nial governor we have a reflected image of the kingship; in the royal council- the house of lords; in the house of English law burgesses- the house of commons. The foundation of the the basis of whole fabric was English law; in the original charter it was the whole fabric. The charter colonies chusetts. provided "that all and every the persons, being our subjects which shall go and inhabit within the said colony and plantation, and every their children and posterity, which shall happen to be born within any of the limits thereof, shall have and enjoy all liberties, franchises, and immunities of free denizens and natural subjects within any of our other dominions, to all intents and purposes as if they had been abiding and born within this our realm of England, or in any other of our dominions."2 In spite of the wanton proceedings by which its charter was annulled by a judgment of the king's bench in June, 1624, and its affairs transferred to the privy council, the Virginian settlement survived as a royal colony, and its government as finally organized was vested in a representative assembly chosen by the people, in a royal council nominated by the crown, and in a royal governor armed with a veto power upon legislation. Such was the general structure of a royal colony, a type which, originally represented by Virginia alone, came to be the prevailing type before the severance from the mother country. In the same sense in which Virginia stands as the typical Massa- representative of the royal colonies, Massachusetts stands as the typical representative of the opposite class, — consisting of Massachusetts, Rhode Island, and Connecticut, generally known as the charter colonies, despite the fact that their foundations were laid without the aid or sanction of charters As Tocqueville has expressed it, "in general, charters were not given to the colonies of New England till their existence had become an established fact. Plymouth, Providence, New Haven, Connecticut, and Rhode Island were formed without the help, and almost without the knowledge of the mother country.' "' 4 It may therefore be said that their 1 The process of reproduction is well stated by Doyle, English Colonies in Am., Virginia, etc., pp. 215-220. "The colonists proudly looked on the Constitution of their various States as copies of that of the mother country." Green, Hist. Eng. People, vol. iv. p. 169. 2 See Charters and Constitutions, part ii. p. 1891. 8 See Chalmer's Introduction, vol. i pp. 13-16. 4 Democracy in America, vol. i. p. 45 Connecticut has been graphically described as "a State which was born, free constitutions were older than their charters. The royal charter of 1629 which organized a group of New England settlements into a corporation under the title of the Governor and Company of Massachusetts Bay, and then authorized them to regulate their own affairs as a practically independent and self-governing community, was in fact nothing more than a recognition of a preëxisting state of things. The Internal or government of the Massachusetts colony was vested by the ganization. charter in the governor, deputy governor, and eighteen assistants, all of whom were to be annually elected by the freemen. The only dependence under which the colony labored at the outset grew out of the fact that it was subject to the control of a corporation in England composed of those by whom its organization had been brought about. With the extinction of this company through the transfer of its charter to America that tie was severed, and Massachusetts became, as far as a colony could become, an independent commonwealth, and continued to be such down to the annulment of its charter Charter an in 1684 by a scire facias. By the new charter granted it in 1691 its original independence was much curtailed by a provision which gave to the crown the right to appoint a royal governor with an absolute veto upon legislation. Both Rhode Island and Connecticut preserved their free charters unaltered down to the Revolution; and even then so completely adequate were they to all their wants they did not change them. The charter granted to Connecticut by Charles II. in 1662 was continued as her organic law until 1818; while the charter granted in 1663 to Rhode Island was continued as her organic law down to 1842.2 Between the royal and charter governments stood a middle class known as proprietary, which approached nearer to the latter than the former in respect to their freedom from royal not made, which grew by natural accretion of townships, which formed its own government, made its own laws, engaged in its own alliances, fought its own wars, and built up its own body, without the will of King, Kaiser, or Congress, and which, even at the last, only made use of the royal authority to complete the symmetry of the boundaries it had fairly won for itself." See "The Genesis of a New England State," 1 "But, if it be not a paradox to say 2 See Charters and Constitutions, part i. p. 252; part ii. p. 1603. nulled in 1684 by a scire facias. The propri- control. The proprietary system, which grew out of the idea etary sys- that the work of colonization could be better accomplished Maryland: by private individuals than by corporate enterprise, rested tem upon a series of grants made by the crown to one or more proprietors of vast tracts of land coupled with an almost unlimited power of government and legislation. The first proprietary government that bore fruit was that of Maryland, whose constitutional history begins with the grant made in 1632 to the first1 Lord Baltimore of the tract of land lying to the north of that actually settled by the Virginia Company. By this grant the proprietor and his successors were not only invested with the title to the land, but they were also authorized to make laws with the assent and advice of the majority of the freemen or their representatives, free from all real dependence upon royal authority.2 The details of political organization were in a great measure confided to the discretion of the proprietor, whose original conception of a constitution consisted of a governor, council, and primary assembly, -a veritable Old-English gemote - in which every freeman her primary had the right to represent himself and to vote. Gradually as supplanted the primary plan grew inconvenient it was supplanted by a by a repre- representative system, and in 1647 the governing body was assembly sentative system. divided into two chambers, the lower consisting of an elective house of burgesses, the upper of the councillors and of those specially summoned by the proprietor. In the grant to the proprietors of Carolina we find the same absoluteness of sovereignty over the land, and the same freedom from royal control, with more careful provision however in favor of the freeholders who were endowed with a charter right to participate in legislation. Here it was that the proprietors attempted to create a political fabric through the aid of Locke -a philosopher of the Social Contract school-whose Fundamental Constitutions quickly illustrated how vain it and Locke's tutions. was to attempt to govern Englishmen by a paper constitu- Carolina tion whose complicated and artificial details offended the Fundamennational instinct by departing from the primitive tradition. tal Consti When the proprietary system is viewed as a whole the great landlords to whom the original grants of land and political authority were made must be looked upon as the mediums or conduits through which the crown conveyed to the colonists the boon of local self-government. The colonies of Maryland, New York, New Jersey, New Hampshire, Pennsylvania (including Delaware), Carolina, and Georgia were at the outset proprietary. But as the proprietors one by one surrendered their charters to the crown they were all transformed into royal colonies, except Maryland, Pennsylvania, and Delaware, which remained proprietary down to the Revolution,2 — subject to the charter right of their governors to veto legislation. The fact that the soil upon which the English colonies in American theory of America were planted came to them through royal grants, colonial the fact that every form of political organization established rights. thereon rested upon royal charters, were the foundation stones upon which the colonists gradually built up, in the light of their actual experience, their theory of the political relations which bound them to the mother country. Their rights as Englishmen endowed with "all liberties, franchises, and immunities of free denizens and natural subjects" flowed from their charters which, as between themselves and the crown, were irrevocable though not non-forfeitable contracts. The earliest form of direct legislative control to which any of the colonies were subjected in the form of ordinances or instructions for their government emanated, not from the law-making power of the king in parliament, but from the ordaining power of the king in council. And at a later day 1 For the first draft of the Constitutions, see Carroll, vol. ii. p. 361; for the later modifications, see the Shaftesbury Papers, under the years in which they were issued. 2 "There were thus at last three proprietary, seven royal [Va., N. Y., N. J., N. H., N. C., S. Č., and Ga.], one semi-royal [Mass.], and two charter colonies" [Conn. and R. I.]. See Enc. Brit., 9th ed., vol. xxiii. p. 730. 8 "The title to the English colonies was not in the people of England nor in the state, but in the crown, and descended with it. The crown alone could sell or give away these lands. The crown could make laws for the inhabitants, and repeal them; could appoint their rulers, and remove them. Parliament could do neither." - Nar. and Crit. Hist., vol. vi. p. 3. The crown regarded as the only tie which bound the colonies to England. English theory of colonial rights. when the colonial assemblies began the work of legislation on their own account, the validity of their enactments depended, not upon the approval of the English parliament, but upon that of the royal governor who stood as the ever-present representative of his royal master. With the founding of the colonies, and with the organization of their political systems, the crown had everything to do; the parliament practically nothing. Apart from the control which it had exerted from the beginning over their external affairs in matters of trade and navigation, the colonies, prior to the latter part of the eighteenth century, had not been drawn within the widening circle of its imperial authority. The whole tendency of their early experience was to lead the colonies to believe that the crown was the only tie which bound them to the mother country, that to each one of them the king stood in the direct relation of chief executive, that to him alone duties were due, and that the only proper mediums of communication between the crown and the colonies were the colonial parliaments. In their local legislatures the colonists had learned how to tax themselves, and how to regulate their home affairs through laws of their own making. Losing sight of the fact that England had grown into an empire since the work of colonization began, the colonists clave to the earlier conception which regarded the home parliament simply as the legislative organ of the United Kingdom. As such they held that it had no right to invade the jurisdictions of their colonial assemblies in order to legislate directly upon their internal concerns. While remoteness and self-interest were alike intensifying in the colonial mind this reasonable yet narrow conception, the growth of English dominion was leading English statesmen at home to elaborate a theory which, in the gorgeous language of Burke, clothed the English parliament with an "imperial character, in which, as from the throne of heaven, she superintends all the several inferior legislatures, and guides and controls them all without annihilating any."2 In the hands of a practical tax-loving statesman like Grenville this imperial theory was not con 1 This is well put by Fiske in The Critical Period of Am. History, p. 63. 2 Speech on American taxation April 19, 1774. |