the grant of James I., and which could grant the lands, but could not grant nor assign powers of government), with a new grant, in form, of the same lands, gave to the grantees a title in socage; substantially a fee-simple, except that there was to be a rendition of one-fifth of the gold and silver ores. The grant of corporate powers, in the usual form of grants to private corporations, conferred upon them all the ordinary rights of a private corporation, under which they could dispose of their lands, and transact all business in which the company had a private interest. And the grant of any powers of colonial government, embraced in the charter, was valid and effective to the extent of the powers which were granted, whatever those powers might be; the whole, as against the corporation, being subject to forfeiture for sufficient cause.

The grant and confirmation of the lands, and the grant of mere corporate powers for private purposes, were private rights, which vested in the grantees; and which the King could not divest, except upon some forfeiture regularly enforced. Upon such forfeiture, the corporation would be dissolved, and all of the lands belonging to it would revert, in the nature of an escheat. But this would not affect valid grants previously made by it.

The grant of power to institute a colonial government, being a grant not for private but for public purposes, may have a different consideration. Whether by reason of its connection with the grant of the lands and of ordinary corporate powers, it partook so far of the nature of a private right, that it could not be altered, modified, or revoked, except on forfeiture, enforced by process; or whether this part of the grant had such a public character, that the powers of government were held subject to alteration and amendment;—is hardly open to discussion. At the present day it is held, that municipal corporations, being for public uses and purposes, have no vested private rights in the powers and privileges granted to them, but that they may be changed at the pleasure of the government. That principle seems to be equally applicable to a grant of colonial powers of government; and the better opinion would seem to be, that it was within the legitimate prerogative of the King, at that day, to modify, and even to revoke, the powers of that character which

had been granted by the Crown, substituting others appropriate for the purpose.1

If the King had assumed to revoke the powers of government granted by the charter, without substitution, or if he had imposed any other form of government, by which the essential features of that which was constituted under the charter would have been abrogated, it might have been an arbitrary exercise of power, justifying any revolutionary resistance which the Colony could have made. But the Crown, under the then existing laws of England, must have possessed legally such power over the Colony as the legislature may exercise over municipal corporations at the present day. The charter, so far as the powers of government were concerned, could not be treated as a private contract.

The charter was originally the only authority for the government of the territory embraced in it. The Council at Plymouth, in the county of Devon, never attempted to exercise powers of government over the Colony of Massachusetts; and there was no compact or agreement to form a government. The grantees professed, in all they did, to act under the charter, and, as they contended, according to the charter.

We are to look to the terms of the charter, therefore, and to a sound construction of its provisions, to ascertain what rights of legislation, religious or otherwise, were possessed by the gran.

tees.

The charter bears date March 4, 1628 [29].

From a careful examination of it, I have no hesitation in maintaining five propositions in relation to it.

1. The charter is not, and was not, intended to be an act for the incorporation of a trading or merchants' company merely. But it was a grant which contemplated the settlement of a Colony, with power in the incorporated company to govern that

1 If this distinction between public and private corporations, well settled at the present time, was not then recognized, it is not because there has been a change of principle since that period; but because the principles which govern these two descriptions of corporate rights were not then well developed; and hence the claim of the Crown to power over both public and private rights, and the claims of the colonists under their charter, without any distinction between the two. When a right application is made of this principle to the colonial history, it will show that the complaints of the colonists of infringement of their charters were not all well founded.

Colony. This is shown from its whole structure, in the provisions relating to government, which I shall specify particularly under the other propositions, and moreover in the power given — "to the Governor and Company, and their successors," "that it shall and may be lawful to and for the chief commanders, governors, and officers of the said company for the time being who shall be residents in the said part of New England in America by these presents granted, and others there inhabiting, by their appointment and direction, from time to time, and at all times hereafter, for their special defence and safety; to encounter, expulse, repel, and resist, by force of arms and by all fitting ways and means whatsoever, all such person and persons, as shall at any time hereafter attempt or enterprise the destruction, detriment, or annoyance to the said plantation or inhabitants, and to take and surprise by all ways. and means whatsoever, all and every such person or persons with their ships, armor, munition, and other goods, as shall in hostile manner invade, or attempt the defeating of the said plantation, or the hurt of the said company and inhabitants."

Here is a complete grant of the power to make defensive war, without any order from, or recourse to, the Crown; and, of course, according to the judgment of the company and its officers.

2. The charter authorized the establishment of the government of the Colony within the limits of the territory to be governed, as was done by the vote to transfer the charter and government.

I am aware that Mr. Justice Story, in his Commentaries on the Constitution, says, " It is observable that the whole structure of the charter presupposes the residence of the company in England, and the transaction of all its business there."1 But that position cannot be maintained. I venture to say, that there is no provision in the charter, which either expressly, or by implication, presupposes such residence. On the contrary, if it cannot be asserted that the whole scope of the charter comtemplates the establishment of the government within the Colony, it will be found that it contains provisions which it would have been next to impossible to execute, except by a transfer of the charter and government to the place to be governed.

1 1 Story's Com. on the Const. § 64.

The charter provides that there shall, or may be, four general assemblies, which shall be styled and called the four great and General Courts of the company, in which, in the manner there provided, the Governor, or deputy, and such of the assistants and freemen of the company, as shall be present, "shall have full power and authority to choose, nominate, and appoint such, and so many others, as they shall think fit, and that shall be willing to accept the same, to be free of the said company and body, and them into the same to admit; and to elect and constitute such officers as they shall think fit and requisite, for the ordering, managing, and despatching of the affairs of the company."

Is it possible to believe that none of the emigrants, the very men most interested in the administration of the affairs of the company, were to be admitted as freemen, so as to have a voice? It would seem much more probable that it should have been intended they should form a majority. But how were they to attend the four General Courts, if these were held in England?

The clauses in relation to the election and removal of officers, and to the administration of the oaths of office, are still more significant.

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Yearly, once in the year," namely, the last Wednesday in Easter term, the Governor, deputy governor, and assistants, and all other officers of the company, were to be "newly chosen for the year ensuing,” in the General Court, or assembly, to be held for that day and time, by the greater part of the company, for the time being, then and there present. And in case the Governor, deputy governor, any of the assistants, or any other of the officers to be appointed for the company, should die, or be removed (power being given to the company to remove for any misdemeanor or defect), it was made lawful for the company, in any of their assemblies, to proceed to a new election in the place of the officer so dying or removed; " and immediately upon and after such election," the authority, office, and power, before given to the officer removed, were to cease and determine.

By another provision of the charter, the Governor, deputy governor, assistants, and all other officers to be appointed and chosen, were required before they undertook the execution of their respective offices, to take an oath for the faithful perform

ance of their duties. The Governor was to take the oath of office before the deputy governor, or two of the assistants; and the deputy governor, and assistants, and all other officers chosen from time to time, were to take their oaths before the Governor of the company.

It is readily seen that these provisions of the charter could be conveniently executed, if the company was within the Colony, and the government administered there. And a very slight

examination shows how nearly impossible it would be to execute them, if the Colony was to be governed by a company in England. In the case of the death of the incumbent of an office, the duties of which were to be performed in the Colony, it would take a month for the intelligence of the decease to reach the company in England, and at least a month or six weeks more, ordinarily a much longer time, for a notice of the new election to reach the Colony; during which time, there would be no regular officer to perform the duties.

Is it answered that provision could be made by law, that in such case the duties should be performed by some other officer? That will not apply to the case of a removal, as it could not be known that the officer was removed, until a month or six weeks after the removal was made, and yet the office would be vacated at the time of the removal by the company in England; the officer performing acts supposed to be official, but which would be void.

The provision in relation to the oaths of office would be more nearly impracticable. All the officers, as we have seen, whether newly elected at an annual election, or to fill vacancies occasioned by death or removal, were to take the oath of office before they could execute the duties of the office; so that if the company remained in England, and the General Courts were held there, all the officers chosen for the managing and despatching of the affairs of the company, who resided in the plantation, and most of them must be there, would have to go to England to take their oaths of office, before they could execute their offices; or, the Governor would be obliged to be in the plantation to administer the oaths there, after notice who were elected; and after each annual election, the deputy governor, or two assistants, must first administer the oath to him, before he could go to the