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In a numerous court, that the Chief-Justice should have a prevalent and gracious authority, as first among equals, to adjust, arrange, and facilitate the coöperative working of its members, will not be doubted. For more than sixty years, at least, this court had felt this authority potens et lenis dominatio in the presence of the two celebrated Chief-Justices who filled out this long service.
This decision left the four towns subject to none but the king, who forthwith in 1679 proceeded to erect them into the royal province of New Hampshire, with president and council appointed by the crown, and an assembly chosen by the people, but endowed with little authority, a tricksome counterfeit of popular government. To the decisions of the chief-justices Massachusetts must needs submit.
The great case of monopolies, reported in full in the seventh volume of the State Trials, is a perfect mine of information on this subject, having been argued many months at great length by the greatest lawyers, three of whom later were chief-justices of England. Its charter dated from the early years of Charles II and the 43d Elizabeth.
* Flanders, "The Lives and Times of the Chief-Justices of the Supreme Court," vol. II, p. 38. The pioneer work of the Supreme Court in constitutional interpretation has, for all but special students, fallen into something like obscurity owing to the luster of Marshall's achievements and to his habit of deciding cases without much reference to precedent.
His associates, six in number, were chiefly Boston men, possessing a high reputation for wisdom and piety, among them Richards, the late agent, Wait Winthrop, brother of Fitz-John Winthrop, and grandson of the former Governor, and Samuel Sewell, the two latter subsequently, in turn, chief-justices of the province.
Archbishop Whitgift called Darrel and More before the court of high commission, where the Bishop of London, two of the Lord Chief-Justices, the master of requests, and other eminent officials heard the case. It seems fairly certain that Bancroft, the Bishop of London, really took control of this examination and that he acted quite as much the part of a prosecutor as that of a judge.
Since 1643 the four Piscataqua towns Hampton, Exeter, Dover, and Portsmouth had remained under the jurisdiction of Massachusetts. After the Restoration the Mason claim had been revived, and in 1677 was referred to the chief-justices North and Rainsford. Their decision was that Mason's claim had always been worthless as based on a grant in which the old Plymouth Company had exceeded its powers.
In 1677 the chief-justices decided that the claim of the Gorges family, being based on a grant from James I., was valid. Then the young Ferdinando Gorges, grandson of the first proprietor, offered to sell the province to the king, who had now taken it into his head that he would like to bestow it upon the Duke of Monmouth, his favourite son by Lucy Walters.
There they sat, those supreme judges, the three Chief-Justices in their scarlet robes of office forming the centre of the group, which also numbered Lords Cobham and Buckhurst, Sir Francis Knollys, Sir Christopher Hatton, and most of the chief law officers of the Crown. "Is Mr. Secretary Walsingham one of the judges here?" asked Diccon. "Methought he had been in the place of the accuser."
Washington and Madison became Presidents of the United States; Elbridge Gerry became Vice-President; Charles Cotesworth Pinckney and Rufus King became candidates for the Presidency, and Jared Ingersoll, Rufus King, and John Langdon candidates for the Vice-Presidency; Hamilton became Secretary of the Treasury; Madison, Secretary of State; Randolph, Attorney-General and Secretary of State, and James McHenry, a Secretary of War; Ellsworth and Rutledge became Chief-Justices; Wilson and John Blair rose to the Supreme bench; Gouverneur Morris, and Ellsworth, and Charles C. Pinckney, and Gerry, and William Davie became Ministers abroad."
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