4.

1

crown bases

upon voyages of the

should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession." The principle thus established assumed that the Indian tribes found upon the soil were mere temporary occupants. According to the theory of the English constitution the title to all newly-discovered lands accrued to the king in his public and regal character, and the exclusive right to grant them resided in him as a part of the royal prerogative: "upon these principles rest the various charters and grants of territory made on this continent."2 The claim of English the English crown to the territory upon which the English its claim settlements in America were made was based upon the voyages of the Cabots made along the American coast during Cabots. the years 1497-98.3 The first patent issued to the Cabotsthe oldest surviving document connecting the old land with the new gave to the patentees the right to sail under the royal ensign, and to set up the royal banner in any newly discovered land as lieutenants and vassals of the king. The inchoate right thus acquired by discovery at the close of the fifteenth century did not ripen into a perfect title until early in the seventeenth, when the permanent English settlements in America were made. The great title-deed under which The great the English settlers in America took actual and permanent James I.'s possession of the greater part of the Atlantic seaboard is charter of April 10, represented by a charter granted by James I. on the 10th 1606. April, 1606, to certain patentees, wherein he created two distinct corporations; and then, in the same document, granted to the one known as the London Company the section of North American seacoast lying between 34° and 38° N. lat.; and to the other known as the Plymouth Company the section lying between 41° and 45°- each grant having an indefinite western extension. The intervening expanse, lying between 38° and 41°, was placed as a march or border

1 Marshall, C. J., in Johnson v. McIntosh, 8 Wheat. p. 573.

2 Taney, C. J., in Martin et al. v. The Lessee of Waddell, 16 Peters, p. 409. 8 See Nar. and Crit. Hist. Am., vol. iii. pp. 1-58.

4 This document, which is dated March, 1495 (1496 new style), is printed in the Hakluyt Society's edition of the Divers Voyages, and in Rymer's Fœ dera.

title-deed

The London Com

pany and its work.

The Plym

outh Company and its

work.

land between the domains of the two companies, and its
common use was made subject to the limitation that neither
should plant a colony within a hundred miles of one pre-
viously made by the other.1 Although the two corporations
thus intrusted with the mighty work of English colonization
in the New World - a work which in the hands of private
adventurers had been so singularly unfortunate - were short
lived, the fact remains that during the brief period of their
existence they not only established representative government
upon American soil, but they also brought about the founding
of two typical settlements which have moulded the whole
after course of American history. Under the auspices of the
London or Southern Company was founded in 1607 the Vir-
ginian settlement at Jamestown - the first permanent settle-
ment made by Englishmen upon the soil of the New World.
Twelve years later (1619) the management of the London
Company passed into the hands of liberal-minded men at home
who gave to the infant colony the right to convene the first
American representative assembly.2 Five years later (1624)
the charter of this company, which had thus made its impress
upon all time, was brutally revoked through a legal judgment,
which was
Ione of the earliest of those efforts in which the
Stuart reigns were so fruitful, efforts to wrest the process
of law to the arbitrary purposes of the crown." Out of the
vast territory originally granted to the London Company
were carved the domains finally distributed between the five
southern colonies of Virginia, Maryland, North Carolina,
South Carolina, and Georgia. Under a license obtained
from the Plymouth or North Virginia Company a Puritan
settlement was established in 1620 at Plymouth, in the south-
eastern part of what is now the State of Massachusetts, by a

band of separatists from the English Church, who had for a time dwelt in Holland, prior to their final departure from the mother country to their New England home. North of the Plymouth settlement was established at a little later day another, by men of the same general creed, but of a broader culture, which, in March, 1629, was incorporated by royal charter under the name of the Governor and Company of Massachusetts Bay in New England - a charter which was obtained in order to put at rest any difficulty as to the title of the colony originally derived from a grant made to it by the Council of New England.1 After establishing the colony of Massachusetts Bay, into which the Plymouth settlement was finally incorporated,2 the North Virginia Company in June, 1635, surrendered its charter to the crown, and out of the territory which had been granted it were carved the domains finally distributed between the four northern colonies of Massachusetts, Connecticut, Rhode Island, and New Hampshire. Out of the march or border land, fixed between the territories of the London and Plymouth Companies by the original grant of 1606, were carved the domains of New York, New Jersey, and Pennsylvania, from the last of which was clipped the State of Delaware. In this wise the heart of North America, which passed to the English crown by right of discovery, was granted, as any royal manor might have been granted, first, to the two trading companies created by the charter of 1606, and, after their dissolution, to the thirteen colonies which united in the making of the Declaration of Independence.1

granted to

The soil upon which the English colonies in America were The soil planted was granted to them as terra regis by the English the colonies crown; it was not granted to them as folkland by the English on and parliament. The charters under which the colonial govern- not by the

by the crown

parliament.

Colonies

mere cor

porations

with char

ters irrevo

cable as to

the crown.

The royal colonies

Virginia.

ments were organized were likewise royal grants; they were
not concessions from the English legislature. In contempla-
tion of English law the whole group of colonial governments
in America created or confirmed by royal charters were mere
corporations created by the king, and subject like all others.
of their kind to his visitorial power, and to the power of his
courts to dissolve them in
proper case presented for that
purpose.1 Until some cause of forfeiture arose, the grant,
as between the crown and the patentees, was irrevocable, it
being the settled doctrine of English law that after a grant
of corporate powers made by the crown had been once ac-
cepted, the crown could not resume the grant without the con-
sent of those in whom its privileges had been vested.2 The
irrevocable rights thus acquired by the colonists as against
the crown were revocable, however, at the hands of the
parliament. Under the theory of the English constitution,
then as now, "Its power is legally speaking illimitable. It
may create, and abolish, and change, at its pleasure, with or
without the assent of the people or corporation to be thereby
affected." A practical illustration of the exercise of this
parliamentary power may be found in the famous Municipal
Corporations Reform Act of 5 and 6 Will. IV., by which the
whole English municipal system was reorganized and reëstab-
lished. Subject to this illimitable power of the Imperial
parliament the English crown organized upon the soil of the
New World a group of colonial governments, whose differences
of internal organization, and whose greater or less dependence
upon the crown, distinguished them broadly from each other.*
Those colonies to which the crown gave most sparingly the
right to regulate their own affairs are generally known as
royal colonies, a typical representative of which may be
found in the Colony of Virginia, whose early constitutional
growth happily illustrates the general process of evolution
through which the most dependent of the English settlements
in America was rapidly transformed from a servile corporation

3

1 The charter of Massachusetts was cancelled in 1684 by the crown judges in a proceeding begun by scire facias (Palfrey's New Eng., vol. iii. pp. 391393); that of Virginia, by a legal judgment rendered in 1624.

2 Cf. Dillon, Municipal Corporations, vol. i. p. 109, 2d ed., and cases cited. 8 Ibid., p. 110.

4 See Fiske's classification of the colonial governments, The Critical Period, etc., p. 65.

power of

into a self-governing state organized upon the model of the English kingdom. The government of the London Company, whose charter granted by James I. in 1606 contained the germs of the Virginian constitution, was vested in a resident council of thirteen appointed by the crown who were authorized to choose their own president, and to govern "according to such laws, ordinances, and instructions, as shall be in that behalf given" by the king. This resident council was subject to the control of a superior council in England, which was also subject to the ultimate ordaining power of the king in Ordaining council. In the spring of 1609 this complex system of royal the king in government was relaxed in favor of local control through a council. reorganization of the company whereby the non-resident council was abolished and the government of the colony vested in a single resident council nominated by the king in the first instance, but vacancies in which were afterwards to be filled by a vote of the whole company. Under this council,— which was authorized to choose a governor, and "to make, ordain, and establish all manner of orders, laws, directions, instructions, forms and ceremonies of government, and magistracy fit and necessary for and concerning the government of the said colony," "-the Virginian settlement became almost an independent and self-governing community. In 1612 still further concessions were obtained in favor of the company; and in 1619, under its instructions, the governor summoned First Ameran assembly of burgesses from the several hundreds, counties, sentative and plantations embraced within its limits, which met on the assembly, 1619. 30th of July. The history of the Virginian settlement down to this point clearly illustrates how rapidly even a royal colony slipped from the actual grasp of the crown, and how in its internal organization it involuntarily reproduced the outlines of the ancient constitution. As the basis of its local organization we find the hundred and the shire; in the colo

1 As to the distinction between the ordaining power of the king in council and the law-making power of the king in parliament, see below, book iii. ch. i. § 10.

2 Language of the second charter, see Charters and Constitutions, part ii. p. 1899.

3 On that day "the first representa

tive legislative assembly ever held in
America was convened in the chancel
of the church at James City or James-
town, and was composed of twenty-two
burgesses from the eleven several
towns, plantations, and hundreds,
styled boroughs." - Nar. and Crit.
Hist., vol. iii. p. 143.

ican repre