only, preserved their charter form. The later char
ters were quite distinctive from the earlier, and in
a larger or smaller degree authorized or implied
a government by the people. Representative assem
blies were, in some cases, authorized, and some of
the charters were so consonant with republican in
stitutions that they were capable of being continued
as the fundamental law of free states in the union
of the states. It is a very interesting fact that Con
necticut and Rhode Island continued under their
charters, not only during the revolution, but long
after the adoption of the national constitution. The
charter of Rhode Island, granted in 1663, was not
superseded as the constitution of that state until
1842, and the charter of Connecticut, of 1662, was
the organic law of that state until 1818.

In the second class, known as the royal or
provincial colonies, the governing powers were ex
ercised by the crown; not through interposed cor
porate boards, or proprietors, but through gover
nors and councils appointed by the king, and act
ing under royal instructions or commissions. The
instructions were made and modified at the king's
pleasure; but under these instructions and in spite



THE COLONIAL CHARTERS 35

of them, representative assemblies were organized,
and a large measure of popular control assumed.*

The proprietary colonies constituted the third
class. Here the land grants were to private indi
viduals, and were accompanied by a grant to the
patentees or proprietors of large powers of govern
ment. Before the revolution all of the proprietary
colonies had become royal colonies by the surrender
of their charters to the king, except Pennsylvania,
Delaware and Maryland.

Mr. Blackstone's classification of the American
colonies, and his view of the rights of the colo
nists, as given in his commentaries, are these:

"Besides these adjacent islands, our most distant
plantations in America and elsewhere are also, in
some respect, subject to the English laws. Planta
tions or colonies, in distant countries, are either
such where the lands are claimed by right of occu
pancy only, by finding them desert and uncultivated,
and peopling them from the mother country; or
where, when already cultivated, they have been
either gained by conquest or ceded to us by treaties.
And both these rights are founded upon the law of
nature, or at least upon that of nations. But there
is a difference between these two species of colo
nies with respect to the laws by which they are

* New Hampshire, New York, New Jersey, Virginia (after 1624),
North Carolina and South Carolina (after 1729), and Georgia (after
1751) were provincial colonies.



36 VIEWS OF AN EX-PRESIDENT

bound. For it hath been held that if an uninhabited
country be discovered and planted by English sub
jects, all the laws then in being, which are the birth
right of every subject, are immediately there in
force. But this must be understood with very
many and very great restrictions. Such colonists
carry with them only so much of the English law
as is applicable to their own situation and the con
dition of an infant colony; such, for instance, as
the general rules of inheritance and of protection
from personal injuries. The artificial refinements
and distinctions incident to the property of a great
and commercial people, the laws of police and reve
nue (such especially as are enforced by penalties),
the mode of maintenance for the established clergy,
the jurisdiction of spiritual courts, and a multitude
of other provisions, are neither necessary nor con
venient for them, and therefore are not in force.
What shall be omitted and what rejected, at what
times, and under what restrictions, must, in case of
dispute, be decided in the first instance by their
own provincial judicature, subject to the revision
and control of the king in council; the whole of
their constitution being also liable to be new-
modelled and reformed by the general superintend
ing power of the legislature in the mother country.
But in conquered or ceded countries, that have al
ready laws of their own, the king may indeed alter
and change those laws; but, until he does actually



THE COLONIAL CHARTERS 37

change them, the ancient laws of the country re
main, unless such as are against the law of God,
as in the case of an infidel country. Our American
plantations are principally of this latter sort, being
obtained in the last century either by right of con
quest and driving out the natives (with what nat
ural justice I shall not at present inquire), or by
treaties. And therefore the common law of Eng
land, as such, has no allowance or authority there;
they being no part of the mother country, but dis
tinct, though dependent dominions. They are sub
ject, however, to the control of the parliament,
though (like Ireland, Man, and the rest) not
bound by any acts of parliament, unless particularly
named.

"With respect to their interior polity, our colonies
are properly of three sorts, i. Provincial establish
ments, the constitutions of which depend on the re
spective commissions issued by the crown to the
governors, and the instructions which usually ac
company those commissions, under the authority
of which provincial assemblies are constituted, with
the power of making local ordinances not repug
nant to the laws of England. 2. Proprietary gov
ernments, granted out by the crown to individuals,
in the nature of feudatory principalities, with all
the inferior regalities, and subordinate powers of
legislation, which formerly belonged to the owners
of counties-palatine: yet still with these express



38 VIEWS OF AN EX-PRESIDENT

conditions, that the ends for which the grant was
made be substantially pursued, and that nothing be
attempted which may derogate from the sovereignty
of the mother country. 3. Charter governments, in
the nature of civil corporations with the power of
making by-laws for their own interior regulations,
not contrary to the laws of England, and with such
rights and authorities as are especially given them
in their special charters of incorporation. The
form of government in most of them is borrowed
from that of England. They have a governor
named by the king (or, in some proprietary colo
nies, by the proprietor), who is his representative
or deputy. They have courts of justice of their
own, from whose decisions an appeal lies to the
king and council here in England. Their general
assemblies, which are their house of commons, to
gether with their council of state, being their upper
house, with the concurrence of the king, or his rep
resentative, the governor, make laws suited to their
own emergencies. But it is particularly declared
by statutes 7 and 8, W. Ill, c. 22, that all laws, by
laws, usages, and customs, which shall be in practice
in any of the plantations, repugnant to any law,
made or to be made in this kingdom relative to the
said plantations, shall be utterly void and of none
effect. And, because several of the colonies had
claimed a sole and exclusive right of imposing taxes
upon themselves, the statute 6, Geo. Ill, c. 12, ex-



THE COLONIAL CHARTERS 39

pressly declares, that all his majesty's colonies and
plantations in America have been, are, and of right
ought to be, subordinate to and dependent upon the
imperial crown and parliament of Great Britain, who
have full power and authority to make laws and
statutes of sufficient validity to bind the colonies
and people of America, subjects to the crown of
Great Britain, in all cases whatsoever. And this
authority has been since very forcibly exemplified
and carried into act by the statute 7, Geo. Ill, c.
59, for suspending the legislation of New York, and
by several subsequent statutes/'

This view was not accepted by the colonists
and in another lecture I will point out the very con
clusive objections to some of Mr. Blackstone's con
clusions.

We will now examine the particular provisions of
some of the colonial charters, as general examples
it will not be possible to refer to all of them.

Of the charter of Massachusetts Bay, of 1629,
Mr. Story says: "It furnished them (the colonists),
however, with the color of delegated sovereignty, of
which they did not fail to avail themselves. They
assumed under it the exercise of the most plenary
executive, legislative and judicial powers."

Under Charles II this charter and these privileges
were challenged, and, in 1684, the high court of
chancery of England decreed a forfeiture of the
charter, and a non-popular government was estab-



4O VIEWS OF AN EX-PRESIDENT

lished by the king, which was continued until Will
iam and Mary, in 1691, granted a new charter,
uniting Massachusetts Bay, Plymouth and Maine.
This charter reserved to the crown the appointment
of a governor, in whom was vested an absolute
veto upon legislation. A council was provided to
be chosen by the assembly, and the principal officers
of the province were to be appointed by the gover
nor with the consent of the council. A general as
sembly, consisting of the governor and council, and
of representatives chosen from the towns, assembled
once a year. This body established the courts, im
posed taxes and made the necessary laws for the
government of the province. The expressed limita
tions upon the legislature lay in the veto of the
royal governor,, and in a veto reserved to the king
which might be exercised within three years.

Mr. Lodge, in his short history of the colonies,
says:

"In Massachusetts, after the loss of the old char
ter, a new charter was obtained which established
a form of government more closely resembling its
predecessor than the common provincial government
from which some features were taken. Under the
old system the charter of a trading corporation,
drawn with intentional vagueness, had, without color
of law, been converted into a foundation of an inde
pendent state. * * * The governor, the assist
ants, or the upper house, and the lower house were



THE COLONIAL CHARTERS 41

all chosen annually by the freemen; but by the new
charter the appointment of the governor was given
to the crown, the assistants or council were chosen
by the assembly, subject to the governor's approval,
and the representatives still continued to be elected
by the people."

The first patent for the Providence plantations, is
sued in 1643 by Robert, Earl of Warwick, as gov
ernor in chief of all His Majesty's plantations upon
the coast of America, and his associate commission
ers, recited the settlement by English subjects in
the towns of Providence, Portsmouth and Newport,
and conferred upon them a charter of incorporation
"with full power and authority to rule themselves,
and such others as shall hereafter inhabit within any
part of the said tract of land, by such a form of
civil government, as by the voluntary consent of all,
or the greater part of them, they shall find most
suitable to their estate and condition; and, for that
end, to make and ordain such civil laws and con
stitutions, and to inflict such punishments upon
transgressors, and for execution thereof, and to
place, and displace officers of justice, as they, or the
greater part of them, shall by free consent agree
unto."

There was here, as in other charters, a general
limitation that the laws made should be conform
able to the laws of England, so far as the conditions
would admit.



42 VIEWS OF AN EX-PRESIDENT

The charter granted for Rhode Island and Prov
idence plantations by Charles II, in 1663, to Ben
jamin Arnold "and the rest of the purchasers and
free inhabitants of our island, called Rhode Island,
and the rest of the colony of Providence planta
tions," provided for a governor, deputy governor
and ten assistants to be from time to time elected
and chosen out of the freemen of the company.
An assembly composed of the assistants and repre
sentatives chosen from the towns was to assemble
twice in each year "to consult, advise and determine
in and about the affairs and business of the said
company and plantations." The governor, assist
ants and delegates were constituted a general assem
bly with power to establish offices, choose officers,
and "from time to time to make, ordain, constitute
or repeal such laws, statutes, orders and ordinances,
forms and ceremonies of government and magistery
as to them shall seem meet for the good and wel
fare of the said company and for the government
and ordering of the lands and hereditaments, here
inafter mentioned to be granted, and of the people
who do, or at any time hereafter shall, inhabit or
be within the same." Power to establish courts of
law was granted, to prescribe the qualifications of
electors, to prescribe crimes and their punishments,
to organize a militia and to commission the officers
thereof.

This charter was framed upon the most liberal



THE COLONIAL CHARTERS 43

principles, and with an unselfish regard to the lib
erties and prosperity of the inhabitants, and in con
trast with some others and especially with the
nagging, unfriendly and repressive policy generally
pursued by the English kings toward the colonies
illustrates the fitfulness and caprice that always at
tends government by a man.

The charter of Connecticut was granted to John
Winthrop and others (1662), as the representatives
of settlers already located and who had organized a
provisional government, under a commission from
the general court of Massachusetts, as early as 1636.
The grant was to the persons named and "such oth
ers as now are, or hereafter shall be admitted and
made free of the company and society of our col
ony of Connecticut." A governor, deputy governor
and twelve assistants were named in the charter
to hold office until a day named, when an election
by the people of their successors was provided for.
Provision was made for a general assembly, repre
sentative of the freemen of the colony, having full
legislative powers, subject to the laws of England
power was given to constitute courts, to organize a
militia, and generally to exercise full powers of
local government. It was expressly declared that
all English subjects who should go to or inhabit
within the colony, and their children, should enjoy
all the liberties and immunities of free and natural
subjects of the English crown.



44 VIEWS OF AN EX-PRESIDENT

Here also, as you will observe, popular govern
ment was, as in the case of Rhode Island, fully pro
vided for. The governor and all other officers were
chosen by the people the king is in the back
ground the parliament is seen only in the shadow
of those vague words that made the colonial legis
lation subject to the laws of England; the provis
ion being "to make, ordain, and establish all man
ner of wholesome and reasonable laws, statutes, or
dinances, directions, and instructions, not contrary
to the laws of this realm of England."

The charter of 1606, granted by James I to the
Plymouth Company, and to the London companies,
under which Virginia was colonized, was without
any concessions or guaranties of civil rights or pow
ers to the colonists, save the general reservation to
the settlers of all "liberties, franchises, immunities,
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." A local coun
cil, to consist of thirteen members, was provided
for each colony, to be appointed by the king, which
should "govern and order all matters and causes
which shall arise, grow, or happen, to or within the
same several colonies according to' such laws, ordi
nances and instructions, as shall be, in that behalf,
given and signed with our hand or sign manual,
and pass under the privy seal of our realm of Eng
land." A home council (in England), also to be ap-



THE COLONIAL CHARTERS 45

pointed by the king, and to consist of thirteen per
sons, was provided for, to "have the superior man
aging and direction, only of and for all matters
that shall or may concern the government, as well
of the said several colonies, as of and for any other
part or place, within the aforesaid precincts." It
will be seen that, in the last resort, everything re
lating to government was, under this charter, re
served to the crown.

Speaking of this charter, Mr. Lodge says: "A
more awkward scheme could hardly have been de
vised. An arbitrary and irresponsible council in
America, another almost equally so in England, the
legislative powers reserved to the king, the govern
ing body a commercial monopoly, and the chief
principle of society community of property, togeth
er formed one of the most ingeniously bad systems
for the government of men which could be de
vised."

The extension of this charter, in 1609, gave
somewhat larger powers of government to the com
pany. It established "one council here [in Eng
land] resident," according to the tenor of the for
mer charter, the members of which were named.

To this council "here resident," power was given
to appoint the governor and other officers and min
isters and to make laws necessary for the govern
ment of the said colony. The council was to be
thenceforth chosen out of the company of the said



46 VIEWS OF AN EX-PRESIDENT

adventurers by the votes of the greater part in their
assembly for that purpose.

The charter of 1611-12 provided that the treas
urer and company of adventurers might once a
week or oftener, at their pleasure, hold a court and
assembly for the ordering and government of the
plantation, which was to be composed of five per
sons of the council and fifteen others of "the gen
erality" of said company, assembled in such man
ner as had been customary. This body was author
ized to order and dispatch "all such casual and par
ticular occurrences, and accidental matters, of less
consequence and weight, as shall from time to time
happen, touching and concerning the said planta
tion." All matters of greater weight and impor
tance affecting the public weal and general good
and especially the manner of government to be used
was committed to a general assembly of the com
pany which met four times in the year and was em
powered to choose persons to be of the king's coun
cil for the colony and to nominate and appoint such
officers as were requisite for the government of the
affairs of the company and to make such laws and
ordinances for the good of the plantation as were
thought requisite, not contrary to the laws of Eng
land. (These assemblies met in England.) In
1624 the charter of Virginia was annulled by quo
warranto in the king's bench, and Virginia became
a royal colony.



THE COLONIAL CHARTERS 47

New Hampshire never had a charter; but under
the royal commission for the government of the
colony, issued in 1680, the civil organization con
sisted of a president and council appointed by the
king, and of a house of burgesses, or general as
sembly, to be composed of inhabitants of the col
ony elected by the people; but all questions as to
the qualification of electors and of the persons
chosen were reserved for the decision of the presi
dent and council. The judicial powers were vested
in the president and council, and all laws required
their sanction.

The charter of Carolina (which included the ter
ritory now known as North and South Carolina
until the division in 1732), granted in 1663 to the
Earl of Clarendon and others, vested in the pro
prietors full power to make laws "with the advice,
assent and approbation of the freemen of the said
province, or of the greater part of them, or of their
delegates or deputies, whom for enacting of the
said laws," should be assembled by the proprietors.
All customs and subsidies in the province were to
be assessed by and with the consent of the major
ity of the free people there. Carolina became a
provincial colony in 1729 by the surrender of the
charter to the crown.

In the grant to Lord Baltimore of the territory
that became the colony of Maryland, made in 1632,
it was provided that the proprietor and his succes-



48 VIEWS OF AN EX-PRESIDENT

sors might make laws for the government of the
colony with the assent and advice of the majority
of the freemen or their representatives, and the gov
ernment put into force consisted of a governor,
council and assembly. In the latter, at the begin
ning, every freemen was entitled to appear. Sub
sequently a representative system was adopted and
the legislative body divided into two chambers; the
lower body was chosen by a vote of the freemen,
and the upper was composed of a council* of per
sons specially designated and summoned by the pro
prietor.

In Pennsylvania, a proprietary colony, under the
wise and liberal administration of William Penn,
representative government prevailed from the be
ginning. In a prelude to his frame of government
he declares that "any government is free to the peo
ple under it (whatever be the frame) where the
laws rule and the people are a party to those laws."
The charter (1681) provided that all legislation
should be with the consent of the freemen of the
province or of their delegates who should be called
in general assembly. A veto was reserved to the
king within five years of the passage of the laws.
The appointment of all officers was vested in the
proprietor. But the frame of government agreed
upon between Penn and the freemen of the prov
ince, in 1683, provided for the election of a council
consisting of seventy-two members, one-third to re-



THE COLONIAL CHARTERS 49

tire each year; and in the choice of this body the
right to vote was extended to all freemen of the
colony.

In 1701 a "Charter of Privileges for Pennsyl
vania" was granted by Penn, with the approval of
the general assembly. It provided for a yearly
meeting of an assembly to be chosen by the free
men of the province, for the election by the assem
bly of its own officers, and gave to the assembly
the power to judge of the qualifications of its mem
bers, and to sit upon its own adjournments. The
council did not participate in legislation, but was an
advisory board to the governor so that the legis
lative body was single and not bicameral, as the
general practice was. The local officers were to be
appointed by the governor upon the nomination of
the freemen of the district in which the officer was
to serve.

This hasty sketch of the frames of government
provided for these colonies will serve to show the
measure of popular government stipulated for by
the king; but, as I have said, the measure exercised
by the people was much larger.

Judge Story says that the colonists of Massachu
setts "extended their acts far beyond its [the char
ter's] expression of powers, and while they boldly
claimed protection from it against the royal de
mands and prerogatives, they nevertheless did not
feel that it furnished any limit upon the freest ex-



50 VIEWS OF AN EX-PRESIDENT.

ercise of legislative, executive or judicial functions/'
And this was, in a degree, true of the other colo
nies. The provision in the charter of William and
Mary to Massachusetts, for a representation of the
freemen in a general assembly, was rather a recog
nition of a former practice than a new grant. For,
as early as 1634, the colonists of Massachusetts had
demanded and secured the admission of delegates
chosen by the towns to the general court, and
Plymouth had a representative assembly as early as
1639.

The royal colonies felt the common need of repre
sentative assemblies that should participate in law-
making, and were not slack in securing them. In
Virginia, in the year 1619, the governor was au
thorized, in order to allay popular discontent, to
summon representatives and when, on July thirtieth of
that year, the burgesses chosen by the people as
sembled with the governor and his council, the rep
resentative principle had its first exemplification in
America.

Speaking of this event and of the general sub
ject, though not, as you will see, with perfect accu
racy, Governor Hutchinson of Massachusetts said:
"It is observable that all the colonies before the
reign of King Charles II, Maryland excepted, set
tled a model of government for themselves. Vir
ginia had been many years distracted under the
government of presidents and governors, with coun-



THE COLONIAL CHARTERS 51

cils, in whose nomination or removal the people had
no voice, until in the year 1620 a house of bur
gesses broke out in the colony; the king, nor the
grand council at home not having given any powers
or directions for it. The governor and assistants
of the Massachusetts at first intended to rule the
people; and, as we have observed, obtained their