of better government." With this end in view, the charter prescribes that the merchants "may freely and lawfully assemble and meet together," when and where they please, to elect governors "in those parts at their good liking." The governors are empowered to rule and administer justice to all English merchants resorting to those parts, to adjust disputes among the English merchants themselves, and disputes between English merchants and the merchants of the soil, to punish, to enforce, "and by the common consent of the aforesaid merchants our subjects, to make and establish statutes, ordinances and customs as shall seem expedient in that behalf for the better government of the state of the said merchants our subjects."... The one and only object of the charter is better government, and the way in which better government is to be attained is by granting selfgovernment. The king knew well, and the merchants knew well, that, given law and order, English trade would prosper without government assistance; regulated companies were the early companies, regulated trade is what they stood for, as opposed to promiscuous and disorderly traffic. The king knew well, and the merchants knew well, that among Englishmen the golden road to law and order is to give them definite authority to govern themselves, to choose their own rulers and make their own laws. Exactly two hundred years later, in 1606, the continuous history of the British Empire beyond the seas began with the grant of a royal charter to the Virginia Company; the charter which was given to the English merchants in the Low Countries for their better government in 1407 might almost have been a model for the founding of English colonies in America. (Sir C. P. Lucas, The Beginnings of English Overseas Enterprise, 1917, pp. 149–151.) In good truth his company was a plentiful nursery, for the forerunner and ancestor of all the chartered companies was the fellowship of the Merchant Adventurers: they made the first experiments and took the first risks: "one day still being a schoolmaster unto the other," they gradually evolved the machine which built up the British Empire. (Sir C. P. Lucas, The Beginnings of English Overseas Enterprise, 1917, p. 149.) The Merchant Adventurers had a definite, continuous, working life, in one phase or another, from the central years of the Middle Ages till the beginning of the nineteenth century. . . . They embodied, to quote Carlyle's words, the English instinct “to expand, if it be possible, some old habit or method, already found fruitful, into new growth for the new need." Born of a guild, they became, as a regulated company, a guild enlarged and expanded to meet wider calls than those of a particular trade in an English city: they embodied "the development of national commerce along lines which were familiar in municipal life." That continuity, which has been an outstanding feature of English character and English history, was at once illustrated and up held by the Merchant Adventurers... The actual beginnings of the Overseas Empire of Great Britain coincided roughly with the beginnings of joint-stock companies, and in the construction of the Empire joint stock played a part which can hardly be over-estimated. (Sir C. P. Lucas, The Beginnings of English Overseas Enterprise, 1917, pp. 141-143.) This third charter of Virginia thus erected the London Trading Company into a bodypolitic, democratic in its organization, with powers vested in a chief executive, a council, and an assembly, having full authority to legislate and to establish a form of government for the colony confided to its care. The charter just described possessed all the essential elements of a written constitution. It established a frame of government and distributed executive, judicial, and legislative functions. It was, however, merely the constitution of an English trading company. (William C. Morey, The Genesis of a Written Constitution, Annals of the American Academy of Political and Social Science, 1890-91, Vol. I, p. 541.) As we trace the various political institutions of the American colonies back to a common source we find that they were in the first instance derived from certain powers delegated by the English crown and embodied in charters granted to trading companies or proprietors. The first colonies, whether they were established by the authority of their superiors, or whether they were organized by their own independent efforts, acquired a form similar to that of the trading company. In its most primitive and typical form the colonial government, like that of the company, consisted of a governor, a deputy-governor, a council of assistants, and a general assembly. In this simple political body there was at first little differentiation of functions. The most important business, whether legislative, judicial or administrative, was performed by the whole corporate body, assembled in a General Court." Matters of minor importance gradually came to be left to the official part of the body, that is, the governor, the deputy-governor, and the assistants, sitting together under the name of a Court of Assistants," or "Council." Taking this simple and almost homogeneous political organism as a starting point, it will not be difficult for us to trace the growth of those more complex institutions which characterized the later colonies, and which became embodied in the first State constitutions. (William C. Morey, The First State Constitutions, Annals of the American Academy of Political and Social Science, 1893, Vol. 4, pt. 1, p. 204.) These illustrations are, doubtless, sufficient to show that the form of government which prevailed in the southern colonies was modelled after that of the parent colony of Virginia, which, in turn, was derived from the form of government established by royal charter for the London Trading Company; and also that the constitutions of the southern colonies came into being, not as the result of mere custom, but as the product of statutory legislation. As we turn to New England we shall see that the typical government of the Northern colonies was not patterned after that of a trading company. It was itself the government of a trading company. In the case of Virginia, the company sent out the colony and established a government over it. In the case of Massachusetts, the company became the colony, and brought its government with it. (William C. Morey, The Genesis of a Written Constitution, Annals of the American Academy of Political and Social Science, 1890–91, Vol. I, p. 548.) Colonial CHAPTER IV EARLY BACKGROUNDS OF THE AMERICAN CONSTITUTION · COMPANIES THE TRADING A DISTINGUISHED statesman has observed that " as the British Constitution is the most subtile organism which has proceeded from ... progressive history, so the American Constitution is . . . the most wonderful work ever struck off at a given time by the brain and purpose of man."1 With this commendation of the Constitution the layman is likely to agree, but the historian would dissent, unless Mr. Gladstone's statement, for it was he who made the remark, is to be construed in such a way that the American like the British constitution be looked upon as the most subtile organism which has proceeded from progressive history. For the fact is that, with the Saxon conquest of England, progressive history began in England, and with the advent of the first English settler to America, progressive history began in America, and the culminations were the unwritten constitution of Great Britain on the one hand and the written Constitution of the United States on the other. If, however, the constitution of Great Britain were that of America, it would not have required the calling of a convention to reduce it to writing, and although it was undoubtedly in the minds of those who framed the American instrument of government, it was not the British constitution of 1787 but the British constitution as expressed in colonial charters adjusted to the conditions and circumstances of the new environment and incorporated in the Constitutions of the several independent states of America (to quote the title of a Congressional publication of 1781 2), which formed the firm and sure foundation upon which the new structure was reared. It is common knowledge that the territories which formed the thirteen British colonies, and ultimately the thirteen original States, were settled under charters granted by the Crown; that the earliest of these charters, to the London and New England Companies, were in form and content similar to, if not identical with the charters granted to the Trading Companies of England, of which the East India Company is the most famous and typical example; 1 William E. Gladstone, Gleanings of Past Years, 1843-78, Vol. i, p. 212. 2 The Constitutions of the several independent states of America; the Declaration of independence; the Articles of confederation between the said states; the treaties between His Most Christian Majesty and the United States of America. Published by order of Congress, Philadelphia, 1781. that the form of government developed in Virginia under its charter was followed by the colonies south of Mason and Dixon's line; and that the form of government developed in Massachusetts under its charter, was followed by the colonies to the north of that line. It is important to dwell upon these facts, because they show how naturally the framers of the American Constitution were consciously or unconsciously influenced by generations of colonial experience and practice to authorize the judicial power of the United States to declare unconstitutional those acts of Congress and of the States forming the American union inconsistent with that charter which we call the Constitution, just as the courts of the mother-country had from time to time declared null and void legislation on the part of the colonies in excess of the grants contained in the charters creating these bodies politic. In the first volume of his history of Massachusetts, published in 1764, Thomas Hutchinson, then Chief Justice and Lieutenant Governor, and soon to become the last Royal Governor of that Commonwealth, said, in speaking of the original charter of the colony granted on March 4, 1628: It is evident from the charter that the original design of it was to constitute a corporation in England, like to that of the East-India and other great companies, with powers to settle plantations within the limits of the territory, under such forms of government and magistracy as should be fit and necessary.1 More recently Mr. George Cawston, a specialist in such matters and an incorporator of the British South African Company, has said: Most of the colonial possessions of this Empire were in the first place settled through the agency of Chartered Companies, and that our foreign trade and commerce principally originated in the same manner. In his interesting and instructive volume entitled The Early Chartered Companies, Mr. Cawston quotes with approval in the preface that "individuals cannot extend society to distant places without forming a compact amongst themselves, and obtaining some guarantee for its being observed," to which he adds upon his own authority: All the old and most successful British colonies in America, Virginia, Massachusetts, Connecticut, Rhode Island, Pennsylvania, Maryland, and Georgia, which formed the basis of that most wonderful country, the United States of America, were founded by individuals whose public spirit, prudence, and resolution were not otherwise assisted by the Government of their country. The charter from the Crown simply erected each of those bodies of individuals into a corporation, with authority required for accomplishing, to use the words of several of these charters, "their generous and noble purpose." 2 1 Thomas Hutchinson, The_History of the Colony of Massachusets-Bay, 1764, p. 13. 2 George Cawston and A. H. Keane, The Early Chartered Companies, 1896, Preface, pp. vii-viii. Genesis of Authority Court in of Supreme Questions of Constitutionality Two Corporations In Chapter X of the volume to which reference has been made, a careful and readable account is given of "The Virginia and New England Companies and Provincial Charters," in the course of which attention is directed to a distinction which should have been made by the Crown on its own motion, but which was ultimately wrung from the mother country as the result of a bitter experience: And here a distinction should be drawn between charters granted to English trading companies, which on the whole were injurious, and charters granted to the settlers themselves, which were often beneficial and highly prized as legal instruments affording protection against the oppressive or unconstitutional measures of the Crown and the provincial Governors. In general it may be said that charters of this second category should alone have been granted, or at least the others should have been withdrawn as soon as the colonists felt themselves strong enough for self-government. Indeed, there was a natural tendency in this direction, and the control of the trading associations was ultimately everywhere replaced by representative assemblies. But the change was not always effected without considerable friction, which was due to the fact that the Home Government was slow to recognize the true relations that ought to have prevailed from the first between the colonies and the mother country. Those colonies were, and should have been regarded as, mere extensions of England beyond the seas, as Professor Seeley has clearly shown in his Expansion of England,' and had this patent fact been grasped by the ruling classes in the eighteenth century, there need, perhaps, never have been an American Revolution.1 The settlers in the new world were therefore bound to be familiar with corporations, the characteristics of which are stated by Mr. Stewart Kyd, a contemporary of the framers of the Constitution, in his treatise on the law of corporations, published in 1793-4, shortly after the Constitution of the United States went into effect. Mr. Kyd, dating the second of the two volumes from the Tower, to which he had been committed on a charge of high treason because of his liberal views - more unfashionable then than they are today — thus speaks of corporations: Among the institutions of almost all the states of modern Europe, but among none more than those of England, many of these collective bodies of men, under the names of bodies politic, bodies corporate, or corporations, make a conspicuous figure. At their first introduction, they were little more than an improvement on the communities which had grown up imperceptibly, without any positive institution; and, for a considerable period, the shade which separated the one from the other, was of a touch so delicate as to require the most minute attention, and the most discerning eye, to distinguish. One essential characteristic of a corporation is an indefinite duration, by a continued accession of new members to supply the place of those who are removed by death, or other means, which, in the language of the law, is called .perpetual succession: ... 1 Cawston and Keane, The Early Chartered Companies, pp. 198-9. |