THE seventeenth century in American history is marked by the rise and the decline of the system of chartered colonies; this is its chief characteristic. By the term “chartered colonies” are meant the corporate colonies of New England and the proprietary provinces, all of which originated in grants from the British crown. Such grants were indeed the instruments by which the other colonies also were founded, and their development embodied the contributions of private and local enterprise to the general movement. Their founders and settlers bore the risks, hardships and losses which were incident to the beginnings of colonization. And indeed it is hardly supposable that English colonization could have begun in any other way; for the financial risks connected with the enterprise were so great that neither lord treasurers nor monarchs could have been induced to assume them. But by the close of the century all the colonies of this type had suffered temporary eclipse, and nearly all of them had permanently disappeared. Royal provinces had taken their place. This is the most important and significant transition in American history prior to the colonial revolt; and, though the events connected with it are very familiar, I shall venture again to call attention to a few of them.

     This transition was effected in part by causes operative within the colonies themselves, and in part by pressure from the home government. Internal changes were chiefly active in the proprietary provinces, and least so in the corporate colonies of New England. The latter attained at the outset an organization which suited their needs and temper. Under it for nearly half a century they enjoyed de facto self-government, and they were under no temptation to change it for anything essentially different. In the proprietary provinces conditions

were by no means so stable. The inefficient administration of many of the proprietors, the narrow pseudo-dynastic policy of others, the confusion which sometimes resulted from doubt as to the governmental or territorial rights of proprietors, not infrequently led the colonists to prefer government by the crown. Against not a few phases of proprietary government when at its best the people were always protesting, with the result that gradually the powers of the proprietor were limited and thereby the institutions and political life of the province were broadened and strengthened. It may be said that in every case the transition from a proprietary to a royal province resulted in improvement. We hear of very few, if any, demands for the restoration of the proprietary system when once abandoned, while demands and agitation having as their object the substitution of royal for proprietary government were common. They occurred on a considerable scale in Maryland, the Carolinas and Pennsylvania. Virginia very soon became reconciled to the dissolution of the company, and repudiated efforts for its reestablishment.

     But it is not with this phase of the transition that we are now concerned. Instead of further considering the internal causes which operated to bring in the system of royal provinces, the attention of the reader is directed to those which proceeded from the home government. We have to do in this division of the subject with the beginnings of the British Empire, of which the American colonies were then a part. The maintenance of a system of control was the essential function of the sovereign power in the development of that empire. The process by which this system of control was developed was not foreign to the colonies, though it was external to them; it was a part and a condition of their existence. When properly exercised, this control was not a meddlesome interference, but was just as necessary and inevitable as were the tendencies toward isolation and independence in the colonies themselves. Under the Romano-feudal system colonization of the Greek type did not exist. Had the colonies not been subject to control along the lines in which sovereign power

is accustomed to act, they would not have been dependencies, but something other than that. The historian’s task, in this connection, is to trace the growth of this imperial system and to note the action and reaction of the opposing tendencies within it. If either is ignored, or its legitimacy discredited, half the meaning of the period will be lost.

     The organs of government through which executive control over the colonies was exercised were essentially the same in the reign of James I that they were in the reign of George III. They were, besides the sovereign himself, the secretaries of state, the privy council, the commissioners of the treasury, the commissioners of the admiralty, the law officers of the crown, the courts of law and—to be determined by events—either the Archbishop of Canterbury or the Bishop of London. Committees or commissions subordinate to the privy council—like the commissioners of trade and plantations—or subordinate to the treasury board—like the commissioners of the customs—were subsequently added, but they made no fundamental change. They were mainly boards of inquiry and report, charged with special duties in detail, and when they took positive action it was by virtue of some permanent or special order from the king, privy council or treasury board. Behind them all stood Parliament, with the unlimited possibilities attaching to it as a regulative power. Every act which the two houses chose to pass and the king to accept, in which the dominions were mentioned, might be enforced in the colonies by the judicial and administrative bodies to which reference has just been made. And in fact the Acts of Supremacy and Uniformity of Elizabeth, together with the severe legislation passed against the Catholics in the later years of her reign and immediately after the Gunpowder Plot, all referred to the dominions, as well as to the realm, and could legally have been enforced in the former. Instructions were actually issued for the administration of the oaths in Virginia, and the fact that they were tendered to Lord Baltimore on his visit there is well known. They could have been used against Protestant dissenters just as well as against Catholics.

     During the period prior to 1642 the privy council was by all means the chief administrative body. Its activity as an executive board was incessant, while at the same time it possessed extensive judicial powers. The secretaries of state were then clearly subordinate to it and to the king, though later, with the establishment of cabinet government, they came to occupy in large measure the place previously held by the council in colonial administration. The entries in the Calendars of State Papers show that before 1642 the activity of the privy council in colonial affairs was greater than at any subsequent time. In 1634 very sweeping powers were given to the board of commissioners of foreign plantations, which consisted of privy councillors, and which one would infer was expected to deal in some cases directly with the king. The then Archbishop of Canterbury was its moving spirit, and, had its period of activity been prolonged, it would probably have been dominated by considerations mainly ecclesiastical. The extent of its powers would indicate that the charters were then considered by the crown to guarantee only private rights, and that the powers of government existing under them were subject to inquiry and to practical annulment at any time by this board. During the years of the Commonwealth and Protectorate we hear little of the successor of this board, but much of the council of state, which continued the functions of the privy council. Of the admiralty board we hear when naval expeditions were fitting out, and in the case of Ingle vs. Lord Baltimore. Virginia tobacco occupied some of the attention of customs officials and of the privy council as well. Of the courts only the King’s Bench was called into activity, and that to revoke the charter of the London Company. In the issue and recall of charters the services of the law officers were always in requisition. The House of Commons inquired into the monopolistic features of the charter granted to the New England Council, but was warned to keep its hands off the Virginia business. When the kingship was abolished all the administrative bodies of course referred to Parliament as the source of their power. These general and well-known facts it has been necessary to

mention in order to indicate where activity began and through what bodies it operated.

     To the royal officials who were seeking to establish and maintain control over colonial affairs the place of residence of those who received proprietary grants was a matter of great moment. Both judicial and administrative control could be much more easily exercised over a corporation or proprietors resident within the realm than it could over those resident on a distant continent. The form under which land and especially trade were managed was also of some importance. The government first came into relations with the London Company and the New England Council. Both were corporations located within the realm, but at the same time proprietors of provinces. Because located within the realm they were subject to all the forms of regulation and interference, both by king and Parliament, to which corporations generally were liable. The experience of the London Company, together with the little we know concerning other companies at that time, would lead to the inference that the tinkering came more from the executive than from the legislative. We know that James I, after Sir Edwin Sandys was elected treasurer of the company, attempted to apply to it the congé d’élire, the instrument by which the cathedral chapters had been humbled and their rights of election annulled. The company did not yield; whereupon, since it was the importer of the entire annual product of Virginia tobacco, the crown then strictly regulated its trade. By the charter the rate of duty specified for imports from Virginia was five per cent. But that was overridden, and Virginia tobacco was subjected to such rates of duty as might be specified in the Book of Rates, while an additional imposition known as a garbling duty was levied. When the company attempted to carry its tobacco direct to the Low Countries it was sharply ordered by the privy council to land it in England, and the policy later known as that of the enumerated commodities was applied—a policy that was widely extended under the Acts of Trade. The company also, as is well known, became involved in the political controversies of the time.

This was another incident connected with its place of residence. A contract which it was arranging with the king and lord treasurer, through which the company hoped to secure the monopoly of the importation of tobacco into the realm and the king hoped to secure a large revenue, was therefore made use of by a faction within the body for the purpose of destroying the corporation itself. In 1624, under a writ of quo warranto, the company was dissolved, and Virginia became a royal province. With this began that transition from chartered colonies to royal provinces to which reference was made above.

     The fate of the London patentees furnished an excellent object lesson for those who, six years later, removed the governing body of the Massachusetts Company into New England. The New England Council, the second of the companies resident in England which had been chartered for the purpose of colonizing North America, had then been in existence nearly a decade. It was intensely loyal in spirit, but at the same time utterly inefficient as a colonizing agency. Into the composition of the Massachusetts Company, on the other hand, went a spirit of religious and political dissent and a power of initiative which was stronger than any manifested even among the London patentees. After the removal of the Massachusetts Company into New England and the establishment of its colony there, a controversy arose between it and the leaders of the New England Council. This was caused by conflicting territorial rights, by the treatment visited by Massachusetts on some who had been grantees or agents of the Council within New England and by the ecclesiastical and political attitude of the new colony in general. This controversy was carried before the privy council and finally occasioned the issue of a writ of quo warranto against the Massachusetts charter.

     The information¹ filed by the attorney-general in this instance was directed not against the corporation itself, but against its members, whether resident in England or New England. It cited the main provisions of the charter and

declared that the said franchises and liberties had been usurped in contempt of his Majesty the King. At this point appeared the significance, from the standpoint of judicial control, of the removal of the Massachusetts Company into New England. The writ issued in pursuance of the information was not served upon the officers and members of the corporation who were resident in New England, and probably could not have been served and a return secured within the specified legal time. The information was filed in Trinity Term of 1635 (11th Charles I), and the trial was held in Michaelmas Term of the same year. At the trial, which was before King’s Bench, fourteen members of the company appeared and pleaded that they had not usurped any of the said liberties and did not claim them. Thereupon in each case it was decreed by the court that the individual concerned “shall not for the future intermeddle with any of the liberties, priviledges or franchises aforesaid, but shall be forever excluded from all use and claime of the same and every of them.”¹ Matthew Cradock made default and was convicted of the usurpation charged. It was decreed that the liberties, so far as Cradock possessed them, should be seized into the king’s hands, that he should be excluded from the further use of them and should be held to answer for the usurpation. The record closes with the statement that “the rest of the patentees stood outlawed and noe judgment entered up against them.”

     The effect of this action on the part of King’s Bench seems to have been to exclude from the company such of its members as were accessible and appeared, while the corporation itself remained intact. The governing body of the company defaulted through non-appearance, and the record states that they stood outlawed. But it also states that no judgment was entered up against them. We have no record that steps were taken to complete the process of outlawry, which would have required the issue of several additional writs, and those

directed toward the execution of a judgment already pronounced and recorded. Had it not been for the legal difficulty connected with the service of the writ, it is altogether probable that the Massachusetts Company would have shared the fate of the London Company, and the way would then have been cleared for the governor-generalship of Gorges, as soon as the New England Council surrendered its charter. As it was, on three¹ occasions between the summer of 1637 and the spring of 1639, authoritative information came to Massachusetts from the commissioners of foreign plantations in England that the magistrates and others had no legal right to govern the colony, that a judgment had passed against the charter and that it should be sent home. To one of these messages a reply was sent excusing themselves for not transmitting the charter lest such act might be interpreted as its surrender. Of the last peremptory demand no notice was taken. That the government, had the corporation been resident in England, would have allowed itself to be balked in this way is hardly credible, even though it was at the time on the eve of a civil war. But the corporation stood and, when the Restoration came, was treated as in full legal existence.

     It should be remembered that the ideals of the Stuarts concerning government were not essentially different from those of the French monarchs and statesmen of their time. They believed in the complete and unobstructed supremacy of the executive. At the beginning of his reign Charles I issued a proclamation² in which he announced his desire that both the dominions and the realm should be organized according to the same model, that of the monarchy. So far as the British government ever had any conscious or active purpose in reference to the subject, it was in harmony with the sentiment of this proclamation. Had Charles I and Archbishop Laud succeeded in their plans at home, the emigration of dissenters to the colonies would probably have been checked, and the effort to reorganize the government of Massachusetts

would have been renewed. In the attempt already made to reduce it to the status of a royal province we see a repetition of the policy which had destroyed the London Company, and an example of the policy which the crown, when actively interested in colonial affairs, always showed itself ready to adopt. Though a sense of personal and official favors received led Charles to grant away Maryland, the reduction of New England to the state of an immediate dependency, had it been consummated, would have gone far toward securing from the outset colonial administration of the type preferred by the Stuarts. The provinces could then have been placed under an executive control, the chief immediate object of which would have been to maintain uniformity in religious worship. But plans of this nature were shattered by a civil war which itself was occasioned by the attempt to enforce uniformity and absolute rule in the three kingdoms.

     After the Restoration the former relations and tendencies reappear, but with some important modifications. Among these modifications special mention should be made of the abandonment by the English government of efforts to enforce religious conformity in the colonies. It was by that time becoming evident that ecclesiastical unity as an ideal for the realm would have to be abandoned, and no thought seems to have been entertained of further efforts to realize it in the dominions. This is evidenced both by the omission from the Act of Uniformity, passed subsequent to the Restoration, of all reference to the dominions and by acts and declarations of the crown. In all the royal charters which were issued to colonies subsequent to the Restoration, as well as in the instructions to the royal commission of 1664, the principle of religious liberty found recognition. In the charter to the Duke of York no reference whatever was made to religion, and all forms of Protestant worship existed in that province, while Catholics and Jews lived there in quiet. The same, of course, was true in the Jerseys. The object of the king in his dealings during this period with Massachusetts was, as he declared in the instructions to the commissioners of 1664, not

to crush out dissent, but to secure for Anglicans who might reside there the right to use the Book of Common Prayer in public worship.¹

     In the Carolina charter the hope was expressed that failure to attend public services of the English Church would, “by reason of the remote distances of those places,” not be considered a “breach of the unity and conformity established in this nation.” Authority was therefore given to the proprietors to grant liberty of worship to dissenters within the province, provided they conducted themselves quietly and did not disturb the civil peace. Of this permission the proprietors availed themselves, and a large majority of their colonists were dissenters. In Pennsylvania, with its Quaker proprietor and settlers, the situation as compared with England was reversed, and this was fully recognized in the charter. It sought simply to guarantee the right of Anglicans to organize themselves into local churches when, in each case, as many as twenty could procure a preacher who was licensed by the Bishop of London. It thus appears that, subsequent to the Restoration, the policy of the home government was limited to efforts to secure for the English Church recognition in the colonies which were inhabited wholly by dissenters, and certain privileges in other colonies.

     The tendency toward variety, and at the same time toward liberty, was also strengthened by a number of large proprietary grants at this period. Of chief importance in this connection was the creation of the proprietary provinces of Carolina, New Jersey and Pennsylvania.² The position and temper of the proprietor of New York, together with the fact that his province was won by conquest, gave a different significance to that grant. The issue of the charters to Connecticut and Rhode Island, by which those colonies were made corporations resident in America, and hence practically recognized as self-governing commonwealths, was also a notable event. If the

king at one time could have had his way, even Virginia would have been charged again into a proprietary province. Considered from the standpoint of those who might be interested, or who might become interested, in systematic colonial administration, these acts must to an extent be considered as aberrations. They were such in so far as they resulted from the mere personal favoritism of the king or a careless disregard of consequences on the part of his advisers. But the phenomenon has a deeper and wider meaning. The large proprietary grants referred to simply afford proof that the period of settlement was not yet over. The region lying south of Virginia and the largely unsettled New Netherland had still to be occupied by Englishmen. In order to secure that., recourse must be had to the proprietary system. The English government was no more prepared in 1660 than it had been in 1600 to undertake directly the work of settling colonies and establishing their institutions, industry and trade. For the accomplishment of such purposes resort had to be made to the accustomed agencies. But in doing this the government yielded some things which it was soon eager to recover.

     By the time the period of the Restoration was two-thirds over, an attack had begun on the chartered colonies systematically and all along the line. This was occasioned by the passage of the Acts of Trade and by the special conditions which existed in New England. The Acts of Trade were the result of an effort to deal comprehensively, and in accordance, with the accepted economic views of the time, with colonial commerce. Since the time when the tobacco contract had been formed with the London Company, trade with North America had passed from the control of chartered companies into the hands of private merchants, a part of whom were resident in England, while others lived in the colonies. Moreover; the land from which an important part of colonial exports was raised, was now in the form of private estates. Thus an industrial system based on the institution of private property had developed. The producers were colonists; the exchangers were both colonists and Englishmen. The home government

sought so to regulate this system by statute and administration that the staple products of the colonies and their supplies should pass through British ports and markets—that the colonists, while furnishing raw or half-manufactured material for British producers, should themselves constitute a market for finished British products. Though to a considerable extent this policy was consistent with the economic condition of the colonies as it then was, in some respects and to varying degrees it crossed their interests. With details and with the specific bearings of the acts we are not here concerned. But we are concerned with the fact that these acts necessitated, for the first time in British history, something life systematic colonial administration, to be applied in and over the colonies themselves and not to trading companies resident in England. So long as settlement and trade were controlled by corporations, or indeed by individual proprietors, resident in England, these affairs could be supervised by pressure brought directly to bear on the corporations or proprietors themselves. But common landholding and the magazine system had vanished, and the later proprietors paid little direct attention to trade. Owing therefore to the changes, both administrative and economic, which had come about since the dissolution of the London Company, imperial control must now be exercised in America as well as in England; it must reach the colonies directly and not through trading companies or proprietors resident in England; it must also be comprehensive and not desultory.

     In New England, and especially in Massachusetts, a variety of questions demanded settlement, and some of them reached down to the very roots of sovereignty. There was the controversy between Massachusetts and the heirs of Mason and Gorges as to the possession of New Hampshire and Maine. Over the settlements within these provinces Massachusetts, in the period of its assumed independence, had usurped control, though by doing so she had perhaps saved them from anarchy. Similar usurpations and controversies in the Narragansett region also called for attention. The difficulties connected with the enforcement of the Acts of Trade were certainly as

great in New England as elsewhere. Massachusetts persistently refused to acknowledge the right of appeal. She clung to her religious test. None of the Puritan colonies can be said to have voluntarily recognized the crown in any of their acts, though for several reasons the attitude of Connecticut was not so offensive as that of Massachusetts. None of these colonies was willing to allow the English Church to obtain a foothold if it could be prevented. In legislation they followed their own course, and none of their acts had ever been submitted to the home government for its approval or dissent. While within the law, Massachusetts—and to a less extent the other Puritan colonies—was in spirit and reality in an anomalous position. They had existed under a system of separatism and of de facto self-government which was inconsistent with the main trend of events subsequent to the Restoration. As their position had been an extreme one, so in their case the reaction was extreme, and to the controlling element among the colonists it was very offensive.

     The king began mildly. He first attempted to adjust New England relations through a royal commission; this failed. He then resorted to correspondence and to a succession of agencies, a part of these being sent under his command from Massachusetts, and others despatched by himself from England. These also failed to bring the requisite submission. Then the aid of the courts was invoked, and the Massachusetts charter was declared forfeited. But in order to reach it, the quo warranto method which had failed in 1635, and was now tried again, had to be abandoned, and the more summary procedure under a scire facias substituted. The writ by which quo warranto proceedings were instituted was dated June 27, 1683, and was returnable at Westminster the third day of the next Michaelmas Term, which was early in the following November. Edward Randolph, who was sent over as agent to serve this writ, did not arrive in Massachusetts until near the close of October. The general court could not be brought together to act on the summons until November 7. Then the time for the return of the writ had already passed, and procedure was thereby blocked. That

this was the fact, and that it furnished the cause of the abandonment of process under this form, is indicated by the statements of the attorney-general, Robert Sawyer, himself. In an opinion rendered the following May,¹ he declared

     The quo warranto was brought against the present members of the Company, . . . and the process directed in the ordinary form, . . . but the latter was not delivered until after the return of the writ was out. The Sherifes principall objection why he could not return A summons was because the notice was given after the return was past. He did also make it a question whether he could take notice of New England, being out of his balywick.

Randolph states in one place² that the fault lay in the form of the writ—in the fact that it was directed against particular persons and not against the governor and company by name. This, however, could hardly have weighed with Sawyer and the other legal authorities; for only two years before, in the great case of the King vs. the City of London,³ the defendants had claimed that such writs should be directed only against the natural persons who make up a corporation and not against the corporation itself, which is indissoluble; while Sawyer himself argued with convincing force, citing the case of the Virginia charter among many others, that both forms, or a combination of the two, were valid. Moreover, when two years later Randolph was charged with the service of similar writs against Rhode Island and Connecticut, he wrote

     Now to the intent the time limited for serving the writs upon the Governors and Companys of those Collonys may not be lapsed by delays and the difficulties of a winter voyage, and his Majesty’s prosecutions thereby rendered ineffectual, as it was in serving the writ of quo warranto against the Boston charter, it is humbly proposed, that in three weeks time at farthest a ship is bound from London directly to New England, by which the quo warranto may be sent and served accordingly, to the end there may be no delays made in that affair.⁴

     Under the writ of scire facias, according to the rules of procedure which seem then to have obtained, after the sheriff or his agent had twice returned nihil, and that too within a brief period, the prosecutor could enter a rule for the defendant to answer within eight days, or judgment would be entered by default to avoid the patent.¹ If the defendant made default, the charter could be voided without his receiving any notice. Attorney-General Sawyer, as soon as he was informed of the failure of Randolph’s attempt to serve the writ in time for a legal return, advised that the process of scire facias should be resorted to. This course the government adopted, and the Massachusetts charter was cancelled.

     The words of the decree which was entered after the second return of nihil were as follows:

Whereupon the aforesaid Sir Robert Sawyer Knight, the King’s Attorney General who prosecutes this cause for our said Sovereign Lord the King, prayed Judgment and that the said Letters Patents, soe as aforesaid to the said Governor and Company made and granted and the Inrollment of the same, for the reasons aforesaid forfeited, be Cancelled, vacated and annihilated and restored into the Chancery of our said Sovereign Lord the King there to be Cancelled. And the said Governor and Company, the fourth Day of the Plea of Eight daies of the holy Trinity above menconed, before the King in his said Chancery here, that is to say att Westminster aforesaid, being solemnly called, did not approve but made default, whose default is recorded by the said Court here. Therefore by the said Court here itt is adjudged that the aforesaid Letters Patents . . ., and the inrollment thereof, be vacated, Cancelled and annihilated, and into the said Court restored there to be cancelled.

The main features of the process appear in the language of decree. It was summary, and the decree was entered after default. But it was effective, and by no other judicial process was any corporation resident in America reached during the period of colonial history.

     Having overthrown the system of the Puritan commonwealth in Massachusetts the crown resolved further to sweep away by prerogative and judicial action all the chartered colonies, and to unite the royal provinces which should result from this process under a governor-generalship. The accession of the Duke of York to the throne, and the substitution by that event of royal for proprietary government in New York, gave a decisive impulse to the extension of this policy outside of New England. The clamor of the merchants and magistrates of New York for the rehabilitation as an English province of the old New Netherland, with its boundaries at the Connecticut and the Delaware, was greatly strengthened by this event. Though quo warranto could be easily and successfully used against proprietors resident in England, it was no more available against Connecticut and Rhode Island than it had been two years before against Massachusetts. But for some unexplained reason it was resorted to again against them. It again proved ineffective, and for the same reason as when used two years earlier against Massachusetts. Government under the charters of Connecticut and Rhode Island was suspended, but the corporations were not dissolved; yet had it not been for the opportune expulsion of James from the English throne, the ideal of the British Tory and administrator would then, so far as we can see, have been realized.

     As the program, in the form which it then possessed, implied the extinction of assemblies or their reduction to an utterly subordinate place, we can see that, had the policy triumphed, a colonial system much the same as that of France would have developed. But as soon as the king and ministers who had devised this scheme were driven from power, many of its extreme and arbitrary features vanished. As we now look back upon it, compare what preceded with what followed, view it in its relations with British colonial development in general, we can see, I think, the element in it which was justifiable—an element which remained after the arbitrary features of what we know as the Andros régime had vanished. In order to secure the enforcement of such rights of control as the home government was entitled to—rights the exercise of which was proper

under any political system worth the name,—it was necessary that a royal executive and judiciary should exist within the colonies. So long as the colonies remained separate from one another, it was necessary that such a body of officials should be developed in as many of them as possible. Under the system of chartered colonies it did not exist, and indeed there was very little place for it. The merit of the supporters of the Andros regime is to be found in the fact that they forced an entrance for these officials into so many of the special jurisdictions. Under William III and his successors the effect of this was not lost; for, though the assemblies were restored and their continuance as a part of the system never thereafter questioned, steps were taken which temporarily changed all but two, and permanently all but four, of the colonies into royal provinces. By this means in each of these provinces a full corps of royal officials was secured, and they, in subordination to the general and specific orders of the English government, continued during the early eighteenth century and the struggle with the French which then taxed all resources to administer the affairs of the colonies.