Colonial Charters

AuthorJohn Phillip Reid

Page 443

Perhaps no other American constitutional topic has been subject to such changing and contrary interpretations as has that of colonial charters. For example, GEORGE BANCROFT, who in 1834 had written that the Massachusetts charter of 1629 "established a CORPORATION, like other corporations within the realm," wrote in 1883 that the charter "constituted a body politic by the name of the Governor and Company of the Massachusetts Bay." Bancroft's apparent inconsistency is less contradiction than part of a constitutional controversy. Even during the colonial period constitutional experts disagreed about the legal nature of charters.

A few North American colonies (Plymouth, New Haven) had no charters. Most did, however, and the earliest charters were of two types. The first (Virginia, Massachusetts Bay), modeled on trading company charters granted to merchants, stressed commerce and settlement. The second (Maryland, Maine, Carolina) was based on the palatinate bishopric of Durham County, England. Later, a third type of charter was issued: "royal" charters for colonies in which the governor and other designated officers were appointed by the Crown. Containing more provisions directing government functions, royal charters generally defined a colony's relations with the mother country, not its internal constitution. No matter the type, charters were statements of privileges, not organic acts of government; they conferred immunities from prosecution and did not define structures of governance. Colonial charters, therefore, did not contribute significantly to constitutional law or history except when Americans claimed immunity from parliamentary authority.

American legal theory held that charters were contracts by which the king promised to protect and defend his American subjects in exchange for the subjects' allegiance. A better theory was that charters were evidence of a contract between the English crown and the first settlers of America. By either theory charters were not CONSTITUTIONS but one of the sources of constitutional rights along with the ancient English constitution, the current British constitution, the original contract, the second original contract, COMMON LAW, custom, and, to a minor degree, natural law. The first charter of Virginia stated a principle, repeated in later Virginia charters and in the charters of several other colonies, that the colonists "shall have and enjoy all Liberties, Franchises, and...

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