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Source: Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund 1998).
39 Acts and Orders of 1647
Spelling is as it appears in Bartlett, Vol. i, 1636 to 1663, 38–65. The text is quite lengthy and herein is reproduced only in part. Sections excluded deal with more standard or mundane aspects of law, such as fraud, forgery, trespassing, larceny, assault, robbery, and burglary.
The Acts and Orders of 1647, like the Pilgrim Code of Law, 1636  and Fundamental Orders of Connecticut, 1639 , is a complete document of foundation and qualifies as a true constitution. Like these other early colonial constitutions, the Acts and Orders creates a federal system wherein the towns composing it continue to have functioning governments with their own powers and competencies. In 1663 Rhode Island received a new charter from the king, which essentially ratified the government established by the Acts and Orders. In 1776 Rhode Island retained this charter as the constitution for its new independent statehood simply by removing any references to the king, and the charter was not replaced until 1842. Scholars of American constitutionalism thus put the duration of the Acts and Orders, Rhode Island’s first constitution, at 195 years, which was a record duration for a modern constitution until the Massachusetts Constitution of 1780 turned 196 in 1976. The Acts and Orders is also notable in that it was the first colonial foundation document specifically based on English principles of law instead of principles and practices derived from religion.
Acts and Orders
Made and agreed upon at the Generall Court of Election, held at Portsmouth, in Rhode Island, the 19, 20, 21 of May, Anno. 1647, for the Colonie and province of Providence.
Mr. John Coggeshall is chosen Moderator of the present Assembly.
2. It was Voted and found, that the major part of the Colonie was present at this Assemblie, whereby there was full power to transact.
3. It was further agreed, that in case the Assemblie departe unto the number of Fortie; those fortie shall stay and act as if the whole were present, and be of as full authoritie.
4. It was agreed, that all should set their hands to an engagement to the Charter.
5. It was agreed and ordered, that a week before any General Courte, notice should be given to every Towne by the head officer, that they chuse a Committee for the Transaction of the affaires there, except it bee for the Election of Generall Officers; and such as go not, may send their votes sealed.
6. It was ordered, upon the request of the Commissioners of the Towne of Providence, that their second instruction should be granted and established unto the, Vidg’t. Wee do voluntarily assent, and are freely willing to receive and to be governed by the Lawes of England, together with the way of the Administration of them, soe far as the nature and constitution of this Plantation will admit, desiring (soe far as possible may be,) to hold a correspondence with the whole Colonie in the modell that hath been latelie shewn vnto us by our worthy Friends of the Island, if the Generall Court shall compleate and confirm the same, or any other Modell as the Generall Courte shall agree vpon according to our Charter.
7. It was unanimously agreed, That we do all owne and submit to the Lawes, as they are contracted in the Bulke with the Administration of Justice, according thereto, which are to stand in force till the next Generall Courte of Election, and every Towne to have a Coppie of them, and then to present what shall appeare therein not to be suitable to the Constitution of the place, and then to amend it.
8. It was agreed, that Warwick should have the same priviledges as Providence.
9. It was agreed, that the Generall Courte of Tryall should be held at Newport vpon the second Tuesday of June next ensuing.
10. It was agreed, that the Election of Offices should be by papers.
Mr. John Coggeshall is chosen President of this Province, or Colonie.
Mr. Roger Williams is chosen Assistant of Providence,
Mr. John Samford is chosen Assistant of Portsmouth,
Mr. Wm. Coddington is chosen Assistant of Newport,
Mr. Randall Holden is chosen Assistant of Warwick,
William Dyre is chosen Gen. Recorder,
Mr. Jeremy Clerke is chosen Treasurer.
11. It is ordered, that all cases presented, concerning General Matters for the Colony, shall be first stated in the Townes, Vigd’t, That is, when a case is propounded, The Towne where it is propounded, shall agitate and fully discuss the matter in their Towne Meetings and conclude by Vote; and then shal the Recorder of the Towne, or Towne Clerk, send a coppy of the agreement to every of the other three Townes, who shall agitate the case likewise in each Towne and vote it, and collect the votes. Then shall they commend it to the Committee for the General Courte (then a meeting called,) who being assembled and finding the Major parte of the Colonie concurring in the case, it shall stand for a Law till the next Generall Assembly of all the people, then and there to be considered, whether any longer to stand yea or no; Further it is agreed, that six men of each Towne shall be the number of the Committe premised, and to be freely chosen. And further it is agreed, that when the General Courte thus assembled, shall determine the cases before hand thus presented, It shall also be lawful for the said General Court, and hereby are they authorized, that if vnto them or any of them some case or cases shall be presented that may be deemed necessary for the public weale and good of the whole, they shall fully debate, discuss and determine ye matter among themselves; and then shall each Committee returning to their Towne declare what they have done in the case or cases premised. The Townes then debating and concluding, the votes shall be collected and sealed up, and then by the Towne Clarke of each Towne shall be sent with speed to the General Recorder, who, in the presence of the President shall open the votes; and if the major vote determine the case, it shall stand as a Law till the next General Assemblie then or there to be confirmed or nullified.
12. It is ordered, that the Courte of Election shall alway be held upon the first Tuesday after the 15th of May, annually, if wind or weather hinder not. Then the General Court of Tryall immediately to succeed vpon the dissolving of the said General Court, Vidg’t: the next day; and that the next General Court of Election shall be held at Providence Towne. Further, it is agreed, that forasmuch as many may be necessarily detained, that they cannot come to the General Court of Election, that then they shall send their votes sealed upon unto the said Court, which shall be as effectual as their personal appearances.
13. It is ordered, that each Towne shall choose and order ye authoritie of two Surveyors for the Highways, and appoint time to mend them; also that they are to have notice of all cattle that shall be exported, and returne the marks of them unto the Towne; and if any shall presume to export any without giving notice of it to the men appointed, or their Deputies he shall forfeit all such Cattle so exported, or the worth of them.
14. It is ordered, that the Inhabitants of Portsmouth and Newport here present doe presently choose their officers of the Island; but that this act shall be not precedent for the future, but that the constant course of choosing shall be hereafter, when as the year is out, as the Major votes of the Townes of Portsmouth and Newport shall order it sometimes before the year is out, in some peaceable and moderate way which they shall agree upon.
the engagement of the officers
You. A. B ———, being called and chosen vnto public employment, and the office of ———, by the free vote and consent of ye Inhabitants of the Province of Providence Plantations (now orderly met), do, in the present Assemblie, engage yourself faithfully and truly to the utmost of your power to execute the commission committed vnto you; and do hereby promise to do neither more nor less in that respect than that which the Colonie [authorized] you to do according to the best of your understanding.
We, the Inhabitants of the Province of Providence Plantations being here orderly met, and having by free vote chosen you ———, to public office and officers for the due administration of Justice and the execution thereof throughout the whole Colonie, do hereby engage ourselves to the utmost of our power to suport and vphold you in your faithful performance thereof.
15. It is ordered, that the Councills of Newport and Portsmouth, shall consult and agree how and in what manner (within these thirtie dayes) the monthly and quarterly Courts shall be ordered, and who shall sit therein; further, it is agreed, that all cases depending shall be heard and issued at the next Generall Court of Tryall.
16. It is ordered, that the Townes shall appoint men to view all Goates and Swine killed or to be killed, and shew the eare markes of them unto the said persons or one of them, whereby it may appeare to be their own; and if any shall presume to conceale eyther Swine or Goats so killed or to be killed, shall forfeit five pounds; one half to the State, the other to him that will sue for it, eyther by action or bill. It shall be lawfull also, for those that are appointed to the service being necessarily detayned, to make, constitute, and appoint a Deputie.
17. It is ordered, that John Cooke and Thomas Brownell, are chosen Water Bailies for the Colonie.
18. It is ordered, that the Seale of the Province shall be an Anchor.
19. It is ordered, that the Councils of the Townes consisting of six men shall be chosen at their next Towne Meetings.
20. It is ordered, that the Sea Lawes, otherwise called the Lawes of Oleron, shall be in force among us for the benefit of Seamen (vpon ye Island,) and the Chief Officers in the Towne shall have power to summon the Court and determine the cause or causes presented.
21. It is ordered, that none shall goe out of the Court without leave; or if any do depart, he shall leve his vote behind him, that his power remain, though his person be absent.
22. It is ordered, forasmuch as Mr. Roger Williams hath taken great paines and expended much time in the obtayning of the Charter for this Province of Noble Lords and Governors; be it enacted and established, that in regard of his so great travaile, charges and good endeavours, we do freely give and grant to the said Roger Williams one hundred pounds, to be levied out of the three townes, Vidg’t: Fifty pounds out of Newport, thirtie pounds out of Portsmouth, and twentie pounds out of Providence, which rate is to be levied and paid in by the last of November next.
23. It is ordered, that forasmuch as there are some remote places inhabited and possessed within our Charter, and it is found necessary that a vigilant eye be had over them, it is ordered, that Newport shall take into their custody the Trading house or houses of the Narragansett Bay; Portsmouth to take in Prudence; and Patuxet shall be left to their choice, whether they will have Providence, Portsmouth or Newport over them. And it is ordered, that the officers of each Towne shall have full power and authoritie in them or eyther of them, according to their precincts, by this present Court assyned.
24. It is ordered, that there is free Libertie granted for the free Inhabitants of ye Province (if they will) to erect an Artillery Garden, and those that are desirous to advance the Art Military, shall have freedom to exercise themselves therein, and to agree of their forme, and choose their officers, as they shall agree among themselves.
25. Provided, [ ] shall choose their officers after the 15th of June next, vpon paine of forfeiting Tenn pounds a Town, if neglected.
26. It is ordered, that in cases of necessity without the bounds of the Townes, a special officer for ye execution of Justice, may be authorized by any of the Generall Officers for a general case.
27. It is ordered, that ye General Officers shall write to the Bay about Patuxet Inhabitants; and also write to the Inhabitants thereof to owne and choose the Government of the Province.
28. It is ordered, that the Dutch, French or other Alliants, or any Englishman inhabiting among them, shall pay the like customs and duties, as we doe among them for all such goods as shall be imported for the English, excepting beaver. Also, we do absolutely prohibit them or any of them to trade or barter with the Indians within our Jurisdiction, upon paine of forfeiture of Shipp and Goods; and this to take effect after due notice given. The Generall Officers are ordered to write to the Dutch Governor, and upon the returne of the answer it shall be commended to the Townes to consider of.
29. It is ordered, that all ye Inhabitants in each Towne shall choose their Military Officers from among themselves on the first Tuesday after the 12th of March; and that eight sevarall times in the yeare, the Bands of each plantation or Towne, shall, openlie in the field, be exercised and disciplined by their Commanders and Officers, in the months of May, August, January and February excepted; and on the first Monday of ye other months, all the Train Bands to make their personal appearances completely armed, to attend their colors, by 8 o’clock in the morning, at the second beate of ye Drum; and if any appear not, they shall forfeit and pay five shillings into the hands of the Clarke of ye Band; and if any shall come defective in his Armes or furniture, he shall forfeit and pay ye sum of twelve pence, after the Town Council have caused them to be supplied; and that all men who shall come and remaine ye space of twenty days, shall be liable to ye injunction of this order; Provided, herdsmen, fighter-men and such as be left of necessity at Farmes, shall pay two shilings and sixpence for every dayes absence: And that the two Chief officers in each Towne, to witt: one of the Commonweale, the other of the Band, upon the exhibition of the complaint by ye Clark (which shall be within three dayes after the fault committed,) shall judge and determine of ye reasons of the excuses, who, upon the hearing thereof, shall determine whether every such person shall pay five shillings, two shillings and sixpence, or nothing; and according as they find any defective, shall give their warrants to ye Clark to distraine their Goods if they shall refuse to pay what is ordered. And if the Clarke shall neglect to gather up what is ordered, he shall forfeit and pay so much into the hands of the Captain, the next training day; And that all the fines and forfeitures shall be imployed to the use and service of the Band. And the Towne Councils shall have power to cause those which are defective in armes, to be supplied in an equal way according to Estate and strength. And if any of ye Traine Band after his appearance shall refuse or neglect the command of his Captain, to be exercised and disciplined, he shall forfeit as much as if he had not appeared: And that the Town Council shall order the power of the Military Officers within the Towne, and in all caes that concerne ye whole, the President and ye foure assistants, and ye Captains of every Band shall be the Councill of Warr; that if any of the Officers of ye Band be at any time left out, they shall beare Armes again, for ye Constitution of our place will not beare the contrary: that every Inhabitant of the Island above sixteen or under sixty yeares of age, shall alwayes be provided of a Musket, one pound of powder, twenty bullets, and two fadom of Match, with sword, rest, bandaleers all completely furnished.
30. It is ordered, that in regard of ye many incursions that we are subjected vnto, and that an Alarum for ye giving of notice thereof is necessary when occasion is offered. It is agreed, that this form be observed. Vidg’t: Three Muskets distinctly discharged, and a Herauld appointed to go speedilie threw the Towne, and crie, Alarum! Alarum!! and the Drum to beate incessantly; upon which, all to repair (upon forfeiture and the Town Councill shall order) unto the Town House, there to receive information of the Town Councill what is farther to be done.
31. It is ordered and agreed, that if any person or persons, shall sell, give deliver, or any otherwayes convey any powder, shott, lead, gunn, pistoll, sword, dagger, halberd or pike to the Indians that are or may prove offensive to this Colonie, or any member thereof, he or they, for the first offence, shall forfeit ye sum of five pounds; and for his second offence, offending in the same kind, and being lawfully convicted, shall forfeit ten pounds; half to the State, and half to him that will sew for it, and no wager of Law by any means to be allowed to the offender. And, it is further ordered, that if any person shall mend or repaire their Guns, or [ ] he shall forfeit the same penaltie.
32. It is ordered, that the Towne Officers shall given their engagements in their severall Townes to ye General Officer in that Towne, before they execute their office.
33. It is ordered, that if the Indians shall offer to putt away upon exchange or barter, their false peag for good, and warrant it so to be, and it be found otherwise, it shall be confiscated to the Public Treasury.
34. It is ordered, that every Towne shall have a coppy of the Lawes and Orders, and that each Towne shall pay for their coppy; and also, that the Councell for the Townes shall order the fees for their Officers, and the Generall Officers shall order the fees of the General Officers: Provided, that nothing already concluded in the Bulck of Lawes be any wayes crossed or envaded.
for the province of providence.
Forasmuch as we have received from our Noble Lords and Honored Governours, and that by virtue of an ordinance of the Parliament of England, a free and absolute Charter of Civill incorporation, &c. Wee do joyntlie agree to incorporate ourselves, and soe to remaine a Body Politicke by the authoritie thereof, and therefore do declare to own ourselves and one another to be Members of the same Body, and to have right to the Freedome and priviledges thereof by subscribing our names to these words, following: vidg’t.
Wee, whose names are here vnder written, doe engage ourselves to the vttmost of our Estates and Strength, to mainteyne the authority and to enjoy the Libertie granted to vs by our Charter, in the extent of itt according to the Letter, and to mainteyne each other by the same authoritie, in his lawfull right and Libertie.
And with this our Charter gives vs powre to governe ourselves and such other as come among vs, and by such a forme of Civill Government as by the Voluntarie consent, &c., shall be found most suitable to our Estate and condition,
It is agreed, by this present Assembly thus incorporate, and by this present act declared, that the forme of Government established is democraticall; that is to say, a Government held by ye free and voluntarie consent of all, or the greater parte of the free Inhabitants.
And now to the end that we may give, each to other, (notwithstanding our different consciences, touching the truth as it is in Jesus, whereof, upon the point we all make mention,) as good and hopeful assurance as we are able, touching each man’s peaceable and quiett enjoyment of his lawfull right and Libertie, we doe agree vnto, and by the authoritie above said, Inact, establish, and confirme these orders following.
That no person, in this Colonie, shall be taken or imprisoned, or be disseized of his Lands or Liberties, or be Exiled, or any other otherwise molested or destroyed, but by the Lawfull judgment of his Peeres, or by some known Law, and according to the Letter of it, Ratified and confirmed by the major part of the Generall Assembly lawfully met and orderly managed.
2. That no person shall (but at his great perill,) presume to beare or execute any office, that is not lawfuly called to it, and confirmed in it; nor though he be lawfully called and confirmed, presume to doe more or less than those that had powre to call him, or did authorize him to doe.
3. That no Assembly shall have powre to constitute any Lawes for the binding of others, or to ordaine Officers for the execution thereof, but such as are founded upon the Charter and rightlie derived from the General Assemblie, lawfully met and orderly managed.
4. That no person be employed in any service for the Publick Administration of Justice and Judgment vpon offenders, or between Man and Man, without good encouragement, and due satisfaction from the Publick, eyther out of the common stock, or out of the stocks of those that have occasioned his service; that so, those that are able to serve, may not be unwilling, and those that are able and willing, may not be disabled by being overburthened. And then, in case a man be called vnto Office by a lawfull Assemble, and refuse to beare office, or be called by an officer to assist in the execution of his office, and refuse to assist him, he shall forfeit as much again as his wages would have amounted unto, or be otherwise fined by the judgment of his Peers, and to pay his fine or forfeiture, unless the Colony, or that lawful Assembly release him. But in case of eminent danger, no man shall refuse.
And now, forasmuch as our Charter gives us powre to make such Lawes, Constitutions, Penalties, and Officers of Justice for the execution thereof as we, or the greater part of vs shall, by free consent, agree vnto, and yet does premise that those Lawes, Constitutions, and Penalties soe made shall be conformable to the Lawes of England, soe far as the nature and constitution of our place will admit, to the end that we may show ourselves not only unwilling that our popularity should prove (as some conjecture it will,) an Anarchie, and so a common Tyranny, but willing and exceedingly desirous to preserve every man safe in his person, name and estate; and to show ourselves, in soe doing, to be also vnder authoritie, by keeping within the verge and limitts prescribed us in our Charter, by which we have Authoritie in this respect to act; Wee do agree and by this present act determine, to make such Lawes and Constitutions soe conformable, &c., or rather to make those Lawes ours, and better known among us; that is to say, such of them, and so farr, as the nature and constitution of our place will admit.
touching the common law.
It being the common right among common men, and is profitable eyther to direct or correct all, without exception; and it being true, which that Great Doctor of the Gentiles once said, that the Law is made or brought to light, not for a righteous man, who is a Law vnto himselfe, but for the Lawless and disobedient in the Generall, but more particularly for murderers of Fathers and Mothers; for Manslayers, for whoremongers, and those that defile themselves with mankind; for Menstealers, for Lyars and perjured persons, vnto which, vpon the point, may be reduced the common Law of the Realme of England, the end of which is, as is propounded, to preserve every man safe in his own person, name and estate; Wee doe agree to make, or rather to bring such Lawes to light for the direction or correction of such lawless persons, and for their memories sake to reduce them to these five generall Lawes or Heads; viz.:
1. Under that head of murdering Fathers and Mothers, being ye highest and most unnatural, are comprehended those Lawes that concerne High Treason, Pettie Treason, Rebellion, Misbehaviour, and their accessaries.
2. Under the Law for Manslayers, are comprehended those Lawes that concerne Self-murder, Murder, Homicide, Misadventure, casual death, cutting out the Tongue or Eyes, Witchcraft, Burglarie, Robberie, Burning of Houses, Forcible entryes, Rescues and Escape, Riotts, Routs and Unlawfull Assemblies, Batteries, Assaults and Threats and their accessaries.
3. Under the Law for Whoremongers, and those that defile themselves with mankind, being the chief of that nature, are comprehended those Lawes that concerne Sodomie, Buggerie, Rape, Adulterie, Fornication, and their Accessaries.
4. Under the Law for Menstealers, being the chief of that nature, are comprehended those Lawes that concern Theft of men, Larcenie, Trespasses by Men or beasts, Fraudulent dealing by deceitfull bargaine, Covenants, Conveyances by Barratrie, Conspiracie, Champertie and Maintenance, by forging or rasing records, Writs, Deeds, Leases, Bills, &c., and by using fallse weights and measures and their accessaries.
5. Under the Law for Lyars and perjured persons, being the chiefe of that nature, are comprehended such as concerne perjurie itselfe, breach of covenant, Slander, False witnesse-bearing, and their accessories.
And as necessary concomitants hereof, to prevent Murder, Theft and Perjury, We do joyntlie agree in this present Assemblie, to make or produce such Laws as concerne provision for the poore, soe that the impotent shall be mainteyned and the able employed. And to prevent Poverties, it is agreed, that such Lawes be made and produced as concernes ye ordering of Alehouses, and Taverns, Drunkenness and unlawfull gaming therein; and instead of such to propagate Archerie, which is both man-like and profitable; and to prevent whoredom and those evils before mentioned, it is agreed by this present Assemble to constitute and establish some ordinance touching Marriage, Probate of Wills, and Intestates ...
It is agreed and enacted by this present Assemblie, that no inferiour shall rise up or rebell against his superiour, especially such to whom he more directlie owes faith, dutie, and ready obedience; it being altogether unsuitable to civill order, which by the authoritie of our Charter we purpose to propagate; wherefore, we doe declare that we counte it a kind of Rebellion for a servant to threat, assault, or strike his master; and the penaltie for a threat or assault shall be, to be bound to his good behaviour; for striking especially if it be malitiouslie, to be sent to the House of Correction, there to remaine for six months, or to satisfie his master. It is allso Rebellion for a child to threat, assault, or strike his Parents, and his Penaltie shall be, to be sent to the House of Correction, there to remaine a twelve-month, or to humble himself to his parents’ satisfaction. It is allso Rebellion to threat, assault or strike a Judge of Record; and the penaltie to be bound to his good behaviour, and further fined by his Peers. It is also a kind of Rebellion to withstand an arrest, and the execution of Judgment; the penaltie to be bound to his good behaviour, and to be judged by his Peers.
It is agreed by this present Assemblie, and by this act declared, that for any man to sue words of contempt against a chief officer, especially in the execution of his office, is against good manners, and misbehaviour; and his penaltie shall be, to be bound to appeare at the next Court, where such matters are to be Tryed: where, being lawfully convict by his Peers, he shall be bound to his good behaviour, so to remaine for three months space, or till the next Court following ...
First of Sodomie, which is forbidden by this present Assemblie threwout the whole Colonie, and by Sundry Statutes of England. 25 Hen. viii. 6; 5 Eliz. xvii. It is a vile affection, whereby men given up thereto, leave the natural use of woman, and burne in their lusts, one toward another; and so men with men worke that which is vnseemly, as that Doctor of the Gentiles in his letter to the Romans once spake, i. 27; The Penaltie concluded by that State under whose authoritie we are, is Felonie of death, without remedye. See 5 Eliz. 17.
Buggerie is forbidden by this present Assembly threwout the whole Colonie, and also strengthened by the same Statute of England. It is a most filthy lying with a beast as with a woman, and is abomination and confusion; the just reward whereof prepared to our hands, is Felonie of death, without remedie. See 5 Eliz. 17.
Rape is forbidden by this present Assembly threwout the whole Colonie; and we do hereby declare, that it is when a man through his vile and unbridled affection, lyeth with, forceth a woman against her will; like hereunto is the knowing of a maid carnally who is vnder ye age of Tenn yeares, though it be with her consent. The penaltie we do declare to be Felonie of death. See, for confirmation, 13 Edw. i. 34; and if the Woman consent after, she loseth her dowre of Lands. See 6 Rich. ii. 6. And so doth a married wife that elopeth with her adventurer. 13 Edw. i. 34.
Adulterie and Fornication.
Is forbidden by this present Assembliy threwout the Colonie, with this memento, that the Most High will judge them. 13 Hen. iv. Adultery is declared to be a vile affection, whereby men do turn aside from ye naturall use of their own wives, and do burn in their lusts towards strange flesh; and we do agree, that what penaltie the Wisdome of the State of England have or shall appoint touching these transgressions, the accessarie and effects shall stand in force threwout the whole Colonie.
It is agreed, and by this present Assembly enacted, that the taking away, deflouring or contracting in marriage a maid under sixteen yeares of age, against the will of, or vnknown to the Father or Mother of the Maid, is a kind of stealing of her; and that the penaltie shall be eyther five years’ imprisonment or satisfaction of her parents. 4 Will. and Mary, 8 ...
Touching Liars and Perjured Persons.
Forasmuch as the consciences of sundry men, truly conscienable, may scruple the giving or taking of an oath, and it would be noways suitable to the nature and constitution of our place (who professeth ourselves to be men of different consciences, and no one wiling to force another) to Debar such as cannot do so, eyther from bearing office amongst vs, or from giving in testimony in a case depending.
Be it enacted by the authority of this present Assembly, that a solemn profession or Testimony in a Court of Record, or before a Judge of Record, shall be accounted, threwout the whole Colonie of as full force as an oath; and because many, in giving engagement or testimony, are usually more over awed with the Penaltie which is known, than with the most High, who is little known in the Kingdoms of men.
It is, therefore, further agreed and ordered, that he that falsifieth such a solemn profession or testimony, shall be accounted among vs as a perjured person, and his penaltie shall be that, looke what detriment is or might be brought vpon others by falsifying his engagement or testimony, the same shall fall upon himself. He shall also forfeit five pounds, and be disenabled eyther to beare office, or to give in Testimony in any Court of Record, vntill the Colonie release him; and this forfeiture and determinet, (the partie being lawfully convicted,) shall be, one halfe to the King’s Custome, and the other shall go to the partie grieved that sues for it, by action of debt or bill: but in case the partie be not worth so much, then shall he be imprisoned in the House of Correction till it be wrought out, or else sett in the Pillory in some open place, and have his Eares nayled thereto; and then may the partie grieved receive his dammages; and the procurer shall have the like penaltie. See 5 Eliz. 9.
Breach of Covenant.
Breach of Covenant is by the present Assembly, forbidden threwout the whole Colonie.
It is enacted, and agreed, that they that perform not their Covenants made eyther by word or writing, (excepting those before excepted,) shall be liable to satisfie what the other can prove he is damnified by reason of the non-performance thereof, which he may recover upon an action of the case.
And be it further enacted, that no person retayning a servant, shall putt their servant away, nor no person retayned shall depart from their master, mistress or dame, untill the end of the term covenanted for, vss it be for some reasonable and sufficient cause, witnessed before and allowed by the Head Officer or Officers of the Towne, and three or foure able and discreet men of the Comon Councill or Towne appointed thereto, vnder their hands in writing, for the discharge eyther of Master or Servant.
And be it enacted further, that that Master, Mistress or Dame, that putts away their servant without sufficient cause, and so allowed with such a discharge, shall forfeit the sum of forty shillings; and if any servant departe from his or her Master, Mistress or Dame’s service before the end of the Terme covenanted for, vnless it be for some sufficient cause allowed of as before, or not serve according to the Tenure of the promise or covenant, vpon complaint vnto the Head Officers of the Towne and their associates, the matter being fully proved, he shall be committed to Ward without Baile or Mainprize, vntill by sufficient sureties he be bound to his Master, Mistress or Dame, to perform the engagement.
Be it enacted, by the authoritie above said, that he that shall retaine a Servant now lawfully dismissed and sett at liberty from his Master, shall forfeit for every such offence five pounds, which the Master may recover by an action of Debt. See 5 Eliz. 4 ...
Forasmuch as a good name is better than precious ointment, and Slaunderers are worser than dead flies to corrupt and alter the savour thereof, it is agreed, by this present Assembly, to prohibitt the raysing or spreading of false reports, Slaunderers and Libells throwout the whole Colonie; and we further declare that the partie offended or grieved by such False reports, Slaunders, and Libells as hereafter followeth, may bring his action of slaunder against the reporter and speaker thereof, in case vpon demand he reaveale not the author, but if revealed, then against the Author, and shall recover sufficient damages. The cases actionable are these; for a man to say eyther by word or writing, and yet not able to prove it, that another is a Traytor, a Fellon, a Thiefe, a Cutt-purse, or hath stole something; a perjured person, or hath forsworn himselfe in any man’s case; a Bankrupt, a Cheater, or one that lives by cheating; to call and be not able to prove it, an unmarried woman a whore; a young man unmarried, a whoremaster; to say a young man keepeth a House of Bawdery; or that a Tradesman maketh nothing but bad wares; or that a Merchant or shop-keeper hath nothing but rotten, bad and vnsound wares in his house or shopp, or to speak any thing in the dispragement of a Man’s goods that he putts to sale whereby he may be damnified.
It is agreed and ordered, by this present Assembly, that each Towne shall provide carefully for the reliefe of the poore, to maintaiyne the impotent, and to employ the able, and shall appoint an overseer for the same purpose. See 43 Eliz. 2.
It is ordered, Common Scoulds shall be punished with the Ducking Stoole.
It is ordered, by the authority of this present Assembly, that no Taverne, Alehouse or Victualling House, shall be kept threwout the whole Colonie without Licence or Allowance; and whosoever shall keep Taverne or Alehouse, or Victualling house without licence, shall forfeit twenty shillings, which shall be levied to the vse of the poore, and shall by the head officer of the Towne be forthwith discharged. See 3 Car. 3.
Be it also enacted by the authority of this present Assembly, that each Towne shall have power to allow Tavernes, Alehouses, and Victualling houses within its own precincts; and the Head officer of the Towne shall binde by Recognizance every such Taverne, Alehouse keeper and Victualler so allowed, with two such sufficient sureties to keep good order in his house, and not to vse such games as are judged by the Lawes of England to be vnlawfull in such Common houses, as Carding, Dicing, Slide, Groat, &c., and not to suffer any Townsmen to remeine tipling therein for one hours space, vnder the penaltie of ten shillings for every such default, vpon the view of the head officers, or vpon the information of sufficient witnesses vpon their solemn testimony, or by his owne confession; And every Townsman so taken, shall forfeit for every time, three shillings and four pence; which forfeitures shall be taken by distreint and given to the overseer for the use of the Poore.
Drunkenness is forbidden throwout this whole Colonie; and it is further agreed, that the head officer of each Towne, or any other Magistrate shall have powre upon his owne view, confession of the partie or proof vpon one witness his Testimony, to convict a person of drunkenness, who shall be by him enjoyned to pay five shillings, for that fact into the hands of the overseer for the vse of the poore, within one week after the same conviction; and in case the partie refuse so to do or be not able; then shall he be sett in the Stocks, and there remaine for the space of six houres; and for the second offence, being convicted as aforesaid, he shall forfeit ten shillings, to be paid as before; and shall be bound by the head officer or magistrate before whom he is convicted, to his good behaviour, with two sufficient sureties in the summe of tenpounds. 21 Jac. 7 ...
It is agreed, and ordered by this present Assemblie, for the preventing of many evills and mischiefs that may follow thereon, that no contract or agreement between a Man and a Woman to owne each other as Man and Wife, shall be owned from henceforth threwout the Whole Colonie as a lawfull marriage, nor their Children or Issue so coming together to be legitimate or lawfullie begotten, but such as are, in the first place, with the parents, then orderly published in two severall meetings of the Townsmen, and lastly confirmed before the head officer of the Towne, and entered into the Towne clerk’s Booke. And that man that goes contrarie to this present Ordinance established, shall forfeit five pounds to the parents of the Maid, and be bound to his good behavior; and all the accessories shall forfeit five pounds a man, halfe whereof shall go to the grieved parents and the other halfe of the Towne ...
Touching the Public Administration of Justice
According to the Lawes Agreed Upon and
Established Throwout the Whole Colonie.
Be it enacted by this present Assemblie, that for matters of greater weight and moment, there shall be erected a Generall Court of Tryalls for the whole Colonie, and Generall Officers for the Administration of Justice therein.
The Court shall be held twice in the yeare, in case there be matters that are then and there to be Tryed, Sci: upon the next day after the dissolving of the Court of Election held in May, and the other upon the last Tewsday of the eighth moneth, commonly called October, and these Courts to be held at ———.
It is further agreed, that to these Colonie Courts of Tryall, shall appertaine the Tryall of such Crimes as may hazard Life, Limbe, Disfranchisement or Bannishment; and such Trespasses, Debts, and differences (as by the Common Councill eyther of Towne or Townes shall be judged too weightie for a more private determining). Also, such matters of difference as fall out betweene Towne and Towne, or between parties dwelling in two Townes more remote, or in the case of an arrest of a man belonging to a neighbour Colonie, or, in cases of great importance; also, attaints of Inquests, and Tryalls of perjuries, and finally all such matters as are not referred, by any charter or order, vnto any Towne apart, or to the Island, or two Townes joyntlie.
Be it enacted further by the authority of this present Assemblie, that the Generall Officer for the whole Colonie shall be these, Sci: One President, foure Assistants, in every Towne one, one General Recorder, one Publick Treasurer, and a General Sargent; which Officers shall be chosen every yeare in the General Assembly, and towards the latter end of that Session. They shall also be chosen after this matter: for President, Recorder, Treasurer and Serjant each Towne shall present one; and he which the major part of the General Assembly pitcheth upon by paper, shall stand and be confirmed in his Office for that yeare; and for Assistant, each Towne shall present two, and he which the vote by paper pitcheth upon, shall be the Assistant in that Towne.
Be it further enacted, that the President and Assistants shall have such a Commission by which they shall be conservators of the peace in the same Towne where they live and throwout the whole Colony. By this Commission, they shall keep the peace, and in case it be broke by threats, assaults, or affrayes, eyther before any of them or vpon lawfull complaint, he or they shall bind the parties by recognizance with two sufficient sureties vnto the peace, and to prepare at that Court where such matters are to be tryed, and soe to remaine, vntill by proclamation in open Court he shall be acquitted ...
By a speciall commission, the President shall sitt as Chief Judge in the Colonie Courts of Tryall, to see that order and course of Law appointed thereto be dulie observed, and the verdict being given in, he is to pronounce the sentence.
In case it be a matter of Felonie, to deliver vp to the Generall Sargent to the execution, or see it done and performed.
In case it be a matter of Trespass, debt or any other difference betweene Man and Man; he is, together with the Assistants, to tax the costs and to send forth a Writ of Execution unto the Generall Sargant at least tenn dayes before, to give the whole Colonie notice, to the end they may prepare for the Generall Assemblie.
By a speciall commission, all the assistants, if not necessarily deteyned, shall sit with the President in ye Generall Courts of Tryall, and shall supply the roome of a Coroner in each Towne where they dwell.
touching the generall recorder.
Be it enacted by this present Assemblie, that the Generall Recorder’s Office shall be in the generall, to keep a Coppie of all the Records or Acts of the Generall Assemblie, Generall and particular Courts of Judicature, Rolles of the Freemen of the Colonie, Records, Evidences, Sales and Bargaines of Land, Wills and Testaments of the Testators, and orders of the Townsmen touching the Intestate, Records of the Limitts and Bounds of Townes, their Highways, Driftwayes, Commons and Fencings, Priviledges and Liberties. And forasmuch as matters of greatest concernement ought to be kept and preserved with the greatest vigilance: Be it enacted, that the Generall purchases, (which are all we can shew for our right to our Lands, and the Charter which is that which gives vs who are Subjects right to exercise authority one over another,) be kept in a strong chest, having foure severall Locks annexed thereto, and that each Towne keep a key thereof, that soe, as there is a common right and interest therein, there may be no access vnto them in a divided way, (lest also, they be divided) but with a common consent. And let it be further enacted, that this chest be placed in the safest place of the Colonies; and the Generall Recorder, also, shall have the key to the Roome in which it is placed.
Be it also enacted, that he that is Generall Recorder, shall supply the roome of the Clerke of the peace or assizes, in the Generall Court of Tryall, as it is a Court of Assize or Goale delivery. And as Clark of assize, his office shall be to receive examination, information, recognizances and bailments, presented by the Officer who committed the Felon to prison. He shall also receive the bill of indictments presented by him who was bound to prosecute the prisoner; he shall read the indictments and enroll the acts of the Court itself, the indictment, the process, the answer, the traverse itself, the verdict, the judgment thereupon, and the execution. And as this Court is a Court of Common Please, soe he shall supply the roome of the master of the office, and in that regard his office shall be, vpon the request of the plaintiff or his Attorney, (in matters that clearly appertaine vnto that Court,) to direct a Writ to the General Sargant to arrest the defendant, in such an action, of such a man, and to take baile for his appearance by such a day as the writ makes mention to be returnable; and in case the General Sargant returne ye defendants Bond by the day appointed, then shall he enter into his appearance, and in case they proceed, his office shall be, to file such declarations and answers. But in case after a declaration is filed in expectation of an answer, or to make his defence, and he doth not, then the plaintiff taketh him by fault, which is called confessing the action; and then the Recorders office shall be, to enter and record a nihil dicit (id est,) he saith nothing thereon, and so shall be send out a writ of enquiry of dammages vnto the Towne where the defendant lives. And the head officer of the Towne, at the next Towne Court, shall enquire of damages, and by a writ of destringes to the Sargant, shall cause the defendant for that purpose to come to the Court, and in case he appeare not, he shall forfeit the distraint, and the head officer of the Towne may distraine again and again. The matter being issued in the Towne, it shall be returned into the office, and the Recorder shall then enter the postia returne, and give forth to the General Sargent a writ of Execution.
touching the publick treasurer.
Be it enacted, that the Publick Treasurer shall only receive such finds, forfeitures, amercements and taxes, as fall vpon such as are not within the liberties of the three Townes specified in the Charter; and Warwick, that is invested with the like priviledges and powre; and that the Townes mentioned shall receive and keep safe in their custody all finds, forfeitures and amercements that shall be levied upon the Inhabitants thereof vntill they be called for by the authority from England; but if vpon our humble petition, they be granted to the Colony, then shall they enjoy them as a helpe in their Government as their custom forever. Moreover, looke what comes into the Publick Treasury by that way, he shall give account of in the Generall Assembly.
touching the generall sargant.
Be it enacted by this present Assemblie, that he that is chosen Generall Sargant shall be an able man of Estate, for so ought a Sheriff to be, whose place he supplies; whose office shall be to attend all Colonye Courts of Tryall, and to serve eyther by himselfe or the Serjants of each Towne, all Writts originall or judiciall; who having arrested a man for that which he is bailable, he shall take baile by an obligation to himselfe, with sufficient sureties; the condition of which shall be, to make appearance in the place, and at the time, the bill, writt, or warrant specifies. He shall also gather vp all fines, forfeitures and amercements, that are made at the Colonie Courts of Tryall, and shall returne them faithfully unto the Treasurie to which they appertaine. When he is chosen, he shall be solemnly engaged to exact no more than his wages, and to take no more than is forfeited; for not serving writts and warrants, he shall lose to the party grieved, treble damages, forfeit Forty Pounds; twentie whereof is the King’s Custome, and twentie shall be to the party that sueth. And he that summons or doth arrest without warrant, shall be imprisoned till he pay to the party grieved ten pounds, his costs and damages, and twentie pounds to the King. See the 43 Eliz. 6. He shall also have the charge of the prison for the Colony, and the prisoners therein.
But forasmuch as Justice cannot be had in the general Court of Judicature, notwithstanding these Officers, without Pleaders and Tryars, be it enacted, that there shall be both, and rules given for their orderly proceedings.
touching the inquest for tryars.
To save needless expenses and travailes, be it enacted, by the authority of this present Assemblie, that all Traitors, Felons, and such as are suspected thereof shall be indicted by twelve or sixteen honest and lawful men of, and also in the Towne where the person was taken, or of, and in the Towne where his Tryall shall be, and at the Court of Tryall. And that three of the most sufficient and least suspicious persons in each Towne bee chosen by the Townsmen tenn days before, and sent to that Court to attend the Tryall of such matters as shall be presented, and that these be returned and arrayed by the General Sargent, so that the parties may have knowledge of them foure dayes before the Sessions of the Justices upon paine of ten pounds; and that they be chosen by neyther old men above seventy yeares, nor mean men, nor such as have a charter of exemption, nor an indictor, nor interested in the deliverance of an indictee. See 42 Edw. iii. 11; 13 Edw. i. 37; 25 Edw. iii. 3; 3 Hen. v. 3; 23 Hen. vi. 9.
And be it further enacted, that no man shall pass vpon the Life of a Man in this Colonie, nor in plea real, no, nor personal in any issue joyned, that amounts in the dammage to the value of forty marks, nor touching forcible entry, nor touching Riotts, who is not clear worth forty pounds, nor in smaller matters in the Towne that is not clearly worth twenty pounds.
And be it further enacted, that men have their peremptory and other challenges, to the full, as they have them in England, where for petty Treason, Murder and Felony, they may challenge to the number of twentie. See 32 Hen. viii. 3.
And be it enacted, that the inquest upon the Tryall of persons indicted of Felonie, shall eyther allow of, or reject the witnesses according to their consciences, of all or the major part of them. 4 Jac. 3.
And be it further enacted, that the inquest being thus chosen by the Townes, and summoned by the Sargant, in case any of them appeare not, their roome shall be supplied by such among those that stand about, or that live in the same Towne (and they refusing, the same fine,) where the Colonie Court of Tryall is held, and every man soe chosen and summoned, if he appeares not, shall lose and forfeit five shillings and ten pence; or what he might have gott if he had attended the service which the Court shall determine, which, by a distringas from the Court, the Serjant shall require, and levie and deliver into the Treasury to which it belongs.
And be it further enacted by the authority of this present Assemblie, that if any false verdict be given in any action, suit, or demand, either in this or in any other Court of the Colonie, in any thing personall, as Trespass, Debt, Difference, &c.; the party grieved shall have a writ of attaint out of this Court of the Colonie, putting in sufficient security against each partie giving in such an untrue verdict, whereby yee parties shall be summoned by great distresses; and in case the thing in demand and the verdict surmounts forty pounds, to the three able men of each Towne shall be added twelve of the same Towne, where the Colonie Court of Tryall shall be, being worth three score pounds a piece, if such and so many are to be had, and in case these find they gaven an vntrue verdict, every one of the former inquest shall forfeit twenty pounds, ten whereof is the King’s custome, and ten pounds shall go to the partie grieved, that sues for it; he shall be also not of credence, neither shall his solemn testimony be taken in any Court, vntill the Colonie release him. But if, eyther the demand or verdict be vnder forty pounds, then shall the inquest be worth fifty pounds a man; and every one of the petty inquest being found guilty, shall forfeit five pounds, the like punishment as is before specified. See 23 Hen. viii. 3; 37 Hen. viii. 5. And in case he that sues for the writ of attaint makes it not good, every party attainted may have his action against him, and recover sufficient dammages.
Be it enacted by the authority of this present Assembly, that any man may plead his own case in any Court, or before any Judge of Record Throwout the whole Colonie, or may make his Attorney to plead for him, or may vse the Attorney that belongs to the Court which may be two in a Towne, to wit; discreet, honest and able men for understanding, chosen by the Townsmen of the same Towne, and solemnly engaged by the head officer thereof, not to vse any manner of deceit to beguile eyther Court or partie. And these being thus chosen and confirmed, shall be authorized, being entertayned, to plead to any Court in the Colonie; but in case such pleader or Attorney shall vse any manner of deceit as is aforesaid, and be thereof attainted, or that shall be notoriously in any default of record, he shall forfeit his place, and never more be admitted to plead in any Court of the Colonie. See 3 Edw. 1, 28; 4 Hen. iv. 18.
Be it also further enacted, that in matters of oversie betweene partie and partie, or Towne and Towne, that belongs to the hearing and determination of the Colony Court of Tryall, the partie complaining, or his attorney, shall goe to the General Record, and in his office shall enter his action; then shall he request a writ to arrest the defendant as is abovesaid, returnable at least twenty dayes before the Court; the bond of the defendant being returned into the Recorder’s Office, the plaintiff or his Attorney, shall, within foure dayes after, file his declaration in the Recorder’s Office (or he shall be non-suited) where the defendant or his Attorney may see it and take forth a coppie thereof; then shall the defendant or his Attorney, file the answer eight dayes before the Court. And so shall they join issue, that Court, and proceed to Tryall, where the witnesses to prove or disprove the issue being produced, the plaintiff and defendant may plead their own cause, or have their Attorneys plead for them before ye Bench, and the inquest; and the verdict and judgment being given, the Recorder shall enter it. But in case the defendant puts in his answer, and at the Court makes his demurr, then shall the Court judge of the sufficiency thereof, and so shall accept the demurr, or proceed; but in case he neyther puts in his answer, nor demurr, or gives in his answer, but puts not in his demurr, and yet appeares not, then shall be entered, he saith nothing; and so shall it be taken for granted he confesseth the action, and then shall go forth a writ from the Court vnto the Towne in which he lives, to enquire of dammages, which being returned to the Recorder, a process or writ shall go forth for Execution.
And now forasmuch as we have prescribed Rules and orders, whereby are declared both the authoritie, office and duty of every person that shall be employed about this Colonie Court of Tryall, and have likewise declared, that the President’s and foure assistants’ office (among other things that belong to their care) is to see that order and course of Law appointed to this Court be dewly observed.
It is agreed, and by the authority of this present Assemblie enacted, that as the former Lawes are committed to their custodie to see them observed or executed, soe are these constitutions, so farr, as they have a respect vnto an orderly finding out of Justice and the administration thereof, committed to their charge, to see them observed.
And furthermore be it enacted, as that which adds to the comely and commendable order of this Court of Judicature, that at eight of the clock in the morning of those dayes vpon which the Court is appointed at the farthest, the President, the Towne Assistants, and the Head Officers of the same Towne where the Court shall be kept, (for their Councill and helpe,) shall sit in the publicke Sessions house, and also the Generall Recorder, where shall attend those that seeke for justice, their pleaders, witnesses, Tryars and the Generall Sarjant with his prisoners ready either to rid his hands of them, or else to doe execution vpon them or others as Justice shall require.
In the first place, the Recorder shall present, and if there be time read over the bills of indictment; and if, in case they have been examined or presented by an inquest before, then shall he pass them over; if not, then shall the President sett apart the honest and lawfull men prepared for that purpose, by a solemn engagement, faithfully to enquire touching the bills, and soe shall send them forth with the same.
Then, in case there be any controversies or difficulties between partie and partie that are lawfully and orderly presented to that Court for Tryall, the Recorder shall read them over in the open Courte, and that which was first joyned for issue, shall come first to the hearing. And because the twelve men are to have the hearing and determining of all controversies and differences depending between partie and partie, they shall be first called forth by the President and placed in order before those that are to be judged, from whom they shall receive a solemn charge vpon the perill and penaltie the law hath provided, to do justice between the parties contending, according to evidence. This done, then shall the parties, (having first had their lawfull challenges,) or their Attornies plead their cases before them, produced their witnesses for what they affirme, which shall be taken upon the like perill. When they have sufficiently discussed the difference, then shall the President or any other of the Assistants mind the inquest of the most material passages and arguments that are brought by one and other for the case and against it, without alteration or leaning to one party or another, (which is too commonly seene,) and soe shall the President advise the inquest to goe forth and do justice and right between their neighbours, according to the evidence that has been brought, for what has been pleaded. These being gone forth, then may the Court proceed to deale with such as are bound by recognizance eyther to release them or to continue their Bonds, according as there is just cause, and may read over the Indictments that have been enquired into before, and are now presented as true bills, or that were committed to the inquest in the beginning of the Court and are returned true bills, The twelve men returning with a verdict it shall be recorded, and soe shall they be employed, vntill all the differences be ended.
And forasmuch as it belongs to the Justices to taes the costs, lett the vacant times be so employed.
These controversies, differences and demands being thus all issued, then let the Recorder call to ye Sarjant to bring forth ye Prisoners. Before each prisoner lett his inductment be read, and he demanded what he saieth to the indictment, whether Guilty or not. If he answer Guilty, his confession shall be recorded. If he sayeth not Guilty, then lett him be demanded if he will be tryed by God and the Country, sci: his countrymen. If he consents, the President shall call forth the twelve men before him, wish him to look upon them, and ask if he have any thing against them; if not, then he shall charge them vpon the former perill, to deale faithfully and truly in the matter; it being a matter of consequence and moment, and to proceed to determine according to the light of their consciences, vpon the evidence given in, and if any be found Guilty of death, to be reprieved to the next Court. And thus having issued all matters depending, the President with the assistants and councellors shall give forth writs vnto the Generall Sarjant for the severall executions, and so break vp the Court for that time and sitting.
And be it further enacted, by the authoritie of this present Assemblie, that the perill that any officer shall susteyne, for going without, besides, or beyond his Commission, shall be first lawfuly and orderly judged. And that no officer employed in this Colonie shall think it strange or hard dealing to be brought to his faire Tryall, and Judgment for what he hath done amiss.
Be it enacted, that the Cheife Officers of the Colonie, Island, or Townes, shall be tryed and judged in the Generall Assembly by a committe of the most able and impartiall men, chosen out from among them, against whom they may have also their lawfull challenges: and that all other officers abusing their offices, shall be tryed and judged eyther in the Towne by which they were chosen; or, if the Towne please, or if not chosen by the Towne, then shall they be tryed and judged by the Colonie Courts of Tryalls, And in case any man sues for Justice against an officer or other, and he cannot be heard, or is heard and cannot be righted by any Law extant among vs, then shall the partie grieved petition to the Generall or Law making Assemblie, and shall be relieved.
And now forasmuch as the choice of all the officers that are to be employed in this Colonie, like the Colonies about vs, once a year, whereby it may be easily collected, that he that hath an office or charge this yeare, may have none another; and it would be too prejudicial to the peace of the place or quiet Government thereof, for a man out of a discontented selfwill, or other pretence, not to resigne, together with his office, belonging to the Colonie, Island or Towne, to him that is chosen and appointed thereto ...