39
CHARTERS, CONSTITUTIONS, AND ORDINANCES
CHARTERS, CONSTITUTIONS, AND ORDINANCES
COLONIAL PERIOD
Royal charters, constitutions, ordinances, and other Colonial documents which appear typical, are here included in substance or in part. Historically, they form a part of American constitutionalism, and mark the growing belief in constitutional government.
Of course, many of the royal charters were arbitrary documents, mere monopolies granted by the King, where liberty was specifically of no consideration. Some of these charters were precisely like the charters which British and later Belgian kings granted to traders in Africa. However, because of the character and race of the Colonists involved, these charters frequently attained the dignity of "Colonial Constitutions."
NEW ENGLAND CONFEDERATION
Common undertakings began from the very moment the Colonists arrived. That was because of the Indians and the hardships of a frontier life. Self-government grew naturally. Soon colonies and communities began to trade with each other.
The idea of "confederation" of these various groups of people seems first to have been suggested by Connecticut, early in the 17th century. Wrangling broke out, and the confederation suggested was never organized. But in May, 1643, the articles of the "United Colonies of New-England" were adopted. The new confederation, or "consociation," actually had meetings for about forty years.
The essential parts of the Articles are as follows:
ARTICLES
OF
CONFEDERATION BETWIXT THE PLANTATIONS UNDER THE GOVERNMENT OF THE MASSACHUSETTS, THE PLANTATIONS UNDER THE GOVERNMENT OF PLIMOUTH, THE PLANTATIONS UNDER THE GOVERNMENT OF CONNECTICUT, AND THE GOVERNMENT OF NEW HAVEN, WITH THE PLANTATIONS IN COMBINATION THEREWITH.
Whereas we all came into these parts of America, with one and the same end and ayme, namely, advance the Kingdome of our Lord Jesus Christ, and to enjoy the liberties of the Gospel, in purity with peace; and whereas in our settling (by a wise providence of God) we are further dispersed upon the Sea-Coasts, and Rivers, then was at first intended, so that we cannot (according to our desire) with convenience communicate in one Government, and Jurisdiction; and whereas we live encompassed with people of severall Nations, and strange languages, which hereafter may proved injurious to us, and our posterity: And forasmuch as the Natives have formerly committed sundry insolencies and outranges upon severall Plantations of the English, and have of late combined against us. And seeing by reason of the sad distractions in England, which they have heard of, and by which they know we are hindred both from that humble way of seeking advice, and reaping those comfortable fruits of protection which, at other times, we might well expect; we therefore doe conceive it our bounden duty, without delay, to enter into a present Consotiation amongst our selves, for mutuall help and strength in all our future concernments, that, as in Nation, and Religion, so, in other respects, we be, and continue, One, according to the tenour and true meaning of the ensuing Articles.
I. Wherefore it is fully Agreed and Concluded by and between the parties, or Jurisdictions above named, and they doe joyntly and severally by these presents agree and conclude, That they all be, and henceforth be called by the name of, The United Colonies of New-England.
II. The said United colonies for themselves, and their posterities doe joyntly and severally hereby enter into a firm and perpetuall league of friendship and amity, for offence and defence, mutuall advice and succour, upon all just occasions, both for preserving and propagating the truth, and liberties of the Gospel, . . .
It will be noted that the idea of a federated or confederated American government was already developing. The principal reasons were, of course, military necessity, internal order, and trade.
Article II concerned itself with matters of "offence and defence." This included "preserving and propagating the truth, and liberties of the Gospel." "Liberties of the Gospel," of course, did not mean religious liberty as we understand it today. Many were the witches and poor peaceful Quakers to be burned.
Because of trade, travel became a necessity. So the Articles provided in another part that citizens of all the colonies had the right of travel "without due certificates"; also, that there should be speedy justice to "all Confederates equally"; that prisoners should be given up on warrant of one colony to another. The idea of perpetual union and friendship is several times expressed. The idea of "union forever" had begun.
FIRST CHARTER OF VIRGINA
APRIL 10/20, 1606
I. JAMES, by the Grace of God, King of England, Scotland, France, and Ireland, defender of the Faith, &c. WHEREAS our loving and well-disposed Subjects, Sir Thomas Gates, and Sir George Somers, Knights, Richard Hackluit, Clerk, Prebendary of Westminster, and Edward-Maria Wingfield, Thomas Hanham, and Ralegh Gilbert, Esqrs. William Parker, and George Popham, Gentlemen, and divers others of our loving Subjects, have been humble Suitors unto us, that We would vouchsafe unto them our Licence, to make Habitation, Plantation, and to deduce a Colony of sundry of our People into that Part of America, commonly called VIRGINIA, and other Parts and Territories in America, either appertaining unto us, or which are not now actually possessed by any Christian Prince or People, situate, lying, and being all along the Sea Coasts, between four and thirty Degrees of Northerly Latitude from the Equinoctial Line, and five and forty Degrees of the same Latitude, and in the main Land between the same four and thirty and five and forty Degrees, and the Islands thereunto adjacent, or within one hundred Miles of the Coast thereof;
* * *
III. WE, greatly commending, and graciously accepting of, their Desires for the Furtherance of so noble a Work, which may, by the Providence of Almighty God, hereafter tend to the Glory of his Divine Majesty, in propagating of Christian Religion to such People, as yet live in Darkness and miserable Ignorance of the true Knowledge and Worship of God, and may in time bring the Infidels and Savages, living in those Parts, to human Civility, and to a settled and quiet Government; DO, by these our Letters Patents, graciously accept of, and agree to, their humble and well-being. . . .
The making of Colonial coin was authorized. "Money" became a sore subject within a generation, and remained so until the beginning of the Revolution. The Colonists wanted inflation—paper or tobacco money, something with which to pay their debts. Here is the original authority:
X. AND that they shall, or lawfully may, establish and cause to be made a Coin, to pass current there between the People of those several Colonies, for the more Ease of Traffick and Bargaining between and amongst them and the Natives there, of such Metal, and in such Manner and Form, as the said several Councils there shall limit and appoint.
Of exceptional importance was the extension to the Colonists and their children of the same rights as Englishmen. The fact that they did not enjoy such rights furnished one of the complaints leading to the Revolution.
The provisions (Article XV) are as follows:
XV. ALSO we do, for Us, our Heirs, and SUCCESSORS, DECLARE, by these Presents, that all and every the Persons, being our Subjects, which shall dwell and inhabit within every or any of the said several Colonies and Plantations, and every of their children, which shall happen to be born within any of the Limits and Precincts of the said several Colonies and Plantations, shall HAVE and enjoy all Liberties, Franchises, and Immunities, within any of our other Dominions, to all Intents and Purposes, as if they had been abiding and born, within this our Realm of England, or any other of our said Dominions.
There were numerous reissues of this and other original charters. In the original charters there was no self-government granted. As requirements for increasing self-government developed, more rights were granted by the Government of England.
In each colony there developed the idea of rights for that particular colony, and likewise, because of increasing trade relations with one another, the idea of American rights began to develop.
MASSACHUSETTS BODY OF LIBERTIES,
DECEMBER, 1641
The documentary history of Massachusetts is voluminous. The Massachusetts Body of Liberties contains what is perhaps the Colonists' earliest concept of basic liberties:
A Coppie of the Liberties of the Massachusetts Collonie in New England
The free fruition of such liberties Immunities and priveledges as humanitie, Civilitie, and christianitie call for as due to every man in his place and proportion; without impeachment and Infringement hath ever bene and ever will be the tranquillitie and Stabilitie of Churches and Commonwealths. And the deniall or deprivall thereof, the disturbance if not the ruine of both.
We hould it therfore our dutie and safetie whilst we are about the further establishing of this Government to collect and expresse all such freedomes as for present we foresee may concerne us, and our posteritie after us, And to ratify them with our sollemne consent.
Wee doe therefore this day religiously and unanimously decree and confirme these following Rites, liberties, and priveledges concerneing our Churches, and Civill State to be respectively impartiallie and inviolably enjoyed and observed throughout our Jurisdiction for ever.
I. No mans life shall be taken away, no mans honour or good name shall be stayned, no mans person shall be arested, restrayned, banished, dismembred, nor any wayes punished, no man shall be deprived of his wife or children, no mans goods or estaite shall be taken away from him, nor any way indammaged under Coulor of law, or Countenance of Authoritie, unlesse it be by vertue or equitie of some expresse law of the Country warranting the same, established by a generall Court and sufficiently published, or in case of the defect of a law in any partecular case by the word of god. And in Capitall cases, or in cases concerning dismembring or banishment, according to that word to be judged by the Generall Court.
Note that this is apparently an amplification of the Magna Carta's Law of the Land (Chapter 39).
There follow many immunities and privileges, as well as exemptions. "Fayling of sences," for example, constituted an exemption from military service or public work. Nor could any man's cattle or goods be taken except upon due order of the General Court, and then only when reasonably compensated.
Their attitude toward monopoly is interesting:
9. No monopolies shall be granted or allowed amongst us, but of such new Inventions that are profitable to the Countrie, and that for a short time.
The Town Meeting is described as follows:
12. Every man whether Inhabitant or fforreiner, free or not free shall have libertie to come to any publique Court, Councell, or Towne meeting, and either by speech or writeing to move any lawfull, seasonable, and materiall question, or to present any necessary motion, complaint, petition, Bill or information, whereof that meeting hath proper cognizance, so it be done in convenient time, due order, and respective manner.
Included in this Body of Liberties are "Rites Rules and Liberties concerning Juditiall proceedings." Citizens were protected in both criminal and civil cases. They were entitled to bail, to the right of challenging jurors, to freedom from arrest without cause, and so on. Protected also were the estates of the deceased.
Concerning religious liberty:
58. Civil Authoritie hath power and libertie to see the peace, ordinances and Rules of Christ observed in every church according to his word, so it be done in a Civil and not in an Ecclesiastical way.
59. Civill Authhoritie hath power and libertie to deale with any Church member in a way of Civill Justice, notwithstanding any Church relation, office, or interest.
This so-called religious liberty was of course the opposite of what religious liberty means today.
Married women found certain protections in the courts.
79. If any man at his death shall not leave his wife a competent portion of his estaite, upon just complaint made to the Generall Court she shall be relieved.
But the women got the real break in the matter of being whipped by the husbands. Their husbands could not beat them, unless, of course, in self-defense. Otherwise, wives had to be taken to the police station to get their beating. Here follows the immortal clause:
80. Everie marryed woeman shall be free from bodilie correction or stripes by her husband, unlesse it be in his owne defence upon her assalt. If there be any just cause of correction complaint shall be made to Authoritie assembled in some Court, from which onely she shall receive it.
There follows a listing of various liberties, some of them of real benefit. But take a look at some of the reasons for which you could be put to death:
94. Capital Laws
1.
If any man after legall conviction shall have or worship any other god, but the lord god, he shall be put to death.
Dut. 13. 6. 10
Dut. 17. 2. 6
Ex. 22. 20
2.
If any man or woeman be a witch (that is hath or consulteth with a familiar spirit,) They shall be put to death.
Ex. 22. 18.
Lev. 20. 27.
Dut. 18. 10.
3.
If any person shall Blaspheme the name of god, the father, Sonne of Holie ghost, with direct, expresse, presumptuous or high handed blasphemie, or shall curse god in the like manner, he shall be put to death.
Lev. 24. 15. 16
Notice that the Bible is given as authority in each case. And those in power were the judges of who was a witch, and who had worshipped "any other God but the Lord God." We Americans should remember that these laws were actually enforced in this country—that men and women were burned to death because of difference of opinion, or religious belief.
MARYLAND TOLERATION ACT
APRIL, 1649
In effect, religious tolerance (though it applied only to those "professing Christ") was practiced from the first in Catholic Maryland—as much as a century and a quarter before the American Revolution.
It seems also that people in Maryland were protected from calling each other names. They had no "Reds" or "Communists" in those days, but it was against the law to settle arguments by calling a person
an heretick, Scismatick, Idolator, puritan, Independant, Prespiterian popish priest, Jesuite, Jusited papist, Lutheran, Calvenist, Anabaptist, Brownist, Antinomian, Barrowist, Roundhead, Separatist, or any other name or terme in a reproachfull manner relating to matter of Religion.
And the Act continued:
And whereas the inforceing of the conscience in matters of Religion hath frequently fallen out to be of dangerous Consequence in those commonwealthes where it hath been pratised, And for the more quiett and peaceable governement of this Province, and the better to prserve mutuall Love and amity amongst the Inhabitants thereof. Be it Therefore . . . enacted (except as in this present Act is before Declared and sett forth) that noe person or persons whatsoever within this Province, or the Islands, Ports, Harbors, Creekes, or havens thereunto belonging professing to beleive in Jesus Christ, shall from henceforth bee any waies troubled, Molested or discountenanced for or in respect of his or her religion nor in the free exercise thereof within this Province or the Islands thereunto belonging nor any way compelled to the beleife or exercise of any other Religion against his or her consent, soe as they be not unfaithfull to the Lord Proprietary, or molest or conspire against the civill Government established or to bee established in this Province under him or his heires.
Prohibitions against molestations are set forth in detail. These are followed by penalities for violation. Damages collected were split between the Lord Proprietor and the one damaged. If they were not paid, the offender was severely punished by "publick whipping" (a legal punishment in Maryland even today) and also imprisonment—bail at the discretion of the Lord Proprietor only.
ALBANY PLAN OF UNION
JULY 10, 1754
After the beginning of the 18th century, trouble with the Indians led The Privy Lords of Trade and Plantations, by letter dated September, 1753, to authorize a congress to meet at Albany, New York. The commissioners from Massachusetts were instructed to "enter into articles of union and confederation for the general defence of his Majesty's subjects and interest in North America, as well in time of peace as of war.
The commissioners unanimously adopted a resolution that union was absolutely necessary for their security and defense, and Franklin was appointed to draw up a plan.
Franklin's plan was not approved by any of the colonies, nor by the King, because the Lords of Trade politely double-crossed the Colonists.
Nevertheless the idea of union continued stronger than ever in the minds of the people. If should also be noted that the idea of a constitution was constantly developing in the minds of the Colonists.
In the last paragraph of the Plan of Union the word constitution is used twice. Franklin referred to "this general constitution" and also "this constitution," which to him meant a particular frame or form of government. To him, government and constitution were synonymous. Similarly "the" Constitution of 1789 was regarded by its framers as "this" constitution—that is a constitution, not the only one.
Here follow excerpts from Franklin's, or the Albany, Plan of Union:
PLAN of a proposed UNION of the several Colonies of Massachusetts Bay, New Hampshire, Connecticut, Rhode Island, New York, New Jerseys, Pennsylvania, Maryland, Virginia, North Carolina, and South Carolina, for their mutual defence and security, and for extending the British Settlements in North America.
That humble application be made for an Act of the Parliament of Great Brittian, by virtue of which, one General Government may be formed in America, including all the said Colonies, within, and under which Government each Colony may retain its present constitution, except in the particulars wherein a charge [change] may be directed by the said Act, as hereafter follows.
That the said General Government be administered by a president General, to be appointed & supported by the Crown, and a grand Council to be chosen by the representatives of the people of the several Colonies, meet [met] in their respective assemblies.
That within Months after the passing of such Act, The house of representatives in the several Assemblies, that Happen to be sitting within that time or that shall be specially for that purpose convened, may and shall chose, Members for the Grand Council . . .
Who shall meet for the present time at the City of Philadelphia in Pennsylvania, being called by the President General as soon as conveniently may be after his appointment.
That there shall be a New Election of the Members of the Grand Council every three years, and on the death or resignation of any Member, his place should be supplyed by a new choice at the next sitting of the Assembly of the Colony he represented.
That after the first three years, when the proportion of money arising out of each Colony to the General Treasury can be known, the number of Members to be chosen, for each Colony shall from time to time in all ensuing Elections be regulated by that proportion (yet so as that the Number to be chosen by any one province be not more than seven nor less than two).
That the Grand Council have power to chuse their speaker, and shall neither be dissolved prorogued, nor continue siting longer than six weeks at one time without their own consent, or the special command of the Crown. . . .
That the Assent of the President General be requisite to all Acts of the Grand Council, and that it be his Office and duty to cause them to be carried into execution. . . .
That they raise and pay Soldiers, and build Forts for the defence of any of the Colonies, and equip vessels of Force to guard the Coasts and protect the Trade of the Ocean, Lakes, or great Rivers; but they shall not impress men in any Colonies without the consent of its Legislature. That for those purposes they have power to make Laws and lay and Levy such general duties, imposts or taxes, as to them shall appear most equal and just, considering the ability and other circumstances of the Inhabitants in the several Colonies, and such as may be collected with the least inconvenience to the people, rather discouraging luxury, than loading Industry with unnecessary burthens.—. . .
That the General accounts shall be yearly settled and reported to the several Assemblies.
That a Quorum of the Grand Council impowered to act with the President General, do consist of twenty five Members, among whom there shall be one or more from a majority of the Colonies. That the laws made by them for the purposes aforesaid, shall not be repugnant, but as near as may be agreeable to the Laws of England, and shall be transmitted to the King in Council for approbation, as soon as may be after their passing, and if not disapproved within three years after presentation to remain in Force.
That in case of the death of the President General, the Speaker of the Grand Council for the time being shall succeed, and be vested with the same powers and authority, to continue until the King's pleasure be known.
That all Military Commission Officers, whether for land or sea service, to act under this General constitution . . . in case of vacancy by death or removal of any Officer Civil or Military under this constitution, The Governor of the Province in which such vacancy happens, may appoint till the pleasure of the President General and Grand Council can be known.—That the particular Military as well as Civil establishments in each Colony remain in their present State this General constitution notwithstanding. . . .
RESOLUTION OF THE STAMP ACT CONGRESS
OCTOBER 19, 1765
The Stamp Act had outraged the people of the Colonies. Urged on by the Massachusetts House of Representatives, the Stamp Act Congress met in October of 1765, in New York.
The surrounding circumstances, as well as the document itself, are interesting. In the statement we find the British Government accused of acting "unconstitutionally." Mention is made of right of trial by jury, and rights of "natural born subjects."
Article IX complained of the burdensome duties on the grounds that "from the scarcity of specie, the payment of them [was] absolutely impracticable." The hint—or threat—was also dropped that the restrictions would make it very difficult for anybody to purchase the manufactures of Great Britain.
It is particularly interesting that as many as nine colonies were represented at the Congress—South Carolina, Delaware, Pennsylvania, Maryland, Massachusetts, New Jersey, Rhode Island, Connecticut, and New York.
The Resolution of the Stamp Act Congress is as follows:
The members of this Congress, sincerely devoted, with the warmest sentiments of affection and duty to his Majesty's person and government, inviolably attached to the present happy establishment of the Protestant succession, and with minds deeply impressed by a sense of the present and impending misfortunes of the British colonies on this continent; having considered as maturely as time will permit, the circumstances of the said colonies, esteem it our indispensible duty to make the following declarations of our humble opinion, respecting the most essential rights and liberties of the colonists, and of the grievances under which they labour, by reason of several late acts of parliament.
I. That his Majesty's subjects in these colonies, owe the same allegiance to the crown of Great Britain, that is owing from his subjects born within the realm, and all due subordination to that august body the parliament of Great-Britain.
II. That his Majesty's liege subjects in these colonies, are intitled to all the inherent rights and liberties of his natural born subjects, within the kingdom of Great-Britain.
II. That it is inseparably essential to the freedom of a people, and the undoubted right of Englishmen, that no Taxes be imposed on them but with their own consent, given personally, or by their representatives.
IV. That the people of these colonies are not, and, from their local circumstances, cannot be, represented in the House of Commons in Great-Britain.
V. That the only representatives of the people of these colonies are persons chosen therein by themselves, and that no taxes ever have been, or can be constitutionally imposed on them, but by their respective legislatures.
VI. That all supplies to the crown being free gifts of the people, it is unreasonable and inconsistent with the principles and spirit of the British constitution, for the people of Great-Britain to grant to his Majesty the property of the colonists.
VII. That trial by jury, is the inherent and invaluable right of every British subject in these colonies.
VIII. That the late act of parliament, entitled, An act for granting and applying certain stamp duties, and other duties, in the British colonies and plantations in America, &c. by imposing taxes on the inhabitants of these colonies, and the said act, and several other acts, by extending the jurisdiction of the courts of admiralty beyond its ancient limits, have a manifest tendency to subvert the rights and liberties of the colonists.
IX. That the duties imposed by several late acts of parliament, from the peculiar circumstances of these colonies, will be extremely burthensome and grievous; and from the scarcity of specie, the payment of them absolutely impracticable.
X. That as the profits of the trade of these colonies ultimately center in Great-Britain, to pay for the manufactures which they are obliged to take from thence, they eventually contribute very largely to all supplies granted there to the crown.
XI. That the restrictions imposed by several late acts of parliament on the trade of these colonies, will render them unable to purchase the manufactures of Great-Britian.
XII. That the increase, prosperity and happiness of these colonies, depend on the full and free enjoyments of their rights and liberties, and an intercourse with Great-Britain mutually affectionate and advantageous.
XIII. That it is the right of the British subjects in these colonies to petition the king, or either house of parliament.
Lastly, That it is the indispensible duty of these colonies, to the best of sovereigns, to the mother country, and to themselves, to endeavour by a loyal and dutiful address to his Majesty, and humble applications to both houses of parliament, to procure the repeal of the act for granting and applying certain stamp duties, of all clauses of any other acts of parliament, whereby the jurisdiction of the admiralty is extended as aforesaid, and of the other late acts for the restriction of American commerce.
Of course, many of the royal charters were arbitrary documents, mere monopolies granted by the King, where liberty was specifically of no consideration. Some of these charters were precisely like the charters which British and later Belgian kings granted to traders in Africa. However, because of the character and race of the Colonists involved, these charters frequently attained the dignity of "Colonial Constitutions."
Common undertakings began from the very moment the Colonists arrived. That was because of the Indians and the hardships of a frontier life. Self-government grew naturally. Soon colonies and communities began to trade with each other.
The idea of "confederation" of these various groups of people seems first to have been suggested by Connecticut, early in the 17th century. Wrangling broke out, and the confederation suggested was never organized. But in May, 1643, the articles of the "United Colonies of New-England" were adopted. The new confederation, or "consociation," actually had meetings for about forty years.
The essential parts of the Articles are as follows:
OF
CONFEDERATION BETWIXT THE PLANTATIONS UNDER THE GOVERNMENT OF THE MASSACHUSETTS, THE PLANTATIONS UNDER THE GOVERNMENT OF PLIMOUTH, THE PLANTATIONS UNDER THE GOVERNMENT OF CONNECTICUT, AND THE GOVERNMENT OF NEW HAVEN, WITH THE PLANTATIONS IN COMBINATION THEREWITH.
Whereas we all came into these parts of America, with one and the same end and ayme, namely, advance the Kingdome of our Lord Jesus Christ, and to enjoy the liberties of the Gospel, in purity with peace; and whereas in our settling (by a wise providence of God) we are further dispersed upon the Sea-Coasts, and Rivers, then was at first intended, so that we cannot (according to our desire) with convenience communicate in one Government, and Jurisdiction; and whereas we live encompassed with people of severall Nations, and strange languages, which hereafter may proved injurious to us, and our posterity: And forasmuch as the Natives have formerly committed sundry insolencies and outranges upon severall Plantations of the English, and have of late combined against us. And seeing by reason of the sad distractions in England, which they have heard of, and by which they know we are hindred both from that humble way of seeking advice, and reaping those comfortable fruits of protection which, at other times, we might well expect; we therefore doe conceive it our bounden duty, without delay, to enter into a present Consotiation amongst our selves, for mutuall help and strength in all our future concernments, that, as in Nation, and Religion, so, in other respects, we be, and continue, One, according to the tenour and true meaning of the ensuing Articles.
I. Wherefore it is fully Agreed and Concluded by and between the parties, or Jurisdictions above named, and they doe joyntly and severally by these presents agree and conclude, That they all be, and henceforth be called by the name of, The United Colonies of New-England.
II. The said United colonies for themselves, and their posterities doe joyntly and severally hereby enter into a firm and perpetuall league of friendship and amity, for offence and defence, mutuall advice and succour, upon all just occasions, both for preserving and propagating the truth, and liberties of the Gospel, . . .
It will be noted that the idea of a federated or confederated American government was already developing. The principal reasons were, of course, military necessity, internal order, and trade.
Article II concerned itself with matters of "offence and defence." This included "preserving and propagating the truth, and liberties of the Gospel." "Liberties of the Gospel," of course, did not mean religious liberty as we understand it today. Many were the witches and poor peaceful Quakers to be burned.
Because of trade, travel became a necessity. So the Articles provided in another part that citizens of all the colonies had the right of travel "without due certificates"; also, that there should be speedy justice to "all Confederates equally"; that prisoners should be given up on warrant of one colony to another. The idea of perpetual union and friendship is several times expressed. The idea of "union forever" had begun.
APRIL 10/20, 1606
I. JAMES, by the Grace of God, King of England, Scotland, France, and Ireland, defender of the Faith, &c. WHEREAS our loving and well-disposed Subjects, Sir Thomas Gates, and Sir George Somers, Knights, Richard Hackluit, Clerk, Prebendary of Westminster, and Edward-Maria Wingfield, Thomas Hanham, and Ralegh Gilbert, Esqrs. William Parker, and George Popham, Gentlemen, and divers others of our loving Subjects, have been humble Suitors unto us, that We would vouchsafe unto them our Licence, to make Habitation, Plantation, and to deduce a Colony of sundry of our People into that Part of America, commonly called VIRGINIA, and other Parts and Territories in America, either appertaining unto us, or which are not now actually possessed by any Christian Prince or People, situate, lying, and being all along the Sea Coasts, between four and thirty Degrees of Northerly Latitude from the Equinoctial Line, and five and forty Degrees of the same Latitude, and in the main Land between the same four and thirty and five and forty Degrees, and the Islands thereunto adjacent, or within one hundred Miles of the Coast thereof;
* * *
III. WE, greatly commending, and graciously accepting of, their Desires for the Furtherance of so noble a Work, which may, by the Providence of Almighty God, hereafter tend to the Glory of his Divine Majesty, in propagating of Christian Religion to such People, as yet live in Darkness and miserable Ignorance of the true Knowledge and Worship of God, and may in time bring the Infidels and Savages, living in those Parts, to human Civility, and to a settled and quiet Government; DO, by these our Letters Patents, graciously accept of, and agree to, their humble and well-being. . . .
The making of Colonial coin was authorized. "Money" became a sore subject within a generation, and remained so until the beginning of the Revolution. The Colonists wanted inflation—paper or tobacco money, something with which to pay their debts. Here is the original authority:
X. AND that they shall, or lawfully may, establish and cause to be made a Coin, to pass current there between the People of those several Colonies, for the more Ease of Traffick and Bargaining between and amongst them and the Natives there, of such Metal, and in such Manner and Form, as the said several Councils there shall limit and appoint.
Of exceptional importance was the extension to the Colonists and their children of the same rights as Englishmen. The fact that they did not enjoy such rights furnished one of the complaints leading to the Revolution.
The provisions (Article XV) are as follows:
XV. ALSO we do, for Us, our Heirs, and SUCCESSORS, DECLARE, by these Presents, that all and every the Persons, being our Subjects, which shall dwell and inhabit within every or any of the said several Colonies and Plantations, and every of their children, which shall happen to be born within any of the Limits and Precincts of the said several Colonies and Plantations, shall HAVE and enjoy all Liberties, Franchises, and Immunities, within any of our other Dominions, to all Intents and Purposes, as if they had been abiding and born, within this our Realm of England, or any other of our said Dominions.
There were numerous reissues of this and other original charters. In the original charters there was no self-government granted. As requirements for increasing self-government developed, more rights were granted by the Government of England.
In each colony there developed the idea of rights for that particular colony, and likewise, because of increasing trade relations with one another, the idea of American rights began to develop.
DECEMBER, 1641
The documentary history of Massachusetts is voluminous. The Massachusetts Body of Liberties contains what is perhaps the Colonists' earliest concept of basic liberties:
The free fruition of such liberties Immunities and priveledges as humanitie, Civilitie, and christianitie call for as due to every man in his place and proportion; without impeachment and Infringement hath ever bene and ever will be the tranquillitie and Stabilitie of Churches and Commonwealths. And the deniall or deprivall thereof, the disturbance if not the ruine of both.
We hould it therfore our dutie and safetie whilst we are about the further establishing of this Government to collect and expresse all such freedomes as for present we foresee may concerne us, and our posteritie after us, And to ratify them with our sollemne consent.
Wee doe therefore this day religiously and unanimously decree and confirme these following Rites, liberties, and priveledges concerneing our Churches, and Civill State to be respectively impartiallie and inviolably enjoyed and observed throughout our Jurisdiction for ever.
I. No mans life shall be taken away, no mans honour or good name shall be stayned, no mans person shall be arested, restrayned, banished, dismembred, nor any wayes punished, no man shall be deprived of his wife or children, no mans goods or estaite shall be taken away from him, nor any way indammaged under Coulor of law, or Countenance of Authoritie, unlesse it be by vertue or equitie of some expresse law of the Country warranting the same, established by a generall Court and sufficiently published, or in case of the defect of a law in any partecular case by the word of god. And in Capitall cases, or in cases concerning dismembring or banishment, according to that word to be judged by the Generall Court.
Note that this is apparently an amplification of the Magna Carta's Law of the Land (Chapter 39).
There follow many immunities and privileges, as well as exemptions. "Fayling of sences," for example, constituted an exemption from military service or public work. Nor could any man's cattle or goods be taken except upon due order of the General Court, and then only when reasonably compensated.
Their attitude toward monopoly is interesting:
9. No monopolies shall be granted or allowed amongst us, but of such new Inventions that are profitable to the Countrie, and that for a short time.
The Town Meeting is described as follows:
12. Every man whether Inhabitant or fforreiner, free or not free shall have libertie to come to any publique Court, Councell, or Towne meeting, and either by speech or writeing to move any lawfull, seasonable, and materiall question, or to present any necessary motion, complaint, petition, Bill or information, whereof that meeting hath proper cognizance, so it be done in convenient time, due order, and respective manner.
Included in this Body of Liberties are "Rites Rules and Liberties concerning Juditiall proceedings." Citizens were protected in both criminal and civil cases. They were entitled to bail, to the right of challenging jurors, to freedom from arrest without cause, and so on. Protected also were the estates of the deceased.
Concerning religious liberty:
58. Civil Authoritie hath power and libertie to see the peace, ordinances and Rules of Christ observed in every church according to his word, so it be done in a Civil and not in an Ecclesiastical way.
59. Civill Authhoritie hath power and libertie to deale with any Church member in a way of Civill Justice, notwithstanding any Church relation, office, or interest.
This so-called religious liberty was of course the opposite of what religious liberty means today.
Married women found certain protections in the courts.
79. If any man at his death shall not leave his wife a competent portion of his estaite, upon just complaint made to the Generall Court she shall be relieved.
But the women got the real break in the matter of being whipped by the husbands. Their husbands could not beat them, unless, of course, in self-defense. Otherwise, wives had to be taken to the police station to get their beating. Here follows the immortal clause:
80. Everie marryed woeman shall be free from bodilie correction or stripes by her husband, unlesse it be in his owne defence upon her assalt. If there be any just cause of correction complaint shall be made to Authoritie assembled in some Court, from which onely she shall receive it.
There follows a listing of various liberties, some of them of real benefit. But take a look at some of the reasons for which you could be put to death:
1.
If any man after legall conviction shall have or worship any other god, but the lord god, he shall be put to death.
Dut. 13. 6. 10
Dut. 17. 2. 6
Ex. 22. 20
If any man or woeman be a witch (that is hath or consulteth with a familiar spirit,) They shall be put to death.
Ex. 22. 18.
Lev. 20. 27.
Dut. 18. 10.
If any person shall Blaspheme the name of god, the father, Sonne of Holie ghost, with direct, expresse, presumptuous or high handed blasphemie, or shall curse god in the like manner, he shall be put to death.
Lev. 24. 15. 16
Notice that the Bible is given as authority in each case. And those in power were the judges of who was a witch, and who had worshipped "any other God but the Lord God." We Americans should remember that these laws were actually enforced in this country—that men and women were burned to death because of difference of opinion, or religious belief.
APRIL, 1649
In effect, religious tolerance (though it applied only to those "professing Christ") was practiced from the first in Catholic Maryland—as much as a century and a quarter before the American Revolution.
It seems also that people in Maryland were protected from calling each other names. They had no "Reds" or "Communists" in those days, but it was against the law to settle arguments by calling a person
an heretick, Scismatick, Idolator, puritan, Independant, Prespiterian popish priest, Jesuite, Jusited papist, Lutheran, Calvenist, Anabaptist, Brownist, Antinomian, Barrowist, Roundhead, Separatist, or any other name or terme in a reproachfull manner relating to matter of Religion.
And the Act continued:
And whereas the inforceing of the conscience in matters of Religion hath frequently fallen out to be of dangerous Consequence in those commonwealthes where it hath been pratised, And for the more quiett and peaceable governement of this Province, and the better to prserve mutuall Love and amity amongst the Inhabitants thereof. Be it Therefore . . . enacted (except as in this present Act is before Declared and sett forth) that noe person or persons whatsoever within this Province, or the Islands, Ports, Harbors, Creekes, or havens thereunto belonging professing to beleive in Jesus Christ, shall from henceforth bee any waies troubled, Molested or discountenanced for or in respect of his or her religion nor in the free exercise thereof within this Province or the Islands thereunto belonging nor any way compelled to the beleife or exercise of any other Religion against his or her consent, soe as they be not unfaithfull to the Lord Proprietary, or molest or conspire against the civill Government established or to bee established in this Province under him or his heires.
Prohibitions against molestations are set forth in detail. These are followed by penalities for violation. Damages collected were split between the Lord Proprietor and the one damaged. If they were not paid, the offender was severely punished by "publick whipping" (a legal punishment in Maryland even today) and also imprisonment—bail at the discretion of the Lord Proprietor only.
JULY 10, 1754
After the beginning of the 18th century, trouble with the Indians led The Privy Lords of Trade and Plantations, by letter dated September, 1753, to authorize a congress to meet at Albany, New York. The commissioners from Massachusetts were instructed to "enter into articles of union and confederation for the general defence of his Majesty's subjects and interest in North America, as well in time of peace as of war.
The commissioners unanimously adopted a resolution that union was absolutely necessary for their security and defense, and Franklin was appointed to draw up a plan.
Franklin's plan was not approved by any of the colonies, nor by the King, because the Lords of Trade politely double-crossed the Colonists.
Nevertheless the idea of union continued stronger than ever in the minds of the people. If should also be noted that the idea of a constitution was constantly developing in the minds of the Colonists.
In the last paragraph of the Plan of Union the word constitution is used twice. Franklin referred to "this general constitution" and also "this constitution," which to him meant a particular frame or form of government. To him, government and constitution were synonymous. Similarly "the" Constitution of 1789 was regarded by its framers as "this" constitution—that is a constitution, not the only one.
Here follow excerpts from Franklin's, or the Albany, Plan of Union:
PLAN of a proposed UNION of the several Colonies of Massachusetts Bay, New Hampshire, Connecticut, Rhode Island, New York, New Jerseys, Pennsylvania, Maryland, Virginia, North Carolina, and South Carolina, for their mutual defence and security, and for extending the British Settlements in North America.
That humble application be made for an Act of the Parliament of Great Brittian, by virtue of which, one General Government may be formed in America, including all the said Colonies, within, and under which Government each Colony may retain its present constitution, except in the particulars wherein a charge [change] may be directed by the said Act, as hereafter follows.
That the said General Government be administered by a president General, to be appointed & supported by the Crown, and a grand Council to be chosen by the representatives of the people of the several Colonies, meet [met] in their respective assemblies.
That within Months after the passing of such Act, The house of representatives in the several Assemblies, that Happen to be sitting within that time or that shall be specially for that purpose convened, may and shall chose, Members for the Grand Council . . .
Who shall meet for the present time at the City of Philadelphia in Pennsylvania, being called by the President General as soon as conveniently may be after his appointment.
That there shall be a New Election of the Members of the Grand Council every three years, and on the death or resignation of any Member, his place should be supplyed by a new choice at the next sitting of the Assembly of the Colony he represented.
That after the first three years, when the proportion of money arising out of each Colony to the General Treasury can be known, the number of Members to be chosen, for each Colony shall from time to time in all ensuing Elections be regulated by that proportion (yet so as that the Number to be chosen by any one province be not more than seven nor less than two).
That the Grand Council have power to chuse their speaker, and shall neither be dissolved prorogued, nor continue siting longer than six weeks at one time without their own consent, or the special command of the Crown. . . .
That the Assent of the President General be requisite to all Acts of the Grand Council, and that it be his Office and duty to cause them to be carried into execution. . . .
That they raise and pay Soldiers, and build Forts for the defence of any of the Colonies, and equip vessels of Force to guard the Coasts and protect the Trade of the Ocean, Lakes, or great Rivers; but they shall not impress men in any Colonies without the consent of its Legislature. That for those purposes they have power to make Laws and lay and Levy such general duties, imposts or taxes, as to them shall appear most equal and just, considering the ability and other circumstances of the Inhabitants in the several Colonies, and such as may be collected with the least inconvenience to the people, rather discouraging luxury, than loading Industry with unnecessary burthens.—. . .
That the General accounts shall be yearly settled and reported to the several Assemblies.
That a Quorum of the Grand Council impowered to act with the President General, do consist of twenty five Members, among whom there shall be one or more from a majority of the Colonies. That the laws made by them for the purposes aforesaid, shall not be repugnant, but as near as may be agreeable to the Laws of England, and shall be transmitted to the King in Council for approbation, as soon as may be after their passing, and if not disapproved within three years after presentation to remain in Force.
That in case of the death of the President General, the Speaker of the Grand Council for the time being shall succeed, and be vested with the same powers and authority, to continue until the King's pleasure be known.
That all Military Commission Officers, whether for land or sea service, to act under this General constitution . . . in case of vacancy by death or removal of any Officer Civil or Military under this constitution, The Governor of the Province in which such vacancy happens, may appoint till the pleasure of the President General and Grand Council can be known.—That the particular Military as well as Civil establishments in each Colony remain in their present State this General constitution notwithstanding. . . .
OCTOBER 19, 1765
The Stamp Act had outraged the people of the Colonies. Urged on by the Massachusetts House of Representatives, the Stamp Act Congress met in October of 1765, in New York.
The surrounding circumstances, as well as the document itself, are interesting. In the statement we find the British Government accused of acting "unconstitutionally." Mention is made of right of trial by jury, and rights of "natural born subjects."
Article IX complained of the burdensome duties on the grounds that "from the scarcity of specie, the payment of them [was] absolutely impracticable." The hint—or threat—was also dropped that the restrictions would make it very difficult for anybody to purchase the manufactures of Great Britain.
It is particularly interesting that as many as nine colonies were represented at the Congress—South Carolina, Delaware, Pennsylvania, Maryland, Massachusetts, New Jersey, Rhode Island, Connecticut, and New York.
The Resolution of the Stamp Act Congress is as follows:
The members of this Congress, sincerely devoted, with the warmest sentiments of affection and duty to his Majesty's person and government, inviolably attached to the present happy establishment of the Protestant succession, and with minds deeply impressed by a sense of the present and impending misfortunes of the British colonies on this continent; having considered as maturely as time will permit, the circumstances of the said colonies, esteem it our indispensible duty to make the following declarations of our humble opinion, respecting the most essential rights and liberties of the colonists, and of the grievances under which they labour, by reason of several late acts of parliament.
I. That his Majesty's subjects in these colonies, owe the same allegiance to the crown of Great Britain, that is owing from his subjects born within the realm, and all due subordination to that august body the parliament of Great-Britain.
II. That his Majesty's liege subjects in these colonies, are intitled to all the inherent rights and liberties of his natural born subjects, within the kingdom of Great-Britain.
II. That it is inseparably essential to the freedom of a people, and the undoubted right of Englishmen, that no Taxes be imposed on them but with their own consent, given personally, or by their representatives.
IV. That the people of these colonies are not, and, from their local circumstances, cannot be, represented in the House of Commons in Great-Britain.
V. That the only representatives of the people of these colonies are persons chosen therein by themselves, and that no taxes ever have been, or can be constitutionally imposed on them, but by their respective legislatures.
VI. That all supplies to the crown being free gifts of the people, it is unreasonable and inconsistent with the principles and spirit of the British constitution, for the people of Great-Britain to grant to his Majesty the property of the colonists.
VII. That trial by jury, is the inherent and invaluable right of every British subject in these colonies.
VIII. That the late act of parliament, entitled, An act for granting and applying certain stamp duties, and other duties, in the British colonies and plantations in America, &c. by imposing taxes on the inhabitants of these colonies, and the said act, and several other acts, by extending the jurisdiction of the courts of admiralty beyond its ancient limits, have a manifest tendency to subvert the rights and liberties of the colonists.
IX. That the duties imposed by several late acts of parliament, from the peculiar circumstances of these colonies, will be extremely burthensome and grievous; and from the scarcity of specie, the payment of them absolutely impracticable.
X. That as the profits of the trade of these colonies ultimately center in Great-Britain, to pay for the manufactures which they are obliged to take from thence, they eventually contribute very largely to all supplies granted there to the crown.
XI. That the restrictions imposed by several late acts of parliament on the trade of these colonies, will render them unable to purchase the manufactures of Great-Britian.
XII. That the increase, prosperity and happiness of these colonies, depend on the full and free enjoyments of their rights and liberties, and an intercourse with Great-Britain mutually affectionate and advantageous.
XIII. That it is the right of the British subjects in these colonies to petition the king, or either house of parliament.
Lastly, That it is the indispensible duty of these colonies, to the best of sovereigns, to the mother country, and to themselves, to endeavour by a loyal and dutiful address to his Majesty, and humble applications to both houses of parliament, to procure the repeal of the act for granting and applying certain stamp duties, of all clauses of any other acts of parliament, whereby the jurisdiction of the admiralty is extended as aforesaid, and of the other late acts for the restriction of American commerce.
