A Third Court and Assembly the said Colony and Plantation;" and the council should hereafter likewise "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 Plantation.” The Treasurer and Company "and such Governors, Officers, and Ministers" appointed by them for that purpose, should, within the precincts of Virginia, "have full and absolute Power and Authority to correct, punish, pardon, govern, and rule" the King's subjects residing within the Colony, "according to such Orders, Ordinances, Constitutions, Directions, and Instructions," established by the council, and " in Defect thereof in case of Necessity, according to the good Discretion of the said Governor and Officers respectively, as well in Cases capital and criminal, as civil, both Marine and other; So always as the said Statutes, Ordinances and Proceedings as near as conveniently may be, be agreeable to the Laws, Statutes, Government, and Policy of this our Realm of England." " 1 By this second charter the Company is created a body politic, with legislative, executive and judicial functions, and the council created by the first charter to reside within the colony is displaced by a governor and officers invested by the corporation with powers of supervision and control. Time and experience having shown the need of ampler powers, a third charter, likewise drafted in first instance by Sir Edward Sandys and finally by Sir Henry Hobart, Attorney, and Sir Francis Bacon, Solicitor General, was granted in 1612, by virtue of which the London Company received the authority requisite to plant, develop and cultivate the colony as the Crown had and the proprietor should possess. Passing over minor matters, such as the grant of the Bermuda Island to the Company, the Treasurer and Company of Adventurers and Planters were empowered, once a week or oftener at their pleasure, to "hold, and keep a Court and Assembly for the better Order and Government of the said Plantation, and such Things as shall concern the same; And that any five Persons of our Council for the said first Colony in Virginia, for the Time being, of which Company the Treasure [r], or his Deputy, to be always one, and the Number of fifteen others, at the least, of the Generality of the said Company, assembled together in such Manner, as is and hath been heretofore used and accustomed, shall be said, taken, held, and reputed to be, and shall be a sufficient Court of the said Company, for the handling and ordering, and dispatching of all such casual and particular Occurrences, and accidental Matters, of less Consequence and Weight, as shall from Time to Time happen, touching and concerning the said Plantation." 2 Here we have a corporation au 1 Thorpe, Charters and Constitutions, Vol. 7, pp. 3795, 3797, 3798, 3801; Poore, pp. 1893, 1898, 1899, 1901. 2 Thorpe, ibid., p. 3805; Poore, p. 1904. thorized to hold weekly meetings of such members as happened to be present, under the presidency of its executive, provided not less than fifteen members of the company attend, for the transaction of ordinary matters. But the affairs of the company beyond the seas were not ordinary matters, and they needed the attention, not of the few who might happen to attend, but of the many who should be present and take part in their settlement. Therefore, the charter provided for this eventuality in the passage of its text immediately succeeding that which has been quoted: General And that nevertheless, for the handling, ordering, and disposing of Mat- Great and ters and Affairs of greater Weight and Importance, and such as shall or may, Courts in any Sort, concern the Weal Publick and general Good of the said Company and 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, upon the last Wednesday, save one, of Hillary Term, Easter, Trinity, and Michaelmas Terms, for ever, one great, general, and solemn Assembly, which four Assemblies shall be stiled and called, The four Great and General Courts of the Council and Company of Adventurers for Virginia; 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, and their Successors for ever, by these Presents, that they, the said Treasurer and Company, or the greater Number of them, so assembled, shall and may have full Power and Authority, from Time to Time, and at all Times hereafter, to elect and chuse discreet Persons, to be of our said Council for the said first Colony in 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; 1 Bearing in mind the fact that the third charter confirmed the powers and privileges granted by the second, while adding to them in the respects quoted, we have at last reached, by three successive steps the charter of the East India Company, granted by Queen Elizabeth in 1600, created for profit, with the difference that, in addition to the profit from trade, the charter of Virginia contemplated the settlement of a plantation and the creation of a colony as well. For this purpose the Company was empowered to admit new members, who, when admitted, became entitled to the rights and privileges possessed by the other members, thus making it possible for the Company to include all persons who should become inhabitants of the colony. Thus, the full and general court, assembled as aforesaid, was authorized from time to time and for all time to "elect, choose and admit into their Company, and 1 Thorpe, Charters and Constitutions, Vol. 7, p. 3805; Poore, pp. 1904-5. 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 de scribed: 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 1 Stith, History of Virginia, App. iv, p. 33. 2 Ibid., pp. 33-34. 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." 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." 1 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. 3 Annals of the American Academy, 1891, Vol. i, pp. 542-3. |