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Commentaries on the Constitution of the United States (1833)
by Joseph L. Story
§ 82. IN August, 1622, the council of Plymouth (which seems to have been extremely profuse and inconsiderate in its grants1) granted to Sir Ferdinando Gorges and Capt. John Mason all the land lying between the rivers Merrimack and Sagadahock, extending back to the great lakes and rivers of Canada; which was called Laconia.2 In April, 1639, Sir Ferdinando obtained from the crown a confirmatory grant of all the land from Piscataqua to Sagadahock and the Kennebeck river, and from the coast into the northern interior one hundred and twenty miles; and it was styled “The Province of Maine.”3 Of this province he was made Lord Palatine, with all the powers, jurisdiction, and royalties belonging to the bishop of the county Palatine of Durham; and the lands were to be holden, as of the manor of East Greenwich. The charter contains a reservation of faith and allegiance to the crown, as having the supreme dominion; and the will and pleasure of the crown is signified, that the religion of the Church of England be professed, and its ecclesiastical government established in the province. It also authorizes the Palatine, with the assent of the greater part of the free-holders of the province, to make laws not repugnant or contrary, but as near as conveniently may be to the laws of England, for the public good of the province; and to erect courts of judicature for the determination of all civil criminal causes with an appeal to the Palatine. But all the powers of government, so granted, were to be subordinate to the “power and regement” of the lords commissioners for foreign plantations for the time being. The Palatine also had authority to make ordinances for the government of the province, under certain restrictions; and a grant of full admiralty powers, subject to that of the Lord High Admiral of England. And the inhabitants, being subjects of the crown, were to enjoy all the rights and privileges of natural born subjects in England.4
§ 83. Under these ample provisions Gorges soon established a civil government in the province, and made ordinances. The government, such as it was, was solely confided to the executive, without any powers of legislation. The province languished in imbecility under his care; and began to acquire vigour only when he ceased to act as proprietary and lawgiver.5 Massachusetts soon afterwards set up an exclusive right and jurisdiction over the territory, as within its chartered limits; and was able to enforce obedience and submission to its power.6 It continued under the jurisdiction of Massachusetts until 1665, when the commissioners of the crown separated it for a short period; but the authority of Massachusetts was soon afterwards reestablished.7 The controversy between Massachusetts and the Palatine, as to jurisdiction over the province, was brought before the privy council at the same time with that of Mason respecting New Hampshire, and the claim of Massachusetts was adjudged void.8 Before a final adjudication was had, Massachusetts had the prudence and sagacity, in 1677, to purchase the title of Gorges for a trifling sum; and thus to the great disappointment of the crown, (then in treaty for the same object,) succeeded to it, and held it, and governed it as a provincial dependency, until the fall of its own charter; and it afterwards, as we have seen, was incorporated with Massachusetts in the provincial charter of 1691.9
1. 1 Hutch. Hist. 6, 104; Robert. America, B. 10; I Doug. Summ. 366, 380, 386.
2. 1 Hutch. Hist. 316; 1 Holmes Annals, 180; 1 Belk. N. Hamp. ch. 1, p. 14.
3. 1 Holmes’s Annals, 254; 1 Chalm. Annals, 472, 473, 471; 1 Doug. Summ. 386, &c.
4. 1 Haz. Coll. 442 to 445.
5. 1 Chalm. Annals, 474, 479; 1 Holmes’s Annals, 254, 258, 296.
6. 1 Chalm. Annals, 480, 481, 483; 1 Hutch. History, 176, 177, 256; 1 Holmes’s Annals, 296; 2 Winthrop’s Journ. 38, 42.
7. 1 Chalm. Annals, 483, 484; 1 Holmes’s Annals, 343, 348; 3 Hutch. Coll. 422.
8. 1 Chalmers’s Annals, 485, 504, 505; 1 Holmes’s Annals, 388.
9. 1 Chalm. Ann. 486, 487; I Holmes’s Ann. 388; 1 Hutch. Hist. 326.