the said counsellors, or five of them at least, shall and may, from time to time, hold and keep a council for the ordering and directing the affairs of the commonwealth according to law.1

[VI.] The governor, with 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 the said court; and during the session of the said court, to adjourn or prorogue it to any time the two houses shall desire, and to dissolve the same, at their request, or on the Wednesday next preceding the last Wednesday in May; and to call it together sooner than the time to which it may be adjourned or prorogued, if the welfare of the commonwealth shall require the same.2

VI. [VII.] In cases of disagreement between the two houses, with regard to the 3 time of adjournment or prorogation, the governor, with advice of the council, shall have a right to adjourn or prorogue the general court, 4 as he shall determine the public good shall require.

VII. [VIII.] The governor of this commonwealth, for the time being, shall be the commander-in-chief of the army and navy, and of all the military forces of the state by sea and land; and shall have full power, by himself or by any [chief] commander, or other officer or officers, [to be appointed by him,] from time to time to train, instruct, exercise, and govern the militia and navy; and for the special defence and safety of the commonwealth, to assemble in martial array and put in warlike posture, the inhabitants thereof; and to lead and conduct them, and with them to encounter, [expulse,] repel, resist,

pursue, by force of arms, as well by sea as by land, within or without the limits of this commonwealth, and also to kill, slay, destroy, 1 and conquer, by all fitting ways, enterprises, and means whatsoever, 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 commonwealth; 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, or rebellion, 2 as occasion shall necessarily require; [and also from time to time to erect forts, and to fortify any place or places within the said commonwealth, and the same to furnish with all necessary ammunition, provisions, and stores of war, for offence or defence, and to commit from time to time the custody and government of the same to such person or persons as to him shall seem meet; and in times of emergency the said forts and fortifications to demolish at his discretion; and to take 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 commonwealth, and [in fine] that the governor be intrusted with all 3 other powers, incident to the offices of captain-general and commanderin-chief and admiral, to be exercised agreeably to the rules and regulations of the constitution and the laws of the land

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Provided, that the said 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 commonwealth, 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, 5 [nor grant commissions for exercising the law martial upon any of the inhabitants of this commonwealth, without the advice and consent of the council of the same.]

VIII. [IX.] The power of pardoning offences, except such

as persons may be convicted of before the senate by an impeachment of the house, shall be in the governor, by and with the advice of council. But no charter of pardon granted by the governor, with advice of the 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.

IX. [X.] All judicial officers, the attorney-general, the solicitor-general, all sheriffs, coroners, registers of probate, [and registers of maritime courts,] shall be nominated and appointed by the governor, by and with the advice and consent of the council; and every such nomination shall be made by the governor, and made at least seven days prior to such appointment.

[XI.] [All officers of the militia shall be appointed by the governor, with the advice and consent of the council; he first nominating them seven days at least before the appointment.]1

1 The convention, in adopting the following substitute, made what, in the opinion of Mr. Adams, was the second material alteration of the executive power:

"X. The captains and subalterns of the militia shall be elected by the written votes of the train-band and alarm list of their respective companies, of twentyone years of age and upwards. The field-officers of regiments shall be elected by the written votes of the captains and subalterns of their respective regiments. The brigadiers shall be elected, in like manner, by the field-officers of their respective brigades. And such officers, so elected, shall be commissioned by the governor, who shall determine their rank.

"The legislature shall, by standing laws, direct the time and manner of convening the electors, and of collecting votes, and of certifying to the governor the officers elected.

"The major-generals shall be appointed by the senate and house of representatives, each having a negative upon the other; and be commissioned by the governor.

"And if the electors of brigadiers, field-officers, captains, or subalterns shall neglect or refuse to make such elections, after being duly notified, according to the laws for the time being, then the governor, with advice of council, shall appoint suitable persons to fill such offices.

"And 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 commonwealth for the time being.

"The commanding officers of regiments shall appoint their adjutants and quarter-masters; the brigadiers their brigade-majors; and the major-generals their aids; and the governor shall appoint the adjutant-general.

"The governor, with advice of council, shall appoint all officers of the continental army, whom, by the confederation of the United States, it is provided that this commonwealth shall appoint; as, also, all officers of forts and garrisons.

"The divisions of the militia into brigades, regiments, and companies, made in pursuance of the militia laws now in force, shall be considered as the proper

x65 XI. [XII.] All1 moneys shall be issued out of the treasury of this commonwealth, and disposed of 2 by warrant, under the hand of the governor for the time being, with the advice and consent of the council, for the necessary defence and support of the commonwealth; and for the protection and preservation of the inhabitants thereof, agreeably to the acts and resolves of the general court.

XII. [XIII.] All public boards, the commissary-general, all superintending officers of public magazines and stores, belonging to this commonwealth, 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 whatever under their care respectively; distinguishing the quantity, number, quality, and kind of each, as particularly as may be; together with the condition of such forts and garrisons. And the said commanding officers shall exhibit to the governor, when required by him, true and exact plans of such forts, and of the land and sea, or harbor or harbors, adjacent.

And the said boards, and all public officers, shall communicate to the governor, as soon as may be after receiving the same, all letters, despatches, and intelligences, of a public nature, which shall be directed to them respectively.

[XIV. And to prevent an undue influence in this commonwealth, which the first magistrate thereof may acquire, by the

divisions of the militia of this commonwealth, until the same shall be altered in pursuance of some future law."

The convention of 1820 once more revised this section by adopting the following article, which was ratified by the people:

"Article 5. In the elections of captains and subalterns of the militia, all the members of their respective companies, as well those under as those above the age of twenty-one years, shall have a right to vote."

And, with regard to removals, at the close of the fourth article of amend

ments:

"All officers commissioned to command in the militia, may be removed from office in such manner as the legislature may, by law, prescribe."

long possession of the important powers and trusts of that office; as also to stimulate others to qualify themselves for the service of the public in the highest stations, no man shall be eligible as governor of this commonwealth, more than five years in any seven years.] 1

XIII. [XV.] As the public good requires that the governor should not be under the undue influence of any of the members of the general court, by a dependence on them for his support; that he should, in all cases, act with freedom for the benefit of the public; that he should not have his attention necessarily diverted from that object to his private concerns; and that he should maintain the dignity of the commonwealth, in the character of its chief magistrate, it is necessary that he should have an honorable stated salary, of a fixed and permanent value, amply sufficient for those purposes, and established by standing laws; and it shall be among the first acts of the general court, after the commencement of this constitution, to establish such salary by law accordingly.

Permanent and honorable salaries shall also be established by law for the justices of the superior court.

And if it shall be found that any of the salaries aforesaid, so established, are insufficient, they shall from time to time be enlarged, as the general court shall judge proper.

SECTION II.

Lieutenant-Governor, [and the ascertaining the Value of the Money mentioned in

this Constitution, as Qualifications to Office, &c.]

I. THERE shall be annually elected a lieutenant-governor of the Commonwealth of Massachusetts, whose title shall be HIS HONOR, and who shall be qualified, in point of religion, pro

1 This provision, establishing a principle of rotation in office, was stricken out by the convention. The practice under the constitution shows that, without any express limitation, but a single case has occurred exceeding seven years, as the longest period that any individual remains governor.

The transfer to the general government of the most important attributes of executive power, has materially lessened the consequence of this post as an object of ambition. But in analyzing the theory upon which this plan is based, it is obvious that this section was incorporated for the purpose of counterbalancing the effect of the gift in other sections of such extensive powers as might make the chief magistrate's place the object of great contention. The convention preferred to take away the powers, on the one hand, and withdraw the limitation, on the other.

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