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ernment, together with the patent for the said plantation, be first, by an order of court, legally transferred and established to remain with us and others which shall inhabit upon the said plantation." This agreement was the fruit of much previous consultation among the leaders of the enterprise, and was substantially in accordance with a proposition made by Governor Cradock at a General Court held about a month before, on the 28th of July, that the company should transfer the government of the plantation to those that should inhabit there, and not to continue the same in subordination to the Company in England. Apparently Governor Cradock's proposition did not include a transfer of the patent as well as of the government, and in this respect it fell short of the conditions required by the Cambridge agreement; but when the subject came up at an adjourned meeting of the General Court, on the 29th of August, the question was so put as to cover the whole ground and leave no room for doubt as to the effect of the vote, "As many of you as desire to have the patent and the government of the Plantation to be transferred to New England, so as it may be done legally, hold up your hands; so many as will not, hold up your hands." A great majority voted in favor of the transfer, and the decision is so recorded. "Where, by erection of hands," is the language of the record, "it appeared by the general consent of the company, that the government and patent should be settled in New England, and accordingly an order to be drawn up." A few weeks afterward Winthrop was chosen governor; and at a little later period, Saltonstall, Johnson, Dudley, and all but three of their associates in the Cambridge agreement, were duly chosen to office in the company. Their acceptance of office, after the right and power of the grantees and their associates to make the transfer had been so long under consideration, affords strong evidence that the persons most interested in the question were satisfied the transfer could be made legally and effectually; and if any thing is needed to strengthen this evidence, it is found in the fact mentioned by Judge Parker, that the legality of the transfer was not officially called in question until July, 1679, nearly half a century afterward.
When we turn from the external evidence afforded by the actual transfer of the charter and the silent acquiescence of all parties in its transfer during nearly fifty years, to the evidence which we may draw from the provisions contained in the instrument itself, and also from the omission of certain other provisions, we are at once struck by the fact that the charter nowhere provides that the corporation created by it shall be established at any specified place, or that the powers conferred on the grantees shall be exercised in England. On the other hand, as Judge Parker points out, there are powers granted which it would have been very difficult, if not impossible, for the company to exercise, except within the territorial limits of the colony. For instance, the corporation had the power to admit new members or freemen from time to time, as might be deemed expedient, who, when so admitted, were to enjoy the same right of attending the four General Courts and of voting for the various officers which the original grantees possessed. Now, it will hardly be maintained by any one, that the colonists were to be excluded from all voice in the selection of the officers placed over them, and that the affairs of the colony, which they had crossed the ocean to found, were to be exclusively managed by persons who had no personal interest in it; but if the meetings or General Courts of the company, as they were called, were to be held in England, it would have been clearly impossible for those freemen who resided in Massachusetts to attend them, and such persons would have been as much excluded as if there had been an express proviso that they should not be made freemen of the company. We must either accept this conclusion, or we must maintain that the true intent of the charter was, that the colonists might become members of the corporation, and that its powers should be exercised by them and their associates within the territorial limits granted to the company.
If, on the theory that the powers of the company were to be exercised in England, the difficulty in regard to the provisions respecting the admission of new members is great, it is still greater in respect to the choice or removal of the vari
ous officers, and the administration of official oaths. The charter provided that once a year, at a General Court, to be held in Easter term, the Governor, Deputy-Governor, assistants, and "all other officers of the said company," should be chosen by a majority vote of the freemen "then and there present," and that immediately after such election the power of their predecessors in office should cease and determine; and there is a similar provision in regard to the vacancies created by the death or removal of any officer, express power being given to remove any officer for cause. It was further provided, that, before entering upon the discharge of his official duties, every officer should take oath for the faithful performance of his duties in a certain prescribed manner, the Governor before the Deputy-Governor or two assistants; and the Deputy-Governor, assistants, "and all other officers," before the Governor. The obvious interpretation of these clauses would seem to be, that all these officers were expected to be within easy access of one another, and not that three thousand miles of a stormy ocean should intervene between them. On the supposition that the colony was to be governed by a company established in England, and that only a portion of its officers were to reside in Massachusetts, Judge Parker very justly remarks, that in case of the death of an officer whose duties 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." In view of so absurd and inconvenient an arrangement, we may safely adopt the express words of the charter, and maintain that it is to be "construed, reputed, and adjudged, in all cases, most favorably on the behalf and for the benefit and behoof of the said Governor and company and their successors." A similar remark will apply to the clauses about oaths, in the execution of which there would have been even greater difficulties and absurdities. "If the company remained in England," as Judge Parker remarks, " and the General Courts were held
there, all the officers chosen for the managing and despatching of the business 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 DeputyGovernor or two assistants must first administer the oath to him, before he could go to the plantation; or, if he were there, must go themselves to the plantation to find him and administer the oath there, before he could administer the oaths to others." It would scarcely be possible to conceive of a more awkward and cumbersome arrangement; and we are not justified by a single provision in the charter, in concluding that the persons who made the original draft were so unskilful as not to see that this difficulty must inevitably arise, if the powers which they sought to acquire could only be exercised by a corporation established in England. On the contrary, we are led, of necessity, to conclude that the true construction of the charter authorized its transfer to America, and that its framers anticipated the condition of things which afterward existed, when Winthrop and his associates entered into the agreement at Cambridge.
The powers granted to the company for the government of the plantation were, and were intended to be, ample. They are prefaced by an explicit declaration that" the good and prosperous success of the plantation of the said parts of New England, aforesaid... cannot but chiefly depend, next under the blessing of Almighty God, and the support of our royal authority, upon the good government of the same "; and for this end the grantees were made "one body corporate and politic in fact and in name," with various powers and immunities, very dif ferent from those which would have been necessary or expedient for a mere trading company. Among the powers thus given were an express authority to the grantees and the officers appointed by them "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 of 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," in other words, to wage defensive war, whenever the company and its officers should think proper, and without other authority from the Crown; authority to make "all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions, and instructions, not contrary to the laws of this our realm of England," to establish all necessary forms and ceremonies of government and magistracy, to create such officers as they should deem needful, to order elections, and in general to do all things necessary for the religious, peaceable, and civil government of the inhabitants. The grant of powers so ample as these, which by necessary implication carried with them various inferior powers, furnished a solid basis for the claims of the founders of Massachusetts.
Next in importance to the questions as to the transfer of the charter and to the powers granted by that instrument is the question as to the aims and purposes of the founders of the colony, which forms the subject of Dr. Ellis's first lecture. It has been very commonly said, and even by writers of the highest authority, that the Fathers of Massachusetts came here to establish a refuge for civil and religious freedom; and because they enacted laws and inflicted punishments which tended to abridge what we call "liberty of conscience," they have been accused of gross inconsistency. To this view of their aims Dr. Ellis takes exception, maintaining with signal ability that their purpose was to establish a Bible Commonwealth, in which every man's conduct was to be tried by Bible precedents and laws, and especially by the Mosaic code, so far as it could be made applicable to their situation. To this statement of their aims and purposes there can be no valid objection. The liberty which our ancestors sought to establish here was a liberty regulated by law; and there can