NEGLIGENCE, contracts, torts. When considered in relation, to
contracts, negligence may be divided into various degrees, namely, ordinary,
less than ordinary, more than ordinary. 1 Miles' Rep. 40.
2. Ordinary negligence is the want of ordinary diligence; slight or less than
ordinary negligence, is, tlie want of great diligence; and gross or more than
ordinary negligence, is the want of slight diligence.
3. Three great principles of responsibility, seem naturally to follow this
4. - 1. In those contracts which are made for the sole benefit of the
creditor, the debtor is responsible only for gross negligence, good faith alone
being required of him; as in tile case of a depositary, who is a bailee without
reward; Story, Bailm. 62; Dane's Ab. c. 17, a, 2; 14 Serg. & Rawle, 275; but
to this general rule, Pothier makes two exceptions. The first, in relation to
the contract of a mandate, and the second, to the quasi contract negotiorum
gestorum; in these cases, he says, the party undertaking to perform these
engagements, is bound to use necessary care. Observation Generale, printed at
the end of the Traite des Obligations.
5. - 2. In those contracts which are for the reciprocal benefit of both
parties, such as those of sale, of hiring, of pledge, and the like, the party is
bound to take, for the object of the contract, that care which a prudent man
ordinarily takes of his affairs, and he will therefore be held responsible for
ordinary neglect. Jones' Bailment, 10, 119; 2 Lord Raym. 909; Story, Bailm. 23;
Pothier, Obs. Gener. ubi supra.
6. - 3. In those contracts made for the sole interest of the party who has
received, and is to return the thing which is the object of the contract, such,
for example, as loan for use, or commodatum, the slightest negligence will make
him responsible. Jones' Bailm. 64, 65; Story's Bailm. 237; Pothier, Obs. Gen.
7. In general, a party who has caused an injury or loss to another in
consequence of his negligence, is responsible for all the consequence. Hob. 134;
3 Wils. 126; 1 Chit. TI. 129, 130; 2 Hen. & Munf. 423; 1 Str. 596; 3 East,
R. 596. An example of this kind may be found in the case of a person who drives
his carriage during a dark night on the wrong side of the road, by which he
commits an injury to another. 3 East, R. 593; 1 Campb. R. 497; 2 Cam b. 466; 2
New Rep. 119. Vide Gale and Whatley on Easements, Index, h. t.; 6 T. R. 659; 1
East, R. 106; 4 B. & A; 590; S. C. 6 E. C. L. R. 628; 1 Taunt. 568; 2 Stark.
R. 272; 2 Bing. R. 170; 5 Esp. R. 35, 263; 5 B. & C. 550. Whether the
incautious conduct of the plaintiff will excuse the negligence of the defendant,
see 1 Q. B. 29; 4 P. & D. 642; 3 M. Lyr. & Sc. 9; Fault.
8. When the law imposes a duty on an officer, whether it be by common law or
statute, and he neglects to perform it, he may be indicted for such neglect; 1
Salk. R. 380; 6 Mod, R. 96; and in some cases such neglect will amount to a
forfeiture of the office. 4 Bl. Com. 140. See Bouv. Inst. Index, h. t.
NEGLIGENT ESCAPE. The omission to take such a care of a prisoner as a
gaoler is bound to take, and in consequence of it, the prisoner departs from his
confinement, without the knowledge or consent of the gaoler, and eludes
2. For a negligent escape, the sheriff or keeper of the prison is liable to
punishment in a criminal case; and in a civil case, be is liable to an action
for damages at the suit of the plaintiff. In both cases, the prisoner may be
retaken. 3 Bl. Com. 415.
NEGOTIABLE. That which is capable of being transferred by assignment;
a thing, the title to which may be transferred by a sale and indorsement or
2. A chose in action was not assignable at common law, and therefore
contracts or agreements could not be negotiated. But exceptions have been
allowed to this rule in relation to simple contracts, and others have been
introduced by legislative acts. So that, now, bills of exchange, promissory
notes, bills of lading, bank notes, payable to order, or to bearer, and, in some
states, bonds and other specialties, may be transferred by assignment,
indorsement, or by delivery, when the instrument is payable to bearer.
3. When a claim is assigned which is not negotiable at law, such, for
example, as a book debt, the title to it remains at law in the assigner, but the
assignee is entitled to it in equity, and he may therefore recover it in the
assignor's name. See, generally, Hare & Wall. Sel. Dec. 158 to 194
NEGOTIABLE PAPER, contracts. This term is applied to bills of exchange
and promissory notes, which are assignable by indorsement or delivery.
2. The statute of 3 & 4 Anne (the principles of which have been generally
adopted in this country, either formally, or in effect,) made promissory notes
payable to a person, or to his order, or bearer, negotiable like inland bills,
according to the custom of merchants.
3. This negotiable quality transfers the debt from the party to whom it was
originally owing, to the holder, when the instrument is properly indorsed, so as
to enable the latter to sue in his own name, both the maker of a promissory
note, or the acceptor of a bill of exchange, and the other parties to such
instruments, such as the drawer of a bill, and the indorser of a bill or note,
unless the holder has been guilty of laches in giving the required notice of
non-acceptance or non-payment. But in order to make paper negotiable, it is
essential that it be payable in money only, at all events, and not out of a
particular fund. 1 Cowen, 691; 6 Cowen, 108; 2 Whart. 233; 1 Bibb, 490, 503; 1
Ham. 272; 3 J. J. Marsh, 174, 542; 3 Halst. 262; 4 Blackf. 47; 6 J. J. Marsh,
170; 4 Mont. 124. See 1 W. C. C. R. 512; 1 Miles, 294; 6 Munf. 3; 10 S. & R.
94; 4 Watts, 400; 4 Whart. R. 252; 9 John. 120; 19 John. 144; 11 Verm. 268; 21
Pick. 140. Vide Promissory note. Vide 3 Kent. Com. Lecture 44; Com. Dig.
Merchant, F 15, 16; 2 Hill, R. 59; 13 East, 509; 3 B. & C. 47; 7 Bing. 284;
5 T. R. 683; 7 Taunt. 265, 278; 3 Burr. 1516 6 Cowen, 151.
4. To render a bill or note negotiable, it must be payable to order, or to
bearer. When it is payable " to A B only," it cannot be negotiated so as to give
the indorsee a claim against any one but his indorser. Dougl. 615. An
indorsement to A B, without adding " or order," is not restrictive to A B alone,
he may, therefore, assign it to another; Str. 557; or he may indorse it in
blank, when any attempt, afterwards, to restrain its negotiability will be
unavailing. Esp. N. P. Cas. 180; 1 Bl. Rep. 295. Vide Blank Indorsement;
NEGOTIATION, contracts The deliberation which takes place between the
parties touching a proposed agreement.
2. That which transpires in the negotiation makes no part of the agreement,
unless introduced into it. It is a general rule that no evidence can be given to
add, diminish, contradict or alter a written instrument. 1 Dall. 426; 4 Dall.
340; 3 S. & R. 609; 7 S. & R. 114. See Pourparler
NEGOTIATION, merc. law. The act by which a bill of exchange or
promissory note is put into circulation by being passed by one of the original
parties to another person.
2. Until an accommodation bill or note has been negotiated, there is no
contract which can be enforced on the note: the contract, either express or
implied, that the party accommodated will indemnify the other, is, till then,
conditional. 2 Man. & Gr. 911.
NEGOTIORUM GESTOR, contracts. In the civil law, the negotiorum gestor
is one who spontaneously, and without authority, undertakes to act for another
during his absence, in his affairs.
2. In cases of this sort, as he acts wholly without authority, there can,
strictly speaking, be no contract, but the civil law raises a quasi mandate by
implication, for the benefit of the owner in many such cases. Poth. App. Negot.
Gest. Mandat, n. 167, &c.; Dig. 3, 5, 1, 9; Code, 2, 19, 2.
3. Nor is an implication of this sort wholly unknown to the common law.,
where there has been a subsequent ratification of acts of this kind by the
owner; and sometimes, when unauthorized acts are done, positive presumptions are
made by law for the benefit of particular, parties. For example, if a person
enters upon a minor's lands, and takes the profit's, the law will oblige him to
account to the minor for the profits, as his bailiff, in many cases. Dane's Abr.
ch. 8, art. 2; SS 10; Bac. Abr. Account 1; Com. Dig. Accompt, A 3.
4. There is a case which has undergone decisions in our law, which approaches
very near to that of negotionum gestorum. A master bad gratuitously taken charge
of, and received on board of his vessel a box, containing doubloons and other
valuables, belonging to a passenger, who was to have worked his passage, but was
accidentally left behind. During the voyage, the master opened the box, in the
presence of the passengers, to ascertain its contents, and whether there were
contraband goods in it; and he took out the contents and lodged them in a bag in
his own chest in his cabin, where his own valuables were kept. After his arrival
in port, the bag was missing. The master was held responsible for the loss, on
the ground that he had imposed on himself the duty of carefully guarding against
all peril to which the property was exposed by means of the alteration in the
place of custody, although as a bailee without hire, he might not otherwise have
been bound to take more than a prudent care of them; and that he had been guilty
of negligence in guarding the goods. 1 Stark. R. 237. See Story, Bailm. 189;
Story, Agency, 142; Poth. Pand. 1. 3, t. 5, n. 1 to L4; Poth. Ob. n. 113; 2
Kent, Com. 616, 3d ed; Ersk. Inst. B. 1, t. 3, SS 52; Stair, Inst. by Brodie, B.
l, t. 8, 3 to 6.
NEIF, old Eng. law. A woman who was born a villain, or a bond
NEMINE CONTRADICENTE, legislation. These words, usually abbreviated
nem. con., are used to signify the unanimous consent of the house to which they
are applied. In England they are used in the house of commons; in the house of
lords, the words to convey the same idea are nemine dissentiente.
NEPHEW, dom. rel. The son of a person's brother or sister. Amb. 514; 1
Jacob's Ch. R. 207.
NEPOS. A grandson. This term is used in making genealogical
NEUTRAL PROPERTY, insurance. The words "neutral property " in a policy
of insurance, have the effect of warranting that the property insured is
neutral; that is, that it belongs to the citizens or subjects of a state in
amity with the belligerent powers.
2. This neutrality must be complete hence the property of a citizen or
subject of a neutral state, domiciled in the dominions of one of the
belligerents, and carrying on commerce there, is not neutral property; for
though such person continue to owe allegiance to bis country, and may at any
time by returning there recover all the privileges of a citizen or subject of
that country; yet while he resides in the dominion of a belligerent he
contributes to the wealth and strength of such belligerent, and is not therefore
entitled to the protection of a neutral flag; and his property is deemed enemy's
property, and liable to capture, as such by the other belligerent. Marsh. Ins.
B. 1, c. 9, s. 6; l John. Cas. 363; 3 Bos. & Pull. 207, u. 4; Esp. R. 108; l
Caines' R. 60; 16 Johns. R. 128. See also 2 Johns. Cas. 478; 1 Caines' C. Err.
xxv.; l Johns. Cas. 360; 2 Johns. Cas. 191.
3. If the warranty of neutrality be false at the time, it is made, the policy
will be void ab initio. But if the 'ship, and property are neutral at the time
when the risk commences, this is a sufficient compliance with a warranty of
neutral property, and a subsequent declaration of war will not be a breach of
it. Dougl. 705. See 1 Binn. 293; 8 Mass. 308; 14 Johns. R. 308; 5 Binn. 464; 2
Serg. & Rawle, 119; 4 Cranch, 185; 7 Cranch, 506; 2 Dall. 274.
NEUTRALITY, international law. The state of a nation which takes no
part between two or more other. nations at war with each other.
2. Neutrality consists in the observance of a strict and honest impartiality,
so as not to afford advantage in the war to either party; and particularly in so
far restraining its trade to the accustomed course, which is held in time of
peace, as not to render assistance to one of the belligerents in escaping the
effects of the other's hostilities Even a loan of money to one of the
belligerent parties is considered a violation of neutrality. 9 Moore's Rep. 586.
A fraudulent neutrality is considered as no neutrality.
3. In policies of insurance there is frequently a warranty of neutrality. The
meaning of this warranty is, that the property insured is neutral in fact, and
it shall be so in appearance and conduct; that the property does belong to
neutrals; that it is or shall be documented so as to prove its neutrality, and
that no act of the insured or his agents shall be done which can legally
compromise its neutrality. 3 Wash. C. C. R. 117. See 1 Caines, 548; 2 S. &
R. 119; Bee, R. 5; 7 Wheat. 471; 9 Cranch, 205; 2 John. Cas. 180; 2 Dall. 270; 1
Gallis. 274; Bee, R. 67.
4. The violation of neutrality by citizens of the United States, contrary to
the provisions of the act of congress of April 20, 1818, 3, renders the
individual liable to an indictment. One fitting out and arming a vessel in the
United States, to commit hostilities against a foreign power at peace with them,
is therefore indictable. 6 Pet. 445; Pet. C. C. R. 487. Vide Marsh. Ins. 384 a;
Park's Ins. 'Index, h. t.; 1 Kent, Com. 116; Burlamaqui, pt. 4, c. 5, s. 16
& 17; Bunk. lib. 1, c. 9; Cobbett's Parliamentary Debates; 406; Chitty, Law
of Nat., Index, h. t.; Mann. Comm. B. 3, c. 1; Vattel, 1. 3, c. 7, SS 104;
Martens, Precis. liv. 8, c. 7, SS 306; Boucb. Inst. n. 1826-1831.
NEW. Something not known before.
2. To be patented, an invention must be new. When an invention has been
described in a printed book which has been publicly circulated, and afterwards a
person takes out a patent for it, his patent is invalid, because the invention
was not new, 7 Mann' & Gr. 818. See New and Useful Invention.
NEW AND USEFUL INVENTION. This phrase is used in tlie act of congress
relating to granting patents for inventions.
2. The invention to be patented must not only be new, but useful; that is,
useful in contradistinction to frivolous or mischievous inventions. It is not
meant that the invention should in all cases be superior to the modes now in use
for the same purposes. 1 Mason's C. C. R. 182; 1 Mason's C. C. R. 302; 4 Wash.
C. C. R. 9: 1 Pet. C, C. R. 480, 481; 1 Paine's C. C. R. 203; 3 Mann. Gr. &
Scott, 425. The law as to the usefulness of the invention is the same in France.
Renouard, c. 5, s. 16, n. 1, page 177.
NEW FOR OLD. A term used in the law of insurance in cases of
adjustment of a loss, when it has been but partial. In making such adjustment
the rule is to apply the old materials towards the payment of the new, by
deducting the value of them from the gross amount of the expenses for repairs,
and to allow the deduction of one-third new for old upon the balance. See 1
Cowen, 265; 4 Cowen, 245; 4 Ohio, 284; 7 Pick. 259; 14 Pick. 141.
NEW or NOVEL ASSIGNMENT, pleading. Declarations are conceived in very
general terms, and sometimes, from the nature of the action, are so framed as to
be capable of covering several injuries. The effect of this is, that, in some
cases, the defendant is not sufficiently guided by the declaration to the real
cause of complaint; and is, therefore, led to apply his answer to a different
matter from that which the plaintiff has in view. For example, it may happen
that the plaintiff has, been twice assaulted by the defendant, and one of the
assaults is justifiable, being in self-defence, while the other may have been
committed without legal excuse. Supposing the plaintiff to bring an action for
the latter; from the generality of the statement in the declaration, the
defendant is not informed to which of the two assaults the plaintiff means to
refer. The defendant may, therefore, suppose, or affect to suppose, that the
first is the assault intended, and will plead son assault demesne. This plea the
plaintiff cannot safely traverse, because an assault was in fact committed by
the defendant, under the, circumstances of excuse here alleged; the defendant
would have a right under the issue joined upon such traverse, to prove these
circumstances, and to presume that such assault, and no other, was the cause of
action. The plaintiff, therefore, in the supposed case, not being able safely to
traverse, and having no ground either for demurrer, or for pleading in
confession and avoidance, has no course, but, by a new pleading, to correct the
mistake occasioned by the generality of the declaration, and to declare that he
brought his action not for the first but for the second assault and this is
called a new assignment. Steph. PI. 241-243.
2. As the object of a new assignment is to correct a mistake occasioned by
the generality of the declaration, it always occurs in answer to a plea, and is
therefore in the nature of a replication. It is not used in any other part of
3. Several new assignments may occur in the course of the same series of
4. Thus in the above example, if it be supposed that three distinct assaults
had been committed, two of which were justifiable, the defendant might plead as
above to the declaration, and 'then, by way of plea to the new assignment,, he
might again justify, in the same manner, another assault; upon which it would be
necessary for the plaintiff to new-assign a third; and this upon the first
principle by which the first new assignment was required. 1 Chit. PI. 614; 1
Saund. 299 c.
5. A new assignment is said to be in the nature of a new declaration. Bac.
Abr. Trespass I, 4, 2; 1 Saund. 299 c. It seems, however, more properly
considered as a repetition of the declaration; 1 Chit. PI. 602; differing only
in this, that it distinguishes the true ground of complaint, as being different
from that which is covered by the plea. Being in the nature of a new or repeated
declaration, it is consequently to be framed with as much certainty or
specification of circumstances, as the declaration itself. In some cases,
indeed, it should be even more particular. Bac. Abr. Trespass, I 4, 2; 1 Chitt.
Pl. 610; Steph. Pl. 245. See 3 Bl. Com. 311; Arch. Civ. 318; Lawes' Civ. PI. Pl.
286; Doct. Pl. 318; Lawes' Civ. Pl. 163.
NEW HAMPSHIRE. The name of one of the original states of the United
States of America. During its provincial state, New Hampshire was governed, down
to the period of the Revolution, by the authority of royal commissions. Its
general assembly enacted the laws necessary for its welfare, in the manner
provided for by the commission under which they then acted. 1 Story on the
Const. Book, 1, c. 5, 78 to 81.
2. The constitution of this state was altered and amended by a convention of
delegates, held at Concord, in the said state, by adjournment, on the second
Wednesday of February, 1792.
3. The powers of the government are divided into three branches, the
legislative, the executive, and the judicial.
4. - 1st. The supreme legislative power is vested in the senate and house of
representatives, each of which bas a negative on the other.
5. The senate and house are required to assemble on the first Wednesday in
June, and at such times as they may judge necessary and are declared to be
dissolved seven days next preceding the first Wednesday in June. They are styled
The General Court of New Hampshire.
6. - 1. The senate. It will be considered with reference to the
qualifications of the electors the qualifications of the members; the number of
members; the duration of their office; and the time and place of their
7. - 1. Every male inhabitant of each town, and parish with town privileges,
and places unincorporated, in this state, of twenty-one years of age and
upwards, excepting paupers, and persons excused from paying taxes at their own
request, have a right at the annual or other town meetings of the inhabitants of
said towns and parishes, to be duly warned and holden annually forever in the
month of March, to vote in the town or parish wherein he dwells, for the
senators of the county or district whereof be is a member.
8. - 2. No person shall be capable of being elected a senator, who is not
seised of a freehold estate, in his own right, of the value of two hundred
pounds, lying within this state, who is not of the age of thirty years, and who
shall not have been an inhabitant of this state for seven years immediately
preceding his election, and a the time thereof he shall be an inhabitant of the
district for which he shall be chosen.
9. - 3. The senate is to consist of twelve members.
10. - 4. The senators are to hold their offices from the first Wednesday in
June next ensuing their election.
5. The senators are elected by the electors in the month of March.
11. - 2. The house of representatives will be considered in relation to its
constitution, under the same divisions which have been made in relation to the
12. - 1. The electors are the same who vote for senators.
13. - 2. Every member of the house of representatives shall be chosen by
ballot; and for two years at least next preceding his election, shall have been
an inhabitant of this state; shall have an estate within the district which he
may be chosen to represent, of the value of one hundred pounds, one half of
which to be a freehold, whereof he is seised in his own right; shall be, at the
time of his election, an inhabitant of the district he may be chosen to
represent and shall cease to represent such district immediately on his ceasing
to be qualified as aforesaid.
14. - 3. There shall be in the legislature of this state, a representation of
the people, annually elected, and founded upon principles of equality; and in
order that such representation may be as equal as circumstances will admit,
every town, parish, or place, entitled to town privileges, having one hundred
and fifty rateable male polls, of twenty-one years of age, and upwards, may
elect one representative; if four hundred and fifty rateable male polls, may
elect two representatives; and so, proceeding in that proportion, make three
hundred such rateable polls, the mean of increasing number, for every additional
representative. Such towns, parishes, or places, as have less than one hundred
and fifty rateable polls, shall be classed by the general assembly, for the
purpose of choosing a representative, and seasonably notified thereof. And in
every class formed for the above mentioned purpose, the first annual meeting
shall be held in the town, parish, or place, wherein most of the rateable polls
reside; and afterwards in that which has the next highest number and so on,
annually, by rotation, through the several towns, parishes, or places forming
the district. Whanever any town, parish, or place entitled to town privileges,
as aforesaid, shall not have one hundred and fifty rateable polls, and be so
situated as to render the classing thereof with any, other town, parish, or
place very inconvenient; the general assembly may, upon application of a
majority of the voters of such town, parish, or place, issue a writ for their
selecting and sending, a representative to the general court.
15. - 4. The members are to be chosen annually.
16. - 5. The election is to be in the month of March.
17. - 2. The executive power consists of a governor and a council.
18. - 1. Of the governor. 1. The qualifications of electors of governor, are
the same as those of senators.
19. - 2. The governor, at the time of his election, must have been an
inhabitant of this state for the seven years next preceding, be of the age of
thirty years, and have an estate of the value of five hundred pounds, one-half
of which must consist of a freehold in bis own right, within the state.
20. - 3. He is elected annually.
21. - 4. The election is in the month of March.
22. - 5. His general powers and duties are as follows, namely 1. In case of
any infectious distemper prevailing in the place where the general court at any
time is to convene, or any other cause whereby dangers may arise to the health
or lives of the members from their attendance, the governor may direct the
session to be holden at some other. 2. He is invested with the veto power. 3. He
is commander-in-chief of the army and navy, and is invested with power on this
subject very minutely described in the contitution as follows, namely: The
governor of the state for the time being shall be commander-in-chief of the army
and navy, and all the military forces of this state, by sea and land: ana shall
have full power, by himself or by any chief commander, or other officer or
officers, from time to time, to train, instruct, exercise and govern the militia
and navy; and for the special defence and safety of this state, to assemble in
martial array, and put in warlike posture the inhabitants thereof, and to lead
and conduct them, and with them encounter, repulse, repel, resist, and pursue,
by force of arms, as well by sea as by land, within and without the limits of
this state; and also to kill, slay, destroy, if necessary, and conquer by all
fitting ways, enterprise and means, all and every such person and persons as
shall at any time hereafter in a hostile manner attempt or enterprise the
destruction invasion, detriment, or annoyance of this state; and to use and
exercise over the army and navy, and over the militia in actual service, the law
martial in time of war, invasion, and also in rebellion, declared by the
legislature to exist, as occasion shill necessarily require. And surprise, by
all ways and means whatsoever, all and every such person or persons, with their
ships, arms, ammunition, and other goods, as shall in a hostile manner invade,
or attempt the invading, conquering, or annoying this state: And, in fine, the
governor is hereby entrusted with all other powers incident to the office of
captain-general and commander-in-chief, and admiral, to be exercised agreeably
to the rules and regulations of the constitution, and the laws of the land:
Provided, that the governor shall not at any, time hereafter, by virtue of any
power by this constitution granted, or hereafter to be granted to him by the
legislature, transport any of the inhabitants of this state, or oblige them to
march out of the limits of the same, without their free and voluntary consent,
or the consent of the general court, nor grant commissions for exercising the
law martial in any case, without the advice and consent of the council.
23. Whenever the chair of the governor shall become vacant, by reason of* his
death, absence from the state or otherwise, the president of the senate shall,
during such 'Vacancy, have and exercise all the powers and authorities which, by
this constitution, the governor is vested with, when personally present; but
when the president of the senate shall exercise the office of governor, he shall
not hold his office in the senate.
24. - 2. The council. 1. This body is elected by the freeholders and other
inhabitants qualified to vote for senators. 2. No person shall be capable of
being elected a councillor who has not an estate of the value of five hundred
pounds within this state, three hundred pounds of which (or more) shall be a
freehold in his own right, and who is not thirty years of age; and who shall not
have been in inhabitant of this state for seven years immediately preceding his
election; and at the time of his election an inhabitant of the county in which
he is elected. 3. The council consists of five mem bers. 4. They are elected
annually. 5. The election is in the month of March. 6. Their principal duty is
to advise the governor.
25.-3. The governor and council jointly. Their principal, powers and duties
are as follows: 1. They may adjourn the general court not exceeding ninety days
at one time, when the two houses cannot agree as to the time of adjournment. 2.
They are required to appoint all judicial officers, the attorney-general,
solicitors, all sheriffs, coroners, registers of probate, and all officers of
the navy, and general and field officers of the militia; in these cases the
governor and council have a negative on each other. 3. They have the power of
pardoning offences, after conviction, except in cases of impeachment.
26. - 2d. The judicial power is distributed as follows: The tenure that all
commissioned officers shall have by law in their offices, shall be expressed in
their respective commissions all judicial officers, duly appointed, commissioned
and sworn, shall hold. their offices during good behaviour, excepting those
concerning whom there is a different provision made in this constitution:
Provided, nevertheless, the governor, with consent of council, may remove them
upon the address of both houses of the legislature.
27. Each branch of the legislature, as well as the governor and council,
shall have authority to require the opinions of the justices of the superior
court, upon important questions of law, and upon solemn occasions.
28. In order that the people play not suffer from the long continuance in,
place of any justice of the peace, who shall fail in discharging the important
duties of his office with ability and fidelity, all commissions of justices of
the peace shall become void at the expiration of five years from their
respective dates; and upon the expiration of any commission, the same may, if
necessary, be renewed, or another person appointed, as shall most conduce to the
well being of the state.
29. All causes of marriage, divorce, and alimony, and all appeals from the
respective judges of probate, shall be heard and tried by the superior court
until the legislature shall by law make other provision.
30. The general court are empowered to give to justices of the peace
jurisdiction in civil causes, when the damages demanded shall not exceed four
pounds, and title of real estate is not concerned but with right of appeal to
either party, to some other court, so that a trial by jury in the last resort
may be had.
31. No person shall hold the office of a judge in any court, or judge of
probate, or sheriff of any county, after he has attained the age of seventy
32. No judge of any court, or justice of the peace, shall act as attorney, or
be of counsel, to any Party, or originate any civil suit, in matters which shall
come or be brought before him as judge, or justice of the peace.
33. All matters relating to the probate of wills, and granting letters of
administration, shall be exercised by the judges of probate, in such manner as
the legislature have directed, or may hereafter direct; and the judges of
probate shall hold their courts at such place or places, on such fixed days as
the conveniency of the people may require, and the legislature from time to time
34. No judge or register of probate, shall be of counsel, act as advocate, or
receive any fees as advocate or counsel, in any probate business which is
pending or may be brought into any court of probate in the county of which he is
judge or register.