This chapter examines England’s early colonies in America from a legal and constitutional perspective. To do so, it adapts and abridges material from the book by Peter C. Hoffer that was also used in Module 1, Law and People in Colonial America, pp. 10-24. After the introduction here below, which discusses how such charters worked overall, the next two sections of this chapter introduce the charters for the first two colonies in Virginia (founded in 1607) and Plymouth (founded in 1620). Although modern people sometimes refer to Plymouth as being part of Massachusetts, this name was formally the title of another colony, Massachusetts Bay, which was founded in 1630 just to the north of Plymouth, with its center in Boston. It was only in 1691 that these two colonies were combined into one, creating the larger colony that would later become the state of Massachusetts.

Charters for Companies and Proprietors

The growth of England’s overseas trade provided capital for the exploration of the New World. Investors joined together in companies, calling themselves “merchant adventurers,” which referred to the fact that they “ventured,” or risked, their money, not that they went abroad themselves. Instead, they invested money in ships and passengers and hoped to profit from any lucrative exchanges or discoveries that might be made; their fondest hope was that gold or silver would be found.

The crown assisted this impulse by financing a few exploratory voyages, but above by chartering lim­ited joint stock companies for trade in the Baltic, the Mediterranean, the East Indies, and finally the New World. The English were very late into this game; the Portuguese, Spanish, French, and Dutch had made landfall on the west coast of the Atlan­tic before any real effort was under way in England. The first English thrust, Italian mariner John Cabot’s brief voyage of 1497, was not exploited until nearly a century later.

A group of men from western England led by Walter Raleigh, Raleigh’s brother-in-law Humphrey Gilbert, John Hawkins, Francis Drake, and their kin com­bined plunder of Spanish treasure ships with voyages of exploration under licenses from Queen Elizabeth (1558-1603). The West Country men not only charted the coast of North America, they also began to leave small outposts behind. Fishing fleets on the outer banks of Newfoundland, small settlements in what John Smith would later call “New England,” and abortive fortresses on the coasts of Virginia and the Carolinas marked these first ventures.

In the sea chest of every “sea dog” like Humphrey Gilbert was a royal charter empowering the settlement of new lands. To him and his heirs, if he should survive and succeed ( although he died at sea in point of fact), Elizabeth promised “all the soil of all such lands, countries, and territories so to be discovered or possessed as aforesaid, and of all cities, castles, townes, and villages, and palaces in the same.” There were no castles or palaces where Gilbert was going; Elizabeth’s legal draftsmen were thinking of the Spanish conquest of Mexico and its treasures–but then, so was Gilbert.

If gold and silver could not be ex­tracted, there were animal pelts to be purchased, forests to be stripped, and staple crops to be grown, harvested, and sold through English middlemen. Beaver and deer skins and tobacco were cash crops, the former obtained through the assistance of the Native Americans, the latter through the disposses­sion of Native Americans. Agreements between the crown and companies of merchants, individual explorers, and proprietors granted land as pay­ment for political or military service to the crown.

The charters that the crown gave to private individuals or groups combined the old and the new. King James I (1603-25), a proponent of the divine-right theory of monarchy, relied on his personal authority, not common law or parliamen­tary statute, to grant letters patent to the Virginia Companies of London and Plymouth. After all, he believed that the New World, or whatever part of it he could keep free of French, Dutch, Swedish, Portuguese, and Spanish rivals, was his to bestow.

The charter for the Virginia Company of London of 1606 thus com­bined remnants of feudal vassalage with harbingers of nascent capital­ism. The former resonated in the language of “homage.” The feudal knight was his lord’s “man”; and the entire feudal world was a hierarchy stretching from the lowliest peasant through the nobility up to God. The king could rely on the assistance of his men in time of war; in turn, he rewarded them with the use of land.

“Fee simple” amounted to owner­ship, with the ability to sell and will the land away. Leasehold and copy­hold were more limited bundles of rights to the land. Relics of this feudal system abounded in the language of the Virginia charter. Land was granted to proprietors of the New World colonies in free and com­mon socage as of the manor of East Greenwich, an old military formula that, translated, meant that the king would exact no rents or duties from the grantee but expected the recipient to defend the grant against the enemies of the king as feudal grantees had once defended the English border against raiders.

Another set of symbols of medieval sovereignty appeared in the char­ters. Medieval Christian kings could conquer and grant lands held by pagans or infidels because Christians were defenders of the true faith, according to the doctrine of “Christian conquest,” or the “discovery doctrine,” which dated from the Crusades. “Holy wars” among the armies of Christian princes and Mos­lem lords were “conceived by the warriors as a struggle between a ‘justified’ or saintly army engaged in acts of piety against a demonic and damned enemy committing sacrilege.”

Elizabeth’s and James I’s law­yers adapted this doctrine to empower the freebooting of the Drakes and Gilberts who served the cause of English empire. Under such doc­trines Native Americans’ rights were extinguished.

Elements of the language of the charter also were drawn from me­dieval borough franchises that the crown granted to individuals and groups, another quid pro quo whereby the crown gained taxes and manpower in return for a concession of limited self-government. Un­der such charters towns could hold their own councils and pass ordi­nances of government. These grants of privilege were the legal precur­sors of colonial assemblies.

The Tudors thus tried to raise money both by reviving feudal obligations and by layering commercial compacts on top of them. The grantees were not only to guard the king’s new frontier in America, they were to share its wealth with the crown.

The theory of “mercantilism“-the term itself would be coined much later-required that wealth flow from the colonies into the mother country and that the mother country monitor and manage trade in both directions. Although the doctrines supporting mercantilism were not fully articulated in England until the second half of the sev­enteenth century, the English crown was aware of the favorable balance of trade in the Portuguese and Spanish empires. The fruits of empire had made these nations powers in Europe out of proportion to their natural resources and geographical size.

The Spanish empire, in theory at least, was highly centralized, but the English tried another route. James I graciously granted to the first Virginians “all liberties, franchises, and immunities… as if they had been abiding… within this our realm of England.” The company and its representatives had license to trade and prevent any others, within or without the colony, from theft or plunder.

In this way England’s rulers acquired an empire in a decidedly ad-hoc fashion, granting their seal of approval to various individuals or groups who approached them willing to finance their own voyages. Corporate charters were those granted to a merchant company, like those that first created lasting settlements in both Virginia (1607) and Plymouth (1620). The kings also granted proprietorial charters to courtiers or well-connected individuals, like those that gave Lord Baltimore land in Maryland (1632) or William Penn in Pennsylvania (1681).

At least as the law was understood in the seventeenth century, the grantee remained the servant of the king, and thus the king could always rescind the grant. In fact, Charles I would take back the Virginia Company charter in 1624, and his son dissolved the Massachusetts Bay Colony charter sixty years later. In Virginia’s case the company’s bankruptcy led James to make Virginia the first royal colony, which was ruled directly by a governor appointed by the king. Royal colonies remained rare in the seventeenth century, but became more common in the eighteenth.

The charters also set a precedent for merging private and public law. The merchant companies were private ventures under English law. At the same time, the crown was aware that the colonies would be small polities; in effect the charter was a form of public incorporation. The drafters of the charter thus required that the laws the merchant adventurers made in their own settlements must be “near as conveniently may be to the form of the laws and policy of England;” laws “repugnant” to those of England would be considered void. Such “non-repugnancy” clauses were a standard feature of most colonial charters, and this concept would carry over into the founding period’s understanding of the proper relation between state and federal laws.

Even more vital, the crown lawyers re­minded the merchant adventurers that they and their men were to act as true servants of the crown. In return for their allegiance they secured “all the privileges of free denizens and persons native of England.”

The vagueness of the language of these contracts, made even more indistinct by the distance and difference between the center of empire in West­minster and the wooded vastness of Virginia and New England, per­mitted the colonists to exercise a degree of self-government not encom­passed in the wording of the charter.

But in fact the early colonies’ relative independence did not develop just because of vague wording. Given the colonies’ vast distance from England, their small size for much of the seventeenth century, and their lack of any really tantalizing riches, the crown had no interest in investing heavily, or even hardly at all, in their administration. In any case such an expenditure of resources became all but impossible after the outbreak of the English Civil War and the ensuing interregnum (1642-59).

In sum, England’s haphazard accumulation of territories across the Atlantic over the seventeenth century represented at first less a coherent “empire” than a decentralized collection of semi­private ventures and effectively self-governing communities.