Complete Works. Hamilton Alexander
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of the said adventurers, by the voice of the greater part of the said company and adventurers,” every member newly elected to be sworn into office by the Lord Chancellor.
This council had “full power and authority 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; and the same to abrogate, revoke, or change, at all times, not only within the precincts of the said colony, but also on the seas, in going or coming to or from said colony.”
This charter is also silent with respect to Parliament, the authority of which is evidently precluded by the whole tenor of it.
You, sir, took no notice of the circumstance that the council was to be nominated, chosen, continued, etc., out of the Virginia company itself, agreeably to the voice of the majority. You omitted this, and gave quite a different turn to the matter; but herein you acted not at all discordant with your usual practice. Nor did you esteem it politic to transcribe the following clause: “that the said company, and every of them, their factors and assigns, shall be free of all subsidies and customs in Virginia, for the space of one and twenty years, and from all taxes and impositions forever, upon any goods or merchandises, at any time or times hereafter, either upon importation thither or exportation from thence.”
The third charter is a still farther enlargement of their territory and privileges, and is that by which their present form of government is modelled. The following extract will show the nature of it: “We do hereby ordain and grant, that the said treasurer and company of adventurers and planters aforesaid shall and may, once every week, and oftener, at their pleasure, hold and keep a court or assembly, for the better order and government of the said plantation; and that any five persons of our council for the time being, of which company the treasurer, or his deputy, to be always one, and the number of fifteen persons, at the least, of the generality of the said company assembled together in such a manner as hath been heretofore used and accustomed, shall be reputed to be, and shall be, a sufficient court for the handling, ordering, and dispatching of all such casual and particular occurrences, as shall, from time to time, happen, touching and concerning the said plantation. And, nevertheless, for the handling, ordering, and disposing of the matters and affairs of greater weight and importance, such as shall, in any sort, concern the public weal and the general good of the said plantation, as, namely, the manner of government, from time to time, to be used, the ordering and disposing of the lands and possessions, and the settling and establishing of a trade there, or such like, there shall be held and kept, every year for ever, one great general and solemn assembly. In all and every of which said great and general courts, so assembled, our will and pleasure is, and we do, for us, our heirs and successors for ever, give and grant to the said treasurer and company, or the greater number of them, so assembled, that they shall and may have full power and authority, from time to time, and at all times hereafter, to elect and choose discreet persons to be of our said council, for the first colony of Virginia; and to nominate and appoint such officers as they shall think fit and requisite for the government, managing, ordering, and dispatching of the affairs of the said company; and shall likewise have full power and authority to ordain and make such laws and ordinances for the good and welfare of the said plantation as to them, from time to time, shall be thought requisite and meet; so always, as the same be not contrary to the laws and statutes of this our realm of England.“
By this charter, King James divested himself wholly both of the legislative and executive authority, but, for his own security, prescribed a model for their civil constitution. Their laws were not to be contrary to the laws and statutes of his realm of England; which restriction was inserted into all the subsequent charters, with some little variation, such as, that their laws should be “consonant to reason, and not repugnant, or contrary, but, as near as conveniently may be, agreeable to the laws, statutes, and rights of this our kingdom of England.”
This mode of expression, so indefinite in itself, shows that the use made of the clause by some ministerial advocates, is by no means natural or warrantable. It could only be intended to set forth the British constitution as a pattern for theirs; and accordingly we find, that upon the arrival of Sir George Yardly in Virginia, soon after this patent was procured, the government was regulated upon a new plan, that it might “resemble the British constitution, composed of two Houses of Parliament and a sovereign. The number of the council was increased, intending this body should represent the House of Lords, while the House of Commons was composed of burgesses, assembled from every plantation and settlement in the country.”
There might be a great dissimilarity between the laws of Virginia and those of Great Britain, and yet not an absolute contrariety; so that the clause in question is not explicit or determinate enough to authorize the conclusion drawn from it. Besides, if the colonies were within the realm of England there would be no necessity for any provision in favor of its laws; and if they were without (as is clearly implied by the clause itself), it must be a contradiction to suppose its jurisdiction could extend beyond its own limits.
But the true interpretation may be ascertained, beyond a doubt, by the conduct of those very princes who granted the charters. They were certainly the best judges of their own intention, and they have left us indubitable marks of it.
In April, 1621, about nine years after the third Virginia charter was issued, a bill was introduced into the House of Commons, for indulging the subjects of England with the privilege of fishing upon the coast of America; but the House was informed by the Secretary of State, by order of his Majesty King James, that “America was not annexed to the realm, and that it was not fitting that Parliament should make laws for those countries.”
In the reign of his successor, Charles the First (who granted the Massachusetts and Maryland charters), the same bill was again proposed in the House, and was, in the like manner, refused the royal assent, with a similar declaration that “it was unnecessary, that the colonies were without the realm and jurisdiction of Parliament” circumstances which evidently prove that these clauses were not inserted to render the colonies dependent on the Parliament, but only (as I have observed) to mark out a model of government for them. If, then, the colonies were, at first, without the realm and jurisdiction of Parliament, no human authority could afterward alter the case, without their own voluntary, full, and express approbation.
The settlement of New England was the next in succession, and was instigated by a detestation of civil and ecclesiastical tyranny. The principal design of the enterprise was to be emancipated from their sufferings, under the authority of Parliament and the laws of England. For this purpose, the Puritans had before retired to foreign countries, particularly to Holland. But Sir Robert Naughton, Secretary of State, having remonstrated to his Majesty concerning the impolicy and absurdity of dispeopling his own dominions by means of religious oppression, obtained permission for the Puritans to take up their abode in America, where they found an asylum from their former misfortunes.
Previous to their embarkation at Holland, they had stipulated with the Virginia Company for a tract of land in contiguitywith Hudson's River; but when they arrived in America (by some misconduct of the pilot), they found themselves at Cape Cod, which was without the boundaries of the Virginia patent. There the season compelled them to remain, and there they have prosecuted their settlements.
They looked upon themselves as having reverted to a state of nature, but being willing still to enjoy the protection of their former sovereign, they executed the following instrument:
“In the name of God, Amen! We, whose names are underwritten, the loyal subjects of our dread Sovereign Lord, King James, of Great Britain, etc., King, Defender of the Faith, etc., having undertaken for the glory of God, and the advancement of the Christian faith, and the honor of our King and country, a voyage to plant the first colony in the northern part of Virginia, do, by these presents, mutually, in the presence of God and one another, covenant and combine ourselves together into a civil body politic, for our better order and preservation, and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute, and frame, such just and equal laws, ordinances, acts, constitutions, and officers, from time to time, as shall be thought most meet