COLONIAL CHARTERS

Perhaps no other American constitutional topic has been subject to such changing and contrary interpretations as has that of colonial charters. For example, george bancroft, who in 1834 had written that the Massachusetts charter of 1629 "established a corporation, like other corporations within the realm," wrote in 1883 that the charter "constituted a body politic by the name of the Governor and Company of the Massachusetts Bay." Bancroft's apparent inconsistency is less contradiction than part of a constitutional controversy. Even during the colonial period constitutional experts disagreed about the legal nature of charters.

A few North American colonies (Plymouth, New Haven) had no charters. Most did, however, and the earliest charters were of two types. The first (Virginia, Massachusetts Bay), modeled on trading company charters granted to merchants, stressed commerce and settlement. The second (Maryland, Maine, Carolina) was based on the palatinate bishopric of Durham County, England. Later, a third type of charter was issued: "royal" charters for colonies in which the governor and other designated officers were appointed by the Crown. Containing more provisions directing government functions, royal charters generally defined a colony's relations with the mother country, not its internal constitution. No matter the type, charters were statements of privileges, not organic acts of government; they conferred immunities from prosecution and did not define structures of governance. Colonial charters, therefore, did not contribute significantly to constitutional law or history except when Americans claimed immunity from parliamentary authority.

American legal theory held that charters were contracts by which the king promised to protect and defend his American subjects in exchange for the subjects' allegiance. A better theory was that charters were evidence of a contract between the English crown and the first settlers of America. By either theory charters were not constitutions but one of the sources of constitutional rights along with the ancient English constitution, the current British constitution, the original contract, the second original contract, common law, custom, and, to a minor degree, natural law. The first charter of Virginia stated a principle, repeated in later Virginia charters and in the charters of several other colonies, that the colonists "shall have and enjoy all Liberties, Franchises, and Immunities … to all Intents and Purposes as if they had been abiding and born within this our Realm of England.…" Americans of the Revolutionary period read such provisions as supporting their constitutional arguments against Britain. The legal theory subscribed to on the imperial side of the controversy held that charters created corporations not unlike municipal and commercial corporations in the mother country. As joseph galloway declared, the colonies were only "corporations, or subordinate bodies politic, vested with legislative powers, to regulate their own internal police, under certain regulations and restrictions, and no more." A more extreme imperial theory held that charters were irrelevant; that the powers and limitations of colonial government came not from charters but from the instructions that British ministers issued to colonial governors. This theory, which American legislatures repudiated, contributed to the coming of the Revolution.

The American theory that charters were inviolable contracts confirming inalienable rights was premised on Old Whig constitutional definitions of limited government which still enjoyed some support in Britain during the second half of the eighteenth century and found expression in arguments that Parliament lacked constitutional authority to revoke or amend charters. This argument had little support in Britain, where all charters were viewed as revocable. In fact, a majority of colonies had their charters revoked and regranted at various times by the British government. Indeed, no single action so provoked the american revolution as the Massachusetts Government Act asserting the authority of Parliament to amend colonial charters by unilateral decision.

When the Revolution commenced there were only two proprietary charters (Pennsylvania, Maryland) and two corporate charters (Connecticut, Rhode Island). Remaining colonies had royal charters, except Quebec and Georgia, which were governed by instructions. When Americans began to draft organic acts, they came more and more to think of charters as constitutions. To resist the Massachusetts Government Act, which revoked the charter of 1691, colonial leaders gave consideration to "resuming" the original charter of 1629 granted by Charles I. Connecticut and Rhode Island retained their charters as state constitutions, Connecticut until 1818 and Rhode Island until 1843.

John Phillip Reid
(1986)

Bibliography

Reid, John Phillip 1976 In the First Line of Defense: The Colonial Charters, the Stamp Act Debate and the Coming of the American Revolution. New York University Law Review 51:177–215.