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changed them, which he might do at his pleasure. It was evidently considered unnecessary by the Court to say that the King in changing them would make them conform, as nearly as possible, to the laws of England.

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In the case of a conquered infidel country, the laws of the conquered country were abrogated ipso facto by the conquest, "for that they be not only against Christianity, but against the law of God and of nature, contained in the Decalogue," and the King" by himself and such judges as he shall appoint, shall judge them and their causes according to natural equity until certain laws be established amongst them," that is, until Parliament made a local code or until the conquered population organized themselves into a dependent State and established its own local laws. The use of the word "judges" to describe both the administrative and judicial officers in a dependency of inferior race and civilization is noticeable. It expressed the expert and judicial character of the power exercised by the King in the dependencies, and emphasized the judicial character even where the power was exercised for purely administrative purposes.

As the American Colonies were all dominions of England to which the laws of England had been given by their charters, the principle that the King could not legislate inconsistently with the laws of England so given to them, or afterwards given to them by Parliament by an Act in which they were specially named, was the only one of the principles announced in Calvin's Case which applied to them.

The Parliamentary hearing, called the Case of the Postnati, occurred just three years before the first American colonial charter was granted. Sir Francis Bacon was the leader of the counsel appointed by the House of Commons to argue the case before the Judges, and introduced the various counsel-among whom was Sir

Edwin Sandys-who took the different parts in the argument. It was doubtless the careful consideration then given to the whole question of the relation of England to all the external communities related to it, which led Bacon to take such an interest as he did in the schemes for colonizing America, and which enabled Sandys to do his magnificent work as Treasurer of the Virginia Company.

THE

CHAPTER III

THE AMERICAN CHARTER OF 1606

HE American Charter of 1606, or the Virginia Charter, so-called, was a regulative act for two purposes; first, to grant to certain persons, who were to settle and reside in America and form there two political communities dependent upon Great Britain,-one to be called "The First Colony of Virginia" and the other "The Second Colony of Virginia "—the title to the land adjacent to their first settlements for a space one hundred miles square; and, second, to establish a Central Council in England for the superintendence of the affairs of all the American dependencies, and a Local Council in each Colony to advise with the Governor of the Colony.

At the time this Charter was granted, everything was most favorable in England for the adoption of a just plan of colonial administration. King James had come to England from Scotland, and was trying to consolidate the two Kingdoms. English jurisprudence and politics were being studied by some of the most able and publicspirited men that England has ever produced, and the King was, at this time, acting on their advice. The Charter is said to have been drawn by Lord Chief Justice Popham, who was one of the most distinguished of the Chief Justices of the King's Bench. It doubtless was in part the product of the mind of Sir Francis Bacon.

Mr. Hugh Edward Egerton, in his History of the Colonial Policy of Great Britain, published in 1897, says that the Central Council established by this Charter was a new Privy Council for Colonial Purposes.' While

this statement is correct so far as it goes, it does not fully state the character of this Council. The Privy Council was a purely consultative body—that is, it had, apart from the King, no powers of administration. Though there was nothing, and of course could have been nothing, in the Charter to prevent the King from treating the Central Council established by it as a merely consultative body and personally managing the affairs of the Colonies, yet, if he did not choose to do so, the Council could administer the affairs of the Colonies without his concurrence,-which the Privy Council, as such, or a committee of it, could not have done. It was therefore a new Privy Council for Colonial Purposes and more, -it was an Imperial Council and an Imperial Secretary of State. It was directly subordinate to the King, and had actual administrative powers subject to the King's visitorial and superintending power.

This Imperial Administrative Council, called "Our Council for Virginia," in contradistinction to the Council resident in each Colony for the purposes of local administration, which was called" the Council of the Colony," was thus described in the Charter:

There shall be a Council, established here in England, which shall consist of thirteen persons, to be for that purpose appointed by us, our heirs and successors, which shall be called our Council for Virginia; and shall, from time to time, have the superior managing and direction, only of and for all matters that shall or may concern the government, as well of the several Colonies as of and for any other part or place, within the aforesaid precincts of four and thirty and five and forty degrees above mentioned.

The Charter, by creating this Imperial Administrative Council, contained a recognition of the distinction between the functions of the King acting within the State, and his functions when acting for England as the Imperial

State constituting the Head of the British Empire. The underlying thought was that the existence of colonies of England necessarily implied that England was related to them as their Imperial State; that the functions of the State acting upon communities or corporations outside itself were distinct in character from its functions when acting upon communities or corporations within itself; and that the body of persons appointed to advise and act for the King in the performance of his duties as a part of the government of the State, when the State was fulfilling its functions toward communities and corporations within itself, ought to be distinct from the body appointed to advise him when the State was fulfilling its functions toward communities and corporations outside itself.

It is noticeable that this Imperial Administrative Council was not limited to the superintendence of the affairs of the two Colonies mentioned in the Charter, but was to have the superintendence of "any other part or place within the aforesaid precincts of four and thirty and five and forty degrees above mentioned "-that is to say, between the northern boundary of South Carolina as at present established, and the present city of Eastport, Maine, and extending westward to the Pacific Ocean. The power was large enough to place within the charge of this Council all the Indian tribes which should be conquered or should place themselves under the protection of England, and all settlements of foreigners which should be conquered or should submit to dependence on that State. Instead of being called "Our Council for Virginia," it would more properly have been called "The Imperial Administrative Council in Charge of the Relations between England and the Dependencies in America."

By the King's Orders and Instructions of November 20, 1606, the powers of the Council in England (called "the King's Council for Virginia ") were thus defined:

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