without foundation from the beginning, and this decision was deliberately reaffirmed on May 9, 1682, by Cranfield's commission.

The second period embraced the time between the union and the time when the governmental machinery of New Hampshire as a royal province was put in operation, in January, 1680.

The first period comprised about twenty, and the second less than forty, years.

Considering that what was done by Massachusetts was in a sense sheer usurpation, the so-called union was a very peculiar and mixed affair. Hampton, as we have seen, had always been treated by it as part of the Bay colony. No change was made, and none was needed. Exeter, up to the presentation of her petition of May 12, 1643, had always asserted her political autonomy and had maintained it, but the "politic head" and "long arm" of the Bay colony, to use the words of Judge Smith, had left Exeter alone, and then refused to treat with her except as another Hampton.

"Exetter petition was answered, being it fell within our patent, the Court took it ill they should Capitulate with them.” I Prov. Pap. 168.

Having Hobson's choice, Exeter submitted on or before September 7, 1643. But the same politic head treated with Dover and Portsmouth upon a different basis. On April 14, 1641, a species of tripartite treaty was entered into between them, as independent nations might, by which Massachusetts was to have "jurisdiction of government of the said people, dwelling or abiding within the limits of both the said patents, to be ruled and ordered in all causes, criminal and civil, as inhabitants, dwelling within the limits of Massachusetts government," &c., &c.

The contrast between the position of Hampton and Exeter on the one hand, and Dover and Portsmouth on the other, is very marked. As to the first, the Bay colony was lord of the fief, and, as to the latter, only had government over the people in certain matters and with certain limitations.

In this way the statutory and customary law of the Bay colony became the law of New Hampshire, but in strictness this applied only to the territory occupied by the four towns. What

ever the rest took, they took as it were by absorption and usage. For this reason the law of New Hampshire in some respects remains to this day a Chinese puzzle, both to courts and antiquarians. There is still another difficulty. The law as written and the law as administered may differ widely. The long heads of the Bay colony were looking much more to the future of New Hampshire than to the present. Nobody knows how many people were in the four towns at the time of the union, but one of our greatest men, in his address before this society on June 8, 1831, said, "No reasonable calculation can assign to our territory at that period a population exceeding one thousand souls." The evidence upon this point is meagre, fragmentary, and imperfect. The most useful is that which throws back its reflected light from later years. The chances are very strong that Mr. Atherton over-estimated rather than under-estimated the number, and that the people at that time within the four towns numbered less than one thousand, and at the time the government was put in operation, less than three thousand. For obvious reasons there was a party in all these towns opposed to the domination of the Bay colony. Therefore as a matter of policy, except in taxation and a few other matters, the New Hampshire towns were treated with liberality, and practically allowed to govern themselves by their own officers.

In 1631, as a matter of religious principle and duty to God, the Bay colony enacted that church members only should be freemen, which deprived all others of the right to vote and hold office. On September 8, 1642, this law was dispensed with as respects the New Hampshire towns. This put the New Hampshire blackleg on the same legal level as the Massachusetts Puritan. Twice at least the Bay colony restored, but once with some qualification, the test of 1631 (3 Mass. Records 357; 4 Mass. Records (Part I) 420); but they probably did not intend to break faith, for it was undoubtedly done with the understanding that while, like "Ensign Stebbins," they were in favor of the law, they were opposed to its enforcement in New Hampshire. The result of this policy was, that local customs and usages grew up which overshadowed those originating in the Bay colony, to which I have referred.

In 1643 Norfolk county was created. Salisbury was made the shire town. Salisbury, Hampton, Haverhill, Exeter, Dover, and Portsmouth constituted the county. Hampton and Exeter had to get justice at Salisbury, but Portsmouth and Dover, favored here as in the treaty, were constituted a separate jurisdiction, and a local court with associates was created for their special benefit. And here commences, or rather recommences, the era of New Hampshire local law.

But very little of this has been preserved, either in the records or otherwise. Reference has already been made in general terms to the revolutionary ordinances, statutory and customary law of the Bay colony, which by the union became the law of the New Hampshire towns. It may be useful to note others. Every sheriff in New Hampshire, from the earliest period to the present day, has made his return on the "back side" of his writ. Why?

On May 12, 1675, the Bay colony provided as follows:

"Whereas the marshalls oath requires them to make returne of such attachments as they serve to the Courts to wch they are retournable, which in many cases are very chargeable & troublesome, it is therefore ordered, that henceforth marshalls & constables shall be obleidged only to make theire returne vpon the backside of the attachmt, and the same deliuer to the plaintiffe or his orders, sealled vp, when demanded, giving first a copy thereof to the defendant, if he desires it; and that no marshall or constable shall be bound to serve any attachmts till they haue theire ffees payd them which the law allowes, any law, vsage, or custome to the contrary notwthstanding; and the aforesajd clause in the marshalls oath relating to the returne of attachmts to the Court is hereby repealled and declared disobleiging." 5 Records of Mass. 29.

The provision that the same should be delivered to the plaintiff, etc., was construed in practice to mean to the plaintiff's attorney. This had been done in the Bay colony to some extent, at least as early as 1657. By custom this became the law of New Hampshire, and has so continued to the present day.

From the passage of this ordinance to the present time, it has been the law here that no marshal, constable, sheriff, undersheriff, deputy-sheriff, or special deputy-sheriff was obliged to

serve any kind of process, unless his fees were first paid or tendered to him.

Sheriffs were entirely unknown in New Hampshire until after the advent of Cranfield in 1682. Here, as in the Bay colony, marshals, deputy-marshals, and constables took their places. In Massachusetts a practice had grown up for the marshals and constables to appoint deputies to make service who naturally served their own and their masters' interests, rather than the law.

On May 12, 1675, the Bay colony ordered,—

"That it shall not henceforth be in the power of any marshall to make, constitute, or appoint any deputy in his place or stead to serve attachments or levy executions where the sajd deputy is personally related or concerned, nor shall it be lawfull for any constable to make a deputy to serve attachments or levy executions in any case, any law, custome, or vsage to the contrary notwthstanding." 5 Records of Mass. 28.

It has long been the law of New Hampshire, that where the sheriff' was a party, or related to either party, or interested in the suit, the process must be directed to and served by a coroner. I am, however, unable to find any evidence that any constable here, from the early settlement to the present time, ever attempted to appoint a deputy, or that such an office was recognized by the law.

An attachment of goods and lands was a traction or seizure of the same. If A gave a deed to B, they both went upon the premises, and A gave seizin to B by pulling up a "twige and turfe,” and delivering the same to B, or by taking up a porringer or vessel of water, and delivering the same to B. Then B recited at the end of the deed, that on a day stated he had received the seizin in this way. In a suit between A and B, the marshal, sheriff, or constable went upon the land, took possession of it in the same way, and returned that he had attached the house or the land, describing the latter by metes and bounds. When he made the levy, he went upon the land and delivered seizin by twig and turf, or by water, to the plaintiff, and the plaintiff acknowledged seizin and possession in the same way. And this was the rule in New Hampshire for nearly two hundred years.

On May 12, 1675, the Bay colony provided,—

"For the better direction & regulating of all clarkes, secretarys, marshalls, & constables, in refference to the granting & serving of executions, it is hereby ordered and enacted by this Court, that all executions shall be made according to the words of the judgement, wthout addition or substraction, and that the officer that grants the same keepe vpon reccord the day, moneth, & yeare when it was granted, and that all marshalls & constables take care to see them recorded; and in case of houses & lands taken vpon execution, it concernes the person or persons to whom thay are deliuered to see it duely recorded, which being don, shall be a legall assurance of such houses & lands to him & his heires foreuer" 5 Records of Mass. 28, 29.

Here the clerk extends the record, as it is termed, but otherwise this is still the law of New Hampshire.

In October, 1644, it was provided that a plaintiff might take out a summons or attachment at his option, but that if he took out an attachment he could not proceed with his action unless he gave the defendant a notice thereof in writing, or left one at his usual place of abode; and this has substantially been the law here ever since.

Until October 15, 1650, if the defendant appeared, or remained till after judgment, as the case might be, such appearance or remaining discharged the attachment. At that time it

was provided that such appearance or judgment should have no such effect, but that all goods attached" should "stand jngaged until the judgement, or the execution graunted vppon sajd judgment be discharged." 4 Mass. Records (Part I) 27. But to obviate so palpable an inconvenience, in 1659 it was provided that unless the execution was taken out within one month after judgment, the attachment should “be released and void in law." 4 Mass. Records (Part I) 365, 366. This has been the law here ever since, and this is the basis of the masterly judgments in Kittredge v. Warren, 14 N. H. 509, Kittredge v. Emerson, 1 N. H. 227, and Peck v. Jenness, 16 N. H. 516.

At an early day in the Bay colony parties to suits neglected to appear seasonably in court unless they were sent for.