Christian and surnames, additions, and places of abode, of a competent number
of jurors, named in such lists, which number of jurors shall not be less than
24, nor more than 48, without direction of the judges or justices of such court
or session, or one of them, who are hereby respectively empowered and required,
if he or they see cause, by order, under his or their respective hand or hands,
to direct a greater number; and then such number as shall be so directed shall
be the number to be returned to serve on such jury.
And be it further enacted by the authority aforesaid, That for the trials of
all actions or suits depending in any of the said courts, the name of each and
every person who shall be summoned and returned as aforesaid, with his
addition, and the place of his abode, shall be written in several and distinct
pieces of parchment, or paper, being all as near as may be of equal size and
bigness, and shall be delivered unto the officer to be appointed by the court
for that purpose, by the sheriff, under sheriff, or some agent of his; and
shall, by direction and care of such officer, be rolled up all as near as may
be, in the same manner, and put together in a box or glass to be provided for
that purpose; and when any cause shall be brought on to be tried, some
indifferent person, by direction of the court, may and shall, in open court,
draw out 12 of the said parchments or paper, one after another; and if any of
the persons, whose names shall be so drawn, shall not appear, or shall be
challenged, and such challenge allowed, then such person shall proceed to draw
other parchments or papers from the said box, till 12 indifferent persons shall
be drawn; which 12 indifferent persons being sworn shall be the jury to try the
said cause: and the names of the persons so drawn and sworn shall be kept apart
by themselves in some other box or glass, to be kept, for that purpose, till
such jury shall have given in their verdict and the same is recorded, or until
such jury shall, by consent of the parties, or leave of the court, be
discharged; and then the same names shall be rolled up again, and returned to
the former box or glass, there to be kept, with the other names remaining at
that time undrawn, and so toties quoties, [11] as
long as any cause remains then to be tried.
And be it further enacted by the authority aforesaid, That it shall and may
be lawful to and for the superior court of assize, and court of common pleas
upon motion made on behalf of his Majesty, his heirs or successors, or on the
motion of any prosecutor or defendant, in any indictment or information for any
misdemeanor depending, or to be brought or prosecuted in the said court, or on
the motion of any plaintiff or plaintiffs, defendant or defendants, in any
action, cause, or suit whatsoever, depending, or to be brought and carried on
in the said court, and the said court, is hereby authorized and required, upon
motion as aforesaid, in any of the cases before mentioned, to order and appoint
a jury to be struck for the trial of any issue joined in any of the said cases,
and triable by a jury of 12 men, by such officer of the said court as the court
shall appoint; and for that purpose the sheriff, or his deputy, shall attend
such officer with the duplicate of the lists of persons qualified to serve on
juries; and such officer shall thereupon take down, in writing, from the said
duplicate, the names of 48 persons qualified to serve on juries, with their
additions, and places of abode, a copy whereof shall forthwith be delivered to
the prosecutors or plaintiffs, their attorneys or agents, and another copy
thereof to the defendants, their attorneys or agents, in such prosecutions and
causes; and the said officer of the court aforesaid shall, at a time to be
fixed by him for that purpose, strike out the names of 12 of the said persons,
at the nomination of the prosecutors or plaintiffs, their attorneys or agents,
and also the names of 12 others of the said persons, at the nomination of the
said defendants in such prosecutions and suits; and the 24 remaining persons
shall be struck and summoned, and returned to the said court as jurors, for the
trial of such issues.
Provided always, That in case the prosecutors or plaintiffs, or defendants,
their attorneys or agents, shall neglect or refuse to attend the officer at the
time fixed for striking the names of 24 persons as aforesaid, or nominate the
persons to struck out; then, and in such case, the said officer shall, and he
is hereby required to strike out the names of such number of the said persons
as such prosecutors or plaintiffs, or defendants, might have nominated to be
struck out.
And be it further enacted, That the person or party who shall apply for such
special jury as aforesaid, shall not only bear and pay the fees for striking
such jury, but shall also pay and discharge all the expenses occasioned by the
trial of the cause by such special jury, and shall not have any further or
other allowance for the same, upon taxation of costs, than such person or party
would be entitled unto in case the cause had been tried by a common jury,
unless the judge, before whom the cause is tried, shall, immediately after the
trial, certify, in open court, under his hand, upon the back of the record,
that the same was a cause proper to be tried by a special jury.
And be it further enacted by the authority aforesaid, That, in all actions
brought in any of the said courts, where it shall appear to the court in which
such actions are depending, that it will be proper and necessary that the
jurors who are to try the issues in any such actions, should have the view of
the messuages, [12] lands, or place in question, in
order to their better understanding the evidence that will be given upon the
trial of such issues; in every such case the respective courts in which such
actions shall be depending may order the jury to the place in question, who
then and there shall have the matters in question shewn them by two persons to
be appointed by the court; and the special costs of all such views as allowed
by the court, shall, before the trial, be paid by the party who moved for the
view, (the adverse party not consenting thereto); and shall, at the taxation of
the bill of costs, have the same allowed him, upon his recovering judgment in
such trial; and upon all views with the consent of parties, ordered by the
court, the costs thereof, as allowed by the court, shall, before trial, be
equally paid by the said parties; and in the taxation of the bill of costs, the
party recovering judgment shall have the sum by him paid allowed to him; any
law, usage, or custom, to the contrary notwithstanding.
And be it further enacted by the authority aforesaid, That if any action
shall be brought against any sheriff, for what he shall do in execution, or by
virtue of this act, he may plead the general issue, and give the special matter
in evidence; and if a verdict shall be found for him, he shall recover treble
costs. [13]
2. The third year of the reign of William and Mary was
1692.
3. The “sign manual” is the signature of the monach.
4. A commission of oyer and terminer is akin to a grand
jury in the American legal process.
5. A court of assize is a criminal court.
6. A writ of venire facias is one which compels jurors to
appear before a court for jury duty.
7. In this context, the coroner is an official whose duty
was to protect the interest of the Crown in criminal proceedings.
8. A paint, or plaint note, is sent to a defendant to
inform them of legal action against them. It is similar to a modern
summons.
9. By “gratis” the act means that the certificate must be
provided for free, that no charge is permitted.
10. Literally, “de talibus circumstantibus” means to take
whomever happens to be standing around. In this context, if a jury pool is not
large enough, anyone nearby could be legally required to drop what they were
doing and sit in the pool.
11. Literally, “as often as the thing shall happen.”
12. A messuage is a home and its immediate
outbuildings.
13. Treble means triple.