THE CORPORATION AS A FORM OF COLONIAL IT GOVERNMENT. II. III. The Corporate Colony. It T is now necessary to show how the last and most important stage in the development of the corporation as a form of colonial government was passed. In England, as the result of the combination of the council with the business corporation, two distinct types of organization had been produced. remains to be seen how an open corporation of the London type- that is, one in which the membership was susceptible of indefinite increase — became merged in the colony which it was itself creating; and how, as a consequence of this, it discarded old functions and adopted new ones, thereby becoming radically changed as to the purposes, though not as to the form, of its existence. This change, it has been said, was accomplished in two ways: by the transfer of the governing body of the corporation and ultimately of its members and interests into the colony, and by the creation of a corporation on the place. These events were of sufficient importance to make an epoch in the history of English colonization; for, if we view them from the English and imperial standpoint, we see that they gave rise to a distinct form of colonial government; while if we view them from the American standpoint, that of local and national independence, we see that through them originated the earliest form of the American commonwealth. The transitional process by which, in the case of Massachusetts, the change was effected will now be traced. As has been many times related, the Massachusetts Company developed out of an association of adventurers living in the neighborhood of Dorchester, England, who in 1623 founded a fishing-station at Cape Ann. This enterprise proved a failure, and after three years the partnership was dissolved. Only a few men remained at the station; but soon the Rev. John White of Dorchester interested other west-of-England men in the work of founding a colony, and six of them, in March, 1628, obtained by indenture from the New England Council a grant of the territory lying between the Merrimac and Charles rivers, and extending through to the Pacific Ocean. With this land governmental powers in the full and proper sense of the term were not and could not be bestowed. Neither were the grantors incorporated, but the grant was made expressly to them, "their heirs and assigns." They were made tenants, like any body of proprietors, though, according to the provision of this indenture, they held not of the New England Council, but of the crown. Apparently, then, the Council, in obedience to the statute Quia Emptores, resigned all its rights of soil and jurisdiction, and left the patentees face to face with the king.1 They soon took advantage of their right to associate others with themselves. A number of east-of-England men became interested in the enterprise, and the result of the impulse which they gave was the procuring of a royal charter in March, 1629, confirming the grant of territory already made and adding thereto full corporate and governmental rights. Now it should be noticed, in the first place, that the Company of Massachusetts Bay in New England, which was created by this grant, was modeled after the London Company organized twenty years before. Provision was made in the charter for a general court, which should meet four times a year during the law terms, and the Easter session of which should be called the court of election. Provision was also made for a governor, deputy-governor and board of eighteen assistants, all of whom should be chosen by the general court. They had powers corresponding to those of the treasurer, his deputy and the council in the London Company. In the Massachusetts board of assis 1 That this grant was not wholly regular is evidenced by the fact that within its bounds was included the territory which the New England Council had granted to Robert Gorges in 1622. Years after, Sir Ferdinando Gorges wrote in his Briefe Narration that, when the Earl of Warwick requested his consent to the issue of the patent to Sir Henry Roswell and his associates, he gave it "so far forth as it might not be prejudiciall" to the interests of his son, Robert Gorges. But apparently those interests were in no way regarded. Baxter, Gorges, II, 51, 59. tants we find no suggestion whatever of a royal council, showing that the old combination of 1606 had been entirely outgrown, and that the way had been cleared for the exercise of royal control directly through the Privy Council or a board of commissioners closely affiliated therewith. The governor, deputy and assistants were also empowered to meet monthly in a court which in function corresponded with the ordinary court of the London Company. In one respect, however, the assistants of the Massachusetts Company had a position different from that of the council in the London corporation under the charter of 1612 six of them, with the governor or deputy-governor, constituted a quorum of the general court, and therefore, according to the common law, must be present whenever business was transacted. Thus the Massachusetts assistants had in the legislative body a distinct place, which did not belong to the Virginia council. All the customary powers were to be exercised by the general court, either directly or through the machinery thus provided. Less elaboration was necessary than in the case of the London Company, because the membership3 of the corporation was by no means as large, and much less business was done. Still we find that the Massachusetts men had their auditors, secretary, treasurer and special committees. Finally, to the general court of the Massachusetts Company, as to that of its progenitor, the power to increase the membership of the body was given. The word freemen also made its appearance in the Massachusetts charter as the designation of the members, whereas in the earlier patents for colonization the terms associates and adventurers had been commonly used. 1 For the doings of such courts of assistants, while the company was resident in England, see Massachusetts Colonial Records, I, 42-44. give and grant 2 The language of the document was as follows: "We do ... that the governor, or . . . the deputy governor . . ., and such of the assistants and freemen of the said company as shall be present, or the greater number of them so assembled, whereof the governor, or deputy governor, and six of the assistants, at the least to be seven, shall have full power," etc. 8 The total membership of the Massachusetts Company was 110, and these included no livery companies and no individuals above the rank of knight. See S. F. Haven, "Introduction to the Records of the Massachusetts Company," Archaeologia Americana, III, 134 et seq. An imitation of the London model so close as that we have described must not be regarded as an accident. The patentees were men from London and the east of England, and were thus more or less conversant with the London Company and its work. They were at least in political sympathy with Sir Edwin Sandys and the other leaders in the London enterprise during the last six years of its existence. If, as was probably the case, they had ever thought of expanding their corporation into a colony, they could not take the New England Council as their model. There was no need of devising a third form of corporation, had that been possible, for the London system gave them what they wanted. Therefore it was chosen, and was so readjusted as to give form to a colony which should be not only democratic in type, but, so far as possible, independent of the mother country. The readjustment was effected by the transfer of the governing body of the corporation into the colony which it was creating. This removal was a fact of the greatest importance not only in the history of New England, but in the development of modern governmental forms, and as such is worthy of detailed study. In passing, moreover, it may be noted that, while the open corporation was being expanded and reproduced in New England, the close corporation of 1620 lost its vitality and disappeared. The legality of the transfer of the corporation of Massachusetts into the colony it is not necessary to discuss at length. The views of writers concerning it have differed widely. The docket attached to the "king's bill" when the charter was drawn indicates that the intention of the king and of his law officers was that the corporation should be resident in England. It mentions the existence in the document of "clauses for ye electing of Governors & Officers here in England," and says that such privileges were bestowed as "are usuallie allowed to Corporacons in England." But in the charter as it passed the great seal are no words which necessitate the residence of the corporation in England. Indeed, Chief Justices Rainsford and 1 Deane, “Forms used in Issuing Letters-Patent," in Proceedings of the Massachusetts Historical Society, 1869, p. 173. North, in an opinion which they delivered in the reign of Charles II, declared that the company was created a corporation on the place. It is not improbable that they were led to this conclusion by interpreting literally the words "in New England," which occur in the name of the corporation. But, however consistent this view may seem to be with the language of the charter, the docket, when taken in connection with the history of the company during the first year of its existence, shows that the corporation became established in New England as the result rather of removal than of original creation. For a year it was actually resident in England, and there transacted its business. Not till about five months after the issue of the charter was the project of removal mentioned in the general court. But that legal obstacles which might have prevented such a step had been carefully removed by the petitioners for the charter, or their advisers, is indicated by the statement made years afterward by Governor Winthrop, that it was intended that the corporation should be resident in England, but "with much difficulty we got it abscinded." 1 The removal of the company's charter into Massachusetts was a matter of slight importance: the important fact was that the governor, the deputy-governor and the majority of the assistants came over. The last court of assistants held in England met on board the Arbella, March 23, 1630; the first session of the court in New England was held at Charlestown, August 23, 1630.2 Although only a part of the patentees ever emigrated, no further sessions of the general court were held in England. It met for the first time in Massachusetts, October 19, 1630.3 But before referring to the changes which took place in its organization and in the motives which underlay its later action, we must note how the business affairs of the company were settled. At the meeting of the company held November 30, 1629, a board of ten, called undertakers, and made up equally of planters and adventurers, was chosen to take charge for seven years of the 1 R. C. Winthrop, Life and Letters of John Winthrop, II, 443. |