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established any distinct code or body of laws. . Francis Baylies, Esq. the recent meritorious and indefatigable historian of that colony, fully proves Hutchinson's mistake. He admits, however, that there is not a single printed copy of their laws now extant. It gives me pleasure to be able to say that this is also an error. In the Boston Athenæum there is a copy of the Plymouth colony laws, printed by Samuel Green, in 1685, by order of the general court of New-Plymouth, held at Plymouth June 2, 1685. It forms the latter part of a volume in which are bound the colony laws of Massachusetts printed by Benjamin Harris in 1692.
It must be acknowledged, however, that there was a great affinity and correspondence in the legislation of the two colonies, and that Massachusetts generally took the lead. For although the pilgrims had settled at Plymouth ten years before the arrival of the Massachusetts colonists, as they had no charter for government, they relied principally on their voluntary association and their church government for order, until twelve or sixteen years after their landing, whereas the Massachusetts colony brought with them a charter for government, and began to put forth their principles and pass ordinances the next year after their arrival, that is, in 1631. There was nearly the same correspondence in the legislation of Plymouth and Massachusetts before their union as there was in that of Massachusetts and NewHampshire after our separation.
It will be recollected that in 1641, the settlements in New Hampshire voluntarily came under the jurisdiction of Massachusetts; that this union was cordial and satisfactory, and that it continued to the year 1680. It was then broken by the authority of the king, and renewed subsequently for a short period after the deposition of Andros
until 1692, when a new executive was appointed by the crown for the province of New-Hampshire, and almost contemporaneously the colonies of Massachusetts and Plymouth, and the District of Maine were by the charter of William and Mary united into one royal province. The above facts are recited for the purpose of observing, that by our early and long continued union with the colony of Massachusetts, we were assimilated to her views, feelings, and principles. Most of our towns were settled from that prolific hive of the new world. We became flesh of her flesh and bone of her bone. Her laws were our laws, and after our separation, they continued so either by a legislative acknowledgment of their authority, or by reenactment, and even down to the present time, there are no two states in the Union, whose manners, customs, habits, principles, laws and institutions bear so strong a resemblance to each other, except perhaps Maine and Massachusetts, which till a recent period were united.
Under the colony laws, as we have already noticed, real estate was distributable in the same manner as personal, the creditor taking therein the whole estate of the debtor. But while they boldly made this inroad upon the law of real property, they left estates tail to be regulated by the rules of the English common law. Primogeniture was here preserved in the male line. The heir could not be divested by the tenant in tail, or by his creditor, until after the entailment had been barred by the fictitious process of a common recovery. This condition of entailed estates furnished a singular anomaly to their general system of laws. The state of Massachusetts in 1792, applied a remdy by authorizing the tenant to bar the entail by his own conveyance, and by giving the same effect to the levy of an execution by a creditor. If the law of England is now in this state the law
in relation to entailed estates, as I apprehend there is no doubt but it is, the subject is certainly deserving the early attention of the legislature. On examination I think it will be found that our statute for the levy of executions on real estate will not divest either the remainder man or the heir of the tenant.
Under the colony laws, also, the county court as a court of probate was authorized to ascertain the debts against insolvent estates, by means of commissioners, and to order payment in a ratable proportion; to make the widow an allowance,out of the personal estate, of such articles as were exempt from attachment ; to set off to her use one third part of the real estate; to order the sale of real estate for the payment of debts, and also in performance of the contract of the deceased; to appoint guardians to minors and persons non compos; to decree the payment of legacies and distributive shares, with the singular power of issuing executions to carry their decrees into effect.
By the statute of the 22 and 23d of Charles II. in 1870, it was made imperative on the courts of probate in England to take security of administrators, and the rules for the distribution of the personal estate of an intestate were more accurately defined. This law was soon followed in the provinces here, and applied to real estate as well as personal, with the favorite exception among the puritans of a double portion to the eldest son. This law now constitutes the grand basis of our law descent and distribution. Here also we find the confirmation of the common law right of the widow to one third, and under some circumstances, to one half of the personal estate as her distributive share.
At the time of the emigration of our ancestors, it was within the discretion of the ordinary to require bonds of an administrator to return an in
ventory and to account, because the administrator was his substitute in the particular case. But from executors who were the agents of the testator, and of course having his personal confidence, it was thought as improper to require security after his death, as it would be to require it of the testator when living. He had not required his executor to give security, why should the probate court ? The means here of compelling executors to perform their duties were not at hand as they were in England, and it became a most embarrassing subject. We now look back with surprise to see with how much difficulty this prejudice in favor of executors was at last overcome. Various enactments were made to prevent executors from defrauding creditors and legatees. As late as 1714, we find by the provincial laws that executors were to return an inventory, or to give bonds to pay the debts and legacies, with a proviso that no bonds should be given, where there were residuary legatees; but in that case the executor should account. The reason is very plain that without an account, the residuary legatees had no means of ascertaining their shares. Strange as it may appear, the legislature of this State did not make the very useful and what seems to us, the very obvious and simple enactment requiring the executors to give bond to return an inventory and to account, until the 3d of Febuary 1789. And to the honor of New Hampshire be it said, that on the same day by her statute for the distribution of intestate estates then passed, she adopted the christian principle of equality and rejected the mosaical institution of the double share to the eldest son, which up to that period had been the law of the people of this State. In June of the same year the Commonwealth of Massachusetts followed New Hampshire in making the same important change in their law of descent.
In 1718, a great advance was made in the probate law here, by authorizing the judge of probate for the province to license executors and administrators to make sale of so much of the real estate, as should be necessary to pay the debts and legacies. It was not until a century afterwards that Massachusetts 'gave to her judges of probate the same authority. This power was there
very incommodiously vested in their supreme court and court of common pleas.
During the colonial independence of Massachusetts, for such it was, while their government was wholly popular, the executive, legislative and judicial officers, being elected by the suffrages of the freemen, as they were during our union with her, the county courts were the courts of probate, with the right in the suitors to appeal to the court of assistants, and from them to the general court. In England the probate jurisdiction was ecclesias*tical in its character. This originated in the supposed connexion, inculcated by the clergy in an ignorant age, between the welfare of the soul and the pious disposition of the effects of the deceased. "The soul itself was considered as a proper subject of bequest, which the clergy had power to carry into effect.
into effect. Traces of this superstition are even now to be found in the formal part of many of our wills. It may seem somewhat strange, considering the theocratic principles of government which prevailed in the colonies of Maschusetts and Plymouth, connected with all they had ever known of the administration of probate law in England, that it should here be made by them an affair of civil jurisdiction. But such a distinction in the puritan clergy was irreconcilable with some of their leading ecclesiastical principles. They dreaded hierarchy. The independence and equality of the churches and of the clergy were among their fundamentals. They were satisfied with