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negative shall be also signed by the governor or council who made the same.
The captains and subalterns, in the respective regiments, shall be nominated by the field officers, and, if approved by the governor, shall be appointed by him.
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.
The governor, with the advice of council, shall have full power and authority, in the recess of the general court, to prorogue the same from time to time, not exceeding ninety days, in any one recess of said court; and during the session of said court, to adjourn or prorogue it to any time the two houses may desire, and to call it together sooner than the time to which it may be adjourned or prorogued, if the welfare of the state should require the same.
The governor of this 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; and 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 to 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 shall 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.
The power of pardoning offences, except such as persons may be convicted of before the senate, by impeachment of the house, shall be in the governor, by and with the advice of the council: but no charter of pardon granted by the governor, with advice of council, before conviction, shall avail the party pleading the same, notwithstanding any general or particular expressions contained therein, descriptive of the offence or offences intended to be pardoned.
No officer duly commissioned to command in the militia shall be removed from his office, but by the address of both houses to the governor, or by fair trial in court martial, pursuant to the laws of the state for the time being.
The commanding officers of the regiments shall appoint their adjutants and quarter masters; the brigadiers, their brigademajors; the major generals, their
aids; the captains and subalterns, their non-commissioned officers.
The governor and council shall appoint all officers of the continental army, whom, by the confederation of the United States, it is provided that this state shall appoint: as also all officers of forts and garrisons.
The division of the militia into brigades, regiments, and companies, made in pursuance of the militia laws now in force, shall be considered as the proper division of the militia of this state, until the same shall be altered by some future law.
No moneys shall be issued out of the treasury of this state, and disposed of, except such sums as may be appropriated for the redemption of bills of credit, or treasurer's notes, or for the payment of interest arising thereon, by warrant under the hand of the governor for the time being, by and with the advice and consent of the council, for the necessary support and defence of this state, and for the necessary protection and preservation of the inhabitants thereof, agreeably to the acts and resolves of the general court.
All public boards, the commissary-general, all superintend. ing officers of public magazines and stores, belonging to this state, and all commanding officers of forts and garrisons within the same, shall, once in every three months, officially, and without requisition, and at other times when required by the governor, deliver to him an account of all goods, stores, provisions, ammunition, cannon, with their appendages, and small arms, with their accoutrements, and of all other public property under their care respectively; distinguishing the quantity and kind of each, as particularly as may be; together with the condition of such forts and garrisons: and the commanding officer shall exhibit to the governor, when required by him, true and exact plans of such forts, and of the land and sea, or harbour or harbours adjacent.
The governor and council shall be compensated for their services from time to time, by such grants as the general court shall think reasonable.
Permanent and honourable salaries shall be established by law for the justices of the supreme court,
Council. There shall be annually elected, by ballot, five counsellors, for advising the governor in the executive part of the government. The freeholders and other inhabitants in each county, qualified to vote for senators, shall, some time in the month of March, give in their votes for one counsellor; which votes shall be received, sorted, counted, certified, and returned to the secretary's office, in the same manner as the votes for senators, to be by the secretary laid before the senate and house of representatives on the first Wednesday in June.
And the person having a majority of votes in any county shall be considered as duly elected a counsellor: but if no person shall have a majority of votes in any county, the senate and house of representatives shall take the names of the two persons who have the highest number of votes in each county and not elected, and out of those two shall elect, by joint ballot, the counsellor wanted for such county.
Provided, nevertheless, That no person shall be capable of being elected a counsellor 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 an 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.
The secretary, shall, annually, seventeen days before the first Wednesday in June, give notice of the choice of persons elected.
If any person shall be elected governor, or member of either branch of the legislature, and shall not accept the trust; or if any person elected a counsellor shall refuse to accept the office; or in case of the death, resignation, or removal of any counsellor out of the state, the governor may issue a precept for the election of a new counsellor in that county where such vacancy shall happen: and the choice shall be in the same manner as before directed: and the governor shall have full power and authority to convene the council, from time to time, at his discretion; and, with them, or the majority of them, may, and shall, from time to time, hold a council, for ordering and directing the affairs of the state according to the laws of the land.
The members of the council may be impeached by the house, and tried by the senate, for bribery, corruption, malpractice, or maladministration.
The resolutions and advice of the council shall be recorded by the secretary, in a register, and signed by all the members present agreeing thereto; and this record may be called for at any time by either house of the legislature; and any member of the council may enter his opinion contrary to the resolutions of the majority, with the reasons for such opinion.
The legislature may, if the public good shall hereafter require it, divide the state into five districts, as nearly equal as may be, governing themselves by the number of ratable polls, and proportion of public taxes: each district to elect a counsellor; and in case of such division, the manner of the choice shall be conformable to the present mode of election in counties.
And whereas the elections appointed to be made by this constitution, on the first Wednesday of June annually, by the two houses the legislature, may not be completed on that day, the said elections may be adjourned from day to day, until the same may be completed; and the order of the elections shall be as follows: the vacancies in the senate, if any, shall be first filled up; the governor shall then be elected, provided there shall be no choice of him by the people; and afterwards the two houses shall proceed to fill up the vacancy, if any, in the council.
Secretary, Treasurer, Commissary-General, &c. The secretary, treasurer, and commissary general, shall be chosen by joint ballot of the senators and representatives, assembled in one room.
The records of the state shall be kept in the office of the secretary, and he shall attend the governor and council, the senate and representatives, in person, or by deputy, as they may require.
The secretary of the state shall, at all times, have a deputy, to be by him appointed; for whose conduct in office he shall be responsible. And in case of the death, removal, or inability, of the secretary, his deputy shall exercise all the duties of the office of secretary of this state, until another shall be appointed. The secretary, before he enters upon the business of his office, shall give bond, with sufficient sureties, in a reasonable sum, for the use of the state, for the punctual performance of his trust.
County Treasurer, &c. The county treasurers, and registers of deeds, shall be elected by the inhabitants of the several towns in the several
counties in the state, according to the method now practised, and the laws of the state.
Provided, nevertheless, The legislature shall have authority to alter the manner of certifying the votes, and the mode of electing those officers; but not so as to deprive the people of the right they now have of electing them.
And the legislature, on the application of the major part of the inhabitants of any county, shall have authority to divide the same into two districts for registering deeds, if to them it shall appear necessary; each district to elect a register of deeds: and before they enter upon the business of their office, shall be respectively sworn faithfully to discharge the duties thereof, and shall severally give bonds, with sufficient sureties, in a reasonable sum, for the use of the county, for the punctual performance of their respective trusts.
Judiciary Power. 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.
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.
In order that the people may 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.
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.
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.
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 years.