vision in the charter, which embodies a general principle of law now well understood and applied in cases of doubt, to deeds of private persons, that the charter should be construed, reputed, and adjudged in all cases most favorably for the benefit and behoof of the grantees.

If any thing were needed to fortify the foregoing positions, it may be found in the fact, that, in the process and proceedings in the latter part of the reign of Charles II. to enforce a forfeiture of the charter, or to annul it, there was no allegation of a usurpation of power in any of these particulars; nor any alleged grounds of forfeiture founded upon either of them.

The causes of forfeiture, as set forth in the Court of Chancery, were, that the Governor and company assuming on themselves, under color of their letters patent, power to assemble to make good and wholesome laws and ordinances, not repugnant to the laws of England, but respecting only their own private gain and profit, assumed the unlawful and unjust power to levy money of the subjects of the King, and, in prosecution of that power, made laws for levying poll taxes, and duties on merchandise and tonnage; that they had passed a law providing for a mint, and the coining of money; and another, requiring an oath of fidelity to the government of the Colony.1

Undoubtedly, the absence of other allegations of abuse of power under the charter is not conclusive evidence of a belief on the part of the crown lawyers, that there were none others which could be sustained; but there is no good reason why more should not have been enumerated, if it was supposed that others of a grave character existed, and a transfer of the charter and government, or an exclusion of his majesty's roystering subjects from inhabitancy, or any religious legislation whatever, if supposed to be unlawful, would hardly have been omitted.

I have no means at hand to determine with certainty, why this process was instituted in the Court of Chancery, which, ordinarily, has no jurisdiction of proceedings quo warranto, and

1 The power to coin money being, at that time, not an ordinary legislative power, but one of the King's prerogatives, the value of unusual pieces to be ascertained by proclamation, it might well be held that the charter did not confer it. And some of the legislation of the Colony may have been contrary to the navigation acts of the realm. To that extent, the complaints seem to have been well founded; perhaps somewhat further.

relieves against, rather than enforces, forfeitures. In a "Brief Relation of the Plantation of New England,” by an unknown author, written at London, in 1689, it is stated,

"that, in the year 1683, a quo warranto was issued out against them,” that "the Governor and company appointed an attorney to appear and answer to the quo warranto, in the Court of King's Bench. The prosecutors not being able to make any thing of it there, a new suit was begun by a scire facias in the Court of Chancery."1

Chalmers says of the quo warranto, "Randolph's was the ominous hand which carried it across the Atlantic. And to give weight to the messenger who, in Massachusetts, had little in himself, and to the proceeding, which was equally obnoxious, a frigate was ordered to transport him thither." He says further, "After a variety of obstructions, arising from the distance, the novelty, and real difficulty of the business, a judgment was given for the King by the high Court of Chancery in Trinity term, 1684, against the Governor and company in Massachusetts, that their letters patents, and the enrolment thereof, be cancelled."

The validity of the proceedings was afterwards "questioned by very great authority." 2

The reason why the prosecutors could not make any thing of it in the King's Bench may have been that suggested in relation to the former writ, that, as the process of the court did not run into the Colony, there could be no service there. It may have been that the writ did not issue against "the Governor and company." The colonists instructed counsel to take that exception. But if that was the main objection, it might readily have been obviated by the issue of another writ. If so issued, however, it would have been an admission of the existence of the corporation, which was challenged by the allegations of usurpation in the process in 1635.

It may be conjectured that the scire facias was brought in Chancery on the ground, that chancery might annul the charter, though out of its jurisdiction, on the same principle that it now sometimes compels a man within its jurisdiction to give a

2 Annals, vol. i. pp. 414, 415.

1 Mass. Hist. Coll. 3d Series, vol. i. p. 96 3 "The sheriff's" [of Middlesex, England] "principal objection why he did not return a summons was, the notice was given after the return was past. He did also make it a question whether he could take notice of New England, being out of his bailiwick." Letter of Attorney-General Sawyer. See Palfrey's Hist. New England, vol. iii. p. 391, note.

deed transferring a title to lands lying within another government. But the cases are not alike.

No judgment of forfeiture was entered, nor any decree ordering any person to bring in and surrender the charter, or to do any other act in relation to it. The court adjudged, that the letters patent, "and the enrolment thereof, be vacated, cancelled, and annihilated, and into the said court restored, there to be cancelled;" but there was no attempt to enforce the latter part of the decree.

The proceedings may have been instituted in that court, upon the ground of an ancient jurisdiction of the chancellor to repeal grants of the King, which had been issued improvidently. But the assumption to enter a decree, that a charter granting lands, and corporate powers, and powers of government, and which had existed more than half a century, should "be vacated, cancelled, and annihilated," on account of usurpations, which, in case of ordinary corporations, may be a subject for proceedings by writ of quo warranto in the King's Bench, and especially to do this upon a writ issued to the sheriff of Middlesex, in England, under such circumstances that there could be neither service nor notice, would be of itself a usurpation. And this seems to be its true character, whatever might be the reason alleged.

If the colonial government was exercising power inconsistent with the charter, or with colonial dependence, the true remedy would at this day appear to have been, not by process to enforce a forfeiture, or to vacate the charter, which, if effective, would leave the inhabitants without any legal government; but by an enforcement or amendment of the charter, in regard to its public powers and character, by the Crown, from which it was derived, or by an act of Parliament making the requisite provision for that purpose.

The better opinion may be, that meeting with technical dif ficulties in the court of law, resort was had to Chancery, because of a better assurance of speedy success.1

The proceeding appears to have been no more effective in its character, than might have been a judgment of seizure, in a process at law; and, in fact, little better than would have been au order of the King in Council, that the charter was forfeited, with a revocation of its powers. However, the decree an

1 See Palf. Hist., vol. iii. 391–394.

swered its purpose. The colonists were not in a situation to contest it.1

Certain differences between this charter and the charter of the Council established at Plymouth in the county of Devon, have already been considered.

It may be noticed farther, as fortifying the position, that the powers granted in the charter of Charles included a power of exclusion, that the Great Patent to the Council provided, expressly, that the territories granted should not be visited, frequented, or traded unto, by any other of the King's subjects, with a provision prohibiting all the King's subjects from visiting or trading there, unless it be with the license and consent of the Council, upon pain of the King's indignation, and imprisonment of their bodies during his pleasure, with forfeiture besides. And the King condescended and granted, that he would not grant any liberty or license to any person to sail, trade, or traffic there, without the good-will and liking of the Council.

The provisions of the charter of Charles were so comprehensive that there was no necessity for such express exclusions. A comparison of the provisions of the charter, with the subsequent proceedings of the Puritans, relieves them from the charges which have been so persistently urged against them.

It has been said, that "the charter did not include any clause providing for the free exercise of religion, or the rights of conscience." But this is a mistake. It is true that there is not, in express terms, any such provision. It would have been most surprising, if the King had made proclamation of any such liberty, by a formal grant. But the power of legislation, which included the power to legislate on religious matters, was as plenary for that purpose, as an express grant would have been. The "letter from King Charles II. to Massachusetts," in 1662, asserts that "the principle and foundation of that charter was, and is, the freedom of liberty of conscience." 2 And a letter prepared for the royal signature, by the lords of the committee for plantations, in October, 1681, not only recites that the charter granted" such powers and authorities as were thought

1 See the Exemplification of the judgment. Mass. Hist. Coll., 4th Series, vol. ii. p. 246.

2 Hutch. Coll. Papers, vol. i. p. 378.

necessary for the better government of our subjects, at so remote a distance from this our kingdom;" but adds, "nothing was denied, which you then deemed requisite for the full enjoyment of your property, and the liberty of your conscience, so you would always contain yourselves within that duty which the bonds of inseparable allegiance bind you to." 1

They did not come here to establish or provide for any general liberty of conscience. In his very full and complete exposition of this fact, the reverend and learned gentleman with whom I am associated, Dr. Ellis, stated that they placed a restraint the restraint of the Bible upon their own liberty of conscience. This depends upon the signification which we give to the term conscience, which, as you know, is sometimes used to designate the faculty by which we have ideas of right and wrong in reference to actions, without regard to, and perhaps in ignorance of, the precepts of the Bible, occasionally called natural conscience; and it is sometimes used to designate the same faculty, instructed in the Bible, receiving it as the word of God, by which to test right and wrong, incorporating its restraints into, and making them part of itself, — not unfrequently termed an educated or enlightened conscience. In the former signification, which is plainly the sense in which Dr. Ellis uses the word, the Puritans did not seek to establish liberty of conscience even for themselves.

The charter in giving power to make orders, laws, &c., for directing, ruling, and disposing of all other matters and things, by which the inhabitants might be religiously governed, clearly contemplated government in matters of religion; and government in matters of religion, in those days, meant any thing other than liberty for every man to do what his notion of right and wrong dictated in that matter. The grantees meant and under. stood it, as government according to the laws of the Bible. In the other sense of the term, conscience, that is, the faculty of distinguishing between right and wrong, instructed by the Bible, and according to its precepts, as they understood them, liberty of conscience for themselves was precisely what they intended to In other words, their great object was to secure for themselves and those who, with their principles, should associate 1 Chalmers, vol. i. p. 444.

secure.