A Representative Assembly A Fore- Society, any Person or Persons, as well Strangers and Aliens born in any Part beyond the Seas wheresoever, being in Amity with us, as our natural Liege Subjects born in any our Realms and Dominions;" and that all such persons were thereupon entitled to "have, hold, and enjoy all and singular Freedoms, Liberties, Franchises, Privileges, Immunities, Benefits, Profits, and Commodities whatsoever, to the said Company in any Sort belonging or appertaining, as fully, freely and amply as any other Adventurers now being, or which hereafter at any Time shall be of the said Company, hath, have, shall, may, might, or ought to have and enjoy the same to all Intents and Purposes whatsoever." 1 The settlers scattered themselves throughout the little colony, so that, in 1619, they might be said to form eleven separate communities, impressed, apparently, with the desire to assemble, as is declared to be the wont of Englishmen. This they did under the authority of the governor of the colony, who himself was apparently authorized thereto by a commission executed by the Virginia Company in November, 1618, and on July 30, 1619 two members or burgesses from each of the eleven settlements met with the governor and council in the little church in Jamestown, forming the first representative assembly ever meeting in the New World. Two years later, in July, 1621, this action of the governor and of the settlers was specifically confirmed in a formal ordinance, which apparently established in that part of America, now comprised within the United States, the American system of liberty, that is to say, the exercise of political power in accordance with and pursuant to the terms of a written document emanating from superior authority, whether that document be a charter, an ordinance, a statute, a constitution, or whether emanating from a company, the crown, or the people. This ordinance, which is appropriately called the Constitution of the Treasurer, Council and Company in England, created "two Supreme Councils in Virginia, for the better Government of the said Colony aforesaid," 2 for the reasons stated in what may be called the preamble to this constitution or instrument of government, and which should be given in their language of the first person, as they were doing it directly, not indirectly. In so doing the treasurer, council and company declared themselves as "taking into our careful Consideration the present State of the said Colony of Virginia, and intending, by the Divine Assistance, to settle such a Form of Government there, as may be to the greatest Benefit and Comfort of the People, and whereby all Injustice, Grievances, and Oppression may be prevented and kept off as much as possible from the said Colony, have thought 1 Thorpe, Charters and Constitutions, Vol. 7, p. 3806; Poore, p. 1905. 2 William Stith, History of the First Discovery and Settlement of Virginia, Sabin ed., 1865, App. iv, p. 32. fit to make our Entrance, by ordering and establishing such Supreme Councils, as may not only be assisting to the Governor for the time being, in the Administration of Justice, and the Executing of other Duties to this Office belonging, but also, by their vigilant Care and Prudence, may provide, as well for a Remedy of all Inconveniences, growing from time to time, as also for the advancing of Increase, Strength, Stability, and Prosperity of the said Colony." The first, to be called the Council of State, appointed by the Treasurer, Council and Company, consisted of the Governor and certain specified persons, who were directed to "bend their Care and Endeavours to assist the said Governor," and to be "always, or for the most Part, residing about or near the Governor." 1 The second and the more important body is thus described: The other Council, more generally to be called by the Governor, once Yearly, and no oftener, but for very extraordinary and important Occasions, shall consist, for the present, of the said Council of State, and of two Burgesses out of every Town, Hundred, or other particular Plantation, to be respectively chosen by the Inhabitants: Which Council shall be called The General Assembly, wherein (as also in the said Council of State) all Matters shall be decided, determined, and ordered, by the greater Part of the Voices then present; reserving to the Governor always a Negative Voice. And this General Assembly shall have free Power to treat, consult, and conclude, as well of all emergent Occasions concerning the Publick Weal of the said Colony and every Part thereof, as also to make, ordain, and enact such general Laws and Orders, for the Behoof of the said Colony, and the good Government thereof, as shall, from time to time, appear necessary or requisite; . . . But as this was an agency of the company, possessed under its charter of certain enumerated powers, it could not make a grant to its agent of powers and authority greater than it itself possessed. Hence, the general laws and orders which should from time to time appear necessary or requisite in behalf of the Colony are to be in accordance with the terms of the charter, and accordingly the general assembly and the Council of State are required, in the succeeding passage, to imitate and follow the Policy of the Form of Government, Laws, Customs, and Manner of Trial, and other Administration of Justice, used in the Realm of England, as near as may be, even as ourselves, by his Majesty's Letters Patent are required." 2 But as the possessors of limited or enumerated powers are wont to construe them so liberally in their own behalf as to exceed the grant, there must be some authority to pass upon the exercise of such powers and to keep them within the terms of the grant. Therefore, it Ratification was provided in the succeeding article of the ordinance, " that no Law or Ordinance, made in the said General Assembly, shall be or continue in Force or Required Two Validity, unless the same shall be solemnly ratified and confirmed, in a General Quarter Court of the said Company here in England, and so ratified, be returned to them under our Seal." And by an act of generosity, possible, indeed, in men of good will but not to be expected from the Crown or that artificial person we call the State, it was further provided that "no Orders of Court afterwards shall bind the said Colony, unless they be ratified in like Manner in the General Assemblies." 1 So true it is, as stated by Guizot in his History of Civilization, that, when there scarcely remained traces of national assemblies, the remembrance of them, of "the right of free men to join together, to deliberate and transact their business together, resided in the minds of men as a primitive tradition and a thing which might again come about." Innocent as these early settlers were of the customs of the primitive Germans, as depicted by Tacitus, they were unconscious of the fact that, in meeting together, they were following the custom of the great assembly in England, known to them and to us by the name of Parliament, the Lords and Commons of which met together and transacted their business in a single house for a long period of time. In like manner so the governor, council and burgesses continued to meet together. However, in 1680, the then governor, "Lord Colepepper, taking Advantage of some Disputes among them," to quote the language of a Virginian historian of the day, "procur'd the Council to sit apart from the Assembly; and so they became two distinct Houses, in Imitation of the two Houses of Parliament in England, the Lords and Commons; and so is the Constitution at this [1705] Day." 2 The powers of the company were resumed by the Crown in 1624. From this period until the Revolution the colony was governed under instructions from the Crown, as doubtless it would have been under a charter if one had again been granted. On this state of affairs Mr. Morey feels justified in saying in his own behalf, and vouching for the truth of it a distinguished English authority, who can not be considered as having a thesis to maintain: It will be seen that all the essential features of this constitution were a reproduction of the constitution of the London Company and of its prototype, the East India Company, namely: (1) The three elements of the government -the chief executive, the council, and the assembly; (2) the administrative and judicial functions of the governor and council; and (3) the legislative functions of the governor, council, and freemen united in a single body. The only important modifications - namely, the introduction of deputies and the granting of the veto power to the governor were clearly the direct result of the peculiar circumstances in which the colony was placed; the one due. simply to convenience, and the other to the desire on the part of the company to preserve as far as possible its control over the legal acts of the colony.3 1 F. Guizot, The History of Civilization, 1858, Vol. iii, p. 199. 2 Robert Beverly, History of Virginia, 1722, p. 203. Annals of the American Academy, 1891, Vol. i, pp. 542-3. The authority invoked by Mr. Morey is that of George Chalmers, who, after mentioning the provisions of the ordinance, says in his Introduction to the History of the American Colonies, first published in 1780: "Thus we trace to a commercial company the source of those free systems of provincial government, that has distinguished the English colonies above all others for their regard for the rights of men. In this famous ordinance, we behold the model from which every future provincial form was copied, though varied by difference of circumstance." Distinction North South While the experience of Virginia is repeated in all of the colonies, it is but Between natural that the southern colonies, including Maryland, should follow more and closely in the steps of what is affectionately called the Old Dominion, taking as their basis a trading company and a political corporation, with the seat of authority in England, not in America. The northern colonies, as was also natural, followed more closely the experience and the example of Massachusetts, in which the charter was that of a trading company and of a body politic, with the seat of authority in England. The charter was, however, transferred to America by the grantees, then apparently possessing what has come to be known as Yankee shrewdness, by the simple expedient of appointing the governor and officers of the company from those who were about to settle and who actually did settle in the colony. Thus in New England the colony and the trading company became one and the same. It will be recalled that the charter of 1606, granted to the London Company, divided the territory in America to which the Crown of Great Britain laid claim into two sections, the southern, out of which the southern colonies, including Maryland, were primarily carved, and the northern section, within which the colonies of New England and what are now the Middle States were principally created. The second charter, granted to the London Company in 1609, excluded the northern section and restricted itself to Virginia, which, extensive as it was, occupied but a part of the southern division. In 1620 the Plymouth Company obtained also a second charter dealing only with the northern division, which, as stated, had been separated by the second charter to the London Company granted eleven years previously. The second charter of the Plymouth Company is similar to although not identical with the second of the London Company. It possesses in general the same powers and authority, which, however, are separately analyzed. By this charter the Plymouth Company became the Council of Plymouth for New England, and the starting point for the colonies of New England, and for the Middle States which followed, as it were, in its wake. After reciting the grant of the Virginia charter of 1606 and the subse 1 George Chalmers, Introduction to the History of the Revolt of the American Colonies, 1845, Vol. i, pp. 16–17. The Plymouth Company . quent separation of the London and Plymouth Companies under the charter of 1609, the patent vests in the members of the Company the territory from sea to sea lying between the 40th degree-which, it may be said, passes through the present city of Philadelphia -and the 48th degree of North Latitude; and the territory was henceforth to be known by the name of New England in America. For the better planting and governing of New England, a body politic and corporate was created in the English town of Plymouth in the county of Devon, to consist of forty persons and to be known by the name of the Council established in Plymouth in the County of Devon "for the planting, ruling, ordering, and governing of New-England, in America.” The council was authorized to fill vacancies in its membership, to receive, hold and dispose of realty and personal property, and, as a body corporate, to sue and be sued, and to elect from their members a president, to hold office during their pleasure. The council was also authorized in its discretion to admit such persons as they should think fit "to be made free and enabled to trade . . unto . . . New-England . . ., and unto every Part and Parcell thereof, or to have any Lands or Hereditaments in New-England . . .,' according to such rules and regulations as the council might be pleased to establish in pursuance of the powers contained in the patent. In addition, the charter specifically granted full power and authority to the council to “nominate, make, constitute, ordaine, and confirme by such Name or Names, Sale or Sales, as to them shall seeme Good; and likewise to revoke, discharge, change, and alter, as well all and singular, Governors, Officers, and Ministers, which hereafter shall be by them thought fitt and needful to be made or used, as well to attend the Business of the said Company here, as for the Government of the said Collony and Plantation, and also to make . . . all Manner of Orders, Laws, Directions, Instructions, Forms, and Ceremonies of Government and Magistracy fitt and necessary for and concerning the Government of the said Collony and Plantation, so always as the same be not contrary to the Laws and Statutes of this our Realme of England, and the same att all Times hereafter to abrogate, revoke, or change, not only within the Precincts of the said Collony, but also upon the Seas in going and coming to and from the said Collony, as they in their good Discretions shall thinke to be fittest for the good of the Adventurers and Inhabitants there." The governors, officers and ministers to be appointed by the council were authorized and empowered, and the council, governors, officers and ministers, appointed by the council, were authorized, according to the nature and limits of their offices" within the said Precincts of New-England . . . to correct, punish, pardon, governe, and rule all such . . . as shall from time to time adventure themselves in any Voyage thither, or that shall att any Time heerafter inhabit in the Precincts 1 Thorpe, Charters and Constitutions, Vol. 3, pp. 1831-33; Poore, p. 925. |