taken against them, and will move his Majesty to reassume into his hands the whole plantation." "1 The General Court replied, that they were much grieved that their Lordships should call in the patent, there being no cause known to them, and no delinquency or fault of theirs expressed in the order; asking to know what was laid to their charge, and to have time to answer; assuring their Lordships that they were never called to answer the quo warranto; and if they had been, they doubted not that they should have put in a sufficient plea; and representing that, if the patent should be taken from them, they should be looked on as "runnigadoes" and outlaws, enforced to remove to some other place, or to return to their native country, either of which would put them to unsupportable extremities; and that (among other evils enumerated) the common people would conceive, that his Majesty had cast them off, and that they were freed from their allegiance, and thereupon would "be ready to confederate themselves under a new government, for their necessary safety and subsistence, which will be of dangerous example to other plantations, and perilous to ourselves of incurring his Majesty's displeasure.' These repeated calls for the patent were in fact demands for its surrender, and they so understood. Hutchinson says, "It was never known what reception this answer met with. It is certain that no further demand was made."3 But he is mistaken. It appears from Winthrop's History, vol. i. p. 298, that in 1639 the precise date is not given "The Governor received letters from Mr. Cradock, and in them another order from the Lords Commissioners, to this effect; that, whereas they had received our petition upon their former order, &c., by which they perceived, that we were taken with some jealousies and fears of their intentions, &c., they did accept of our answer, and did now declare their 1 Hutch. Coll. Papers, vol. i. p. 105. Hutchinson appends to a copy of the order this note: "Whether the intent of this order was, that the patent should be sent over, that the government of the colony might be under a corporation in England according to the true intent of the patent, or whether it was that the patent might be surrendered, is uncertain." But the quo warranto might have solved that doubt. 2 Hutch. Hist. App., vol. i. p. 507; Winthrop, vol. i. p. 269. 3 Hutch. Hist., vol. i. p. 88. intentions to be only to regulate all plantations to be subordinate to their said Commission; and that they meant to continue our liberties, &c.; and therefore did now again peremptorily require the Governor to send them our patent by the first ship; and that, in the mean time, they did give us, by that order, full power to go on in the government of the people, until we had a new patent sent us; and withal they added threats of further course to be taken with us, if we failed!" The next paragraph of the History is a curiosity, and I cannot resist the temptation to copy it in full. It shows why Hutchinson never heard of the reception, and the further demand: "This order being imparted to the next General Court, some advised to return answer to it. Others thought fitter to make no answer at all; because, being sent in a private letter, and not delivered by a certain messenger, as the former order was, they could not proceed upon it, because they could not have any proof that it was delivered to the Governor; and order was taken, that Mr. Cradock's agent, who delivered the letter to the Governor, &c., should, in his letters to his master, make no mention of the letters he delivered to the Governor, seeing that his master had not laid any charge upon him to that end.” The Lords Commissioners frankly admit their object, in this last order. They intended to bring all the plantations into subjection under their commission. The charter stood in their way. They called for it, and it did not come. Process to enforce a forfeiture of it had failed. There was a very good reason for this thrice-repeated demand by the Commissioners. Their commission purported to give it to them, with authority to revoke it, if, upon view of it, they found any thing hurtful to the King, his crown, or prerogative royal. The possession of it was thus made necessary to a revocation by the Commissioners. A view of a copy was not sufficient. No reason is apparent why this might not have been made otherwise. Perhaps it would have been, if there had been apprehension of difficulty in obtaining possession. But so it stood. Therefore the repeated attempts to obtain a surrender, with the threats if it was not forthcoming. It was important to exhibit a semblance of a legal revocation. There were too many complaints of the exercise of arbitrary power in England, to render it expedient to add others in relation to the colonies. We have seen how the General Court disposed of the last demand; and the King and Laud soon found other matters to occupy their attention. Now in all these proceedings, the character of which I have stated in detail, I find no trace of an allegation, that "the true intent of the patent" was, that the government of the Colony should be under a corporation in England; and I submit, that the omission of such an allegation was a moral impossibility, if it had been so understood, especially as the transfer of the charter caused the main obstacle to the efforts of the Commis sioners to revoke it. The first appearance of an official objection which I have found, against the transfer, was in July, 1679, in the course of the difficulties in which Randolph was so conspicuous; "when," as Chalmers says, "the King wrote to the General Court, and required that other agents should be sent over, properly instructed; giving as a reason, which struck at the foundation of its power, that, since the charter by its frame was originally to have been executed within the kingdom, otherwise than by deputy, it is not possible to establish perfect settlement till those things are better understood." This objection is among the articles of high crimes and misdemeanors presented by Randolph to the Committee of the Council, in 1682.2 But it finds no place in the process in Chancery, in 1684, in which a decree was entered, that the charter be vacated, and cancelled.3 Chalmers, in another place, states, that the Attorney-General, Sawyer, gave it as his official opinion, "that the patent having created the grantees and their assigns a body corporate, they might transfer their charter and act in New England." The reason thus stated, is certainly not satisfactory. Chalmers adds, that "the two Chief Justices, Rainsford and North, fell into a similar mistake, by supposing that the corporate powers were to have been originally executed in New England,” 4 an opinion which I have endeavored to sustain, by the terms of the charter, before I was aware of the high authority by which it was supported. Usage is permitted to give a construction to an ancient charter or deed, where there is an ambiguity. Here was a use of the powers of government under the charter, holding 2 Ib., p. 462. General Courts, and transacting all the business of the corporation within the Colony, which, if unlawful, rendered all the acts done under it during the time legally invalid,-with no objection on the part of the Crown in that particular, although other objections were made that the corporation had transcended its powers. If this is not strictly a "usage" within the general rule, it is a contemporaneous construction by all parties, which is as strong, and even stronger, evidence than usage, to give the true interpretation of an instrument. When we add to this the fact, that in two processes to enforce the forfeiture of the charter, there is an entire omission of any allegation that wrong had been done in this respect, the evidence is sufficient to overcome any, even a very grave, ambiguity. But the fact, that there is here no ambiguity, explains the absence of all objections. I am referred to "A copy of the docquet of the grant to Sir Henry Rosewell and others, taken out of the Privy-seal-office, at Whitehall," authorizing the draft of the charter; to show that it was the intention of the Crown or Council that the corporation should have its residence in England. It runs thus: "A grant and confirmation unto Sir Henry Rosewell, his partners, and their associates, to their heirs and assigns for ever, of a part of America, called New-England, granted unto him by a charter from divers noblemen and others, to whom the same was granted by the late king James, with a tenure in socage, and reservation of one-third part of the gold and silver ore: Incorporating them by the name of the governor and company of the Massachusetts-Bay, in New-England, in America, with such other privileges, for electing governors and officers here in England for the said company; with such other privileges and immunities as were originally granted to the said noblemen and others, and are usually allowed to corporations here in England. His majesty's pleasure, signified by Sir Ralph Freemen, upon direction of the lord-keeper of the great-seal; subscribed by Mr. Attorney-general; procured by the lord viscount Dorchester; February, 1628. Memorandum. Their charter passed 4th March following."1 I will admit that this is explicit enough to show that there was an intention when that minute was made, that the corporation should have a local habitation in England. But I remark first, that by the plainest rules of evidence, this memorandum of the proceedings of the Council, prior to the 1 Chalmers's Annals, vol. i. p. 147. grant of the charter, cannot be admitted as evidence to control or vary the provisions of this instrument, as actually drawn up, formally executed, with the great seal annexed, and made matter of record; or to show the intention at the time of the final execution. In the absence of all ambiguity, the intention is to be derived only from the instrument itself. My next remark is, that this "docquet," taken in connection with the charter itself, and other admitted facts, furnishes most plenary proof that the intention thus appearing, was in fact changed when the charter was afterwards drawn and authenticated. There would be no need of another "docquet" to show this, as the charter itself would and did show it. The palpable difference between the terms of this memorandum and the charter itself, in the omission of an express provision in the charter assigning a residence in England to the corporation, can be accounted for only on a change of intention upon that point. It was not a matter which could have slipped out accidentally, and the omission have escaped the scrutiny to which the charter must have been subjected after it was prepared, and before it passed the great seal. Further, the docquet shows an intention at that time, to grant such other privileges and immunities as were originally granted to the said noblemen and others (the Council at Plymouth), and are usually allowed to corporations in England. Here again, the great difference between the charter itself, and the intention shown by the minutes, is palpable evidence of a change of intention in this respect, also. It is sufficient to specify the difference in two or three particulars. The Council consisted of forty members, each of whom were to be presented to the Lord Chancellor, or the Lord High Treasurer, or the Lord Chamberlain of the Household, to take his oath. Power was given to the President, deputy, or any two councillors, to administer the oaths of allegiance and supremacy to all persons who should go to the Colony of New England; and it was made lawful for them to minister oaths as well to persons employed by them, for the faithful performance of their service, as to other persons, for the clearing of the truth; but there was no clause requiring officers other than those who were councillors to take any oath of office; and their laws, as we |