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PART FOURTH

IMPERIAL CONTROL. BEGINNINGS OF THE SYSTEM OF ROYAL PROVINCES

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CHAPTER I

THE NATURE AND ORGANS OF IMPERIAL CONTROL

In the earlier volumes of this work the results which were achieved mainly through the operation of private initiative in the development of British-American institutions have been traced. That motive, when followed out in action, resulted in the founding of a considerable number of colonies, each with its peculiar grouping of settlers and its characteristic organization; all, as a rule, jealous of the privileges which, by charter or in other ways; they had secured. The part thus played in America by the chartered colonies corresponds to the regime of the privileged commercial companies in the development of English trade. Those were in part joint-stock and in part regulated companies. The companies which shared in American colonization were organized on the joint-stock plan. But the system under which trade was carried on with the chartered colonies in general might be roughly compared with that which was enforced by the English regulated companies. The important fact, however, in this connection is that, when the British government came to enforce such principles of control as it thought conduced to the general interest, it had to deal in both cases—that of the trading companies and that of the American colonies—with bodies possessing chartered powers. In this form mainly both English trade and English colonization were organized throughout the seventeenth century.¹

In the history of this phase of early American institutions the most significant event was the removal of the governing body of the Massachusetts company into their colony.² That

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gave rise to a type of colony which embodied most clearly the spirit of separation and independence toward which private initiative naturally led. Outside the group of corporate colonies, whose settlement was either directly or indirectly the result of the course which Massachusetts pursued, the same tendency existed, but it was prevented by social and institutional restraints from gaining such complete sway.

In the present volume attention will be called to the influence which was directly exerted over the colonies, and over the proprietors who coöperated in founding them, by the British government; that is, by the sovereign power under whose protection they all came into existence. Under this aspect of the subject the emphasis will be laid on British and general imperial interests, which operated as a restraint upon the tendencies in the colonies toward local independence. In the history of this phase of our colonial development the most significant event, corresponding in importance to the settlement of New England, was the attempted consolidation of the colonies between 1680 and 1690. We shall be concerned with the events that led gradually to that consummation and with some of the after results which permanently affected colonial life. A study of this nature, when: properly balanced by a regard to the interests of the colonies as special jurisdictions, will form a proper introduction to the varied struggles and achievements of the eighteenth century.

Historians have hitherto neglected this side of the subject, or have treated it as foreign and inimical to the colonies. I should, however, be remembered that the control of the British government over the North American colonies was no imposed as the result of conquest, but was developed as an incident of their settlement. It was exercised over English subjects or over those who were ready to declare their intention of becoming such. Even the Dutch and Swedes of New Netherland very soon took the oath of allegiance and became reconciled to the establishment of English authority among them. To the colonists such authority was certainly not foreign, though as a result of their removal to a distant

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continent, it became in a sense external. It was a part and a condition of their existence. When properly exercised, this authority did not involve a meddlesome interference, but was as necessary and inevitable as were the tendencies toward isolation and independence in the colonies themselves. Had the colonies not been subject to control in the lines along which sovereign power is accustomed to act, they would not have been dependencies, but something other than that.

From the remoteness of the colonies and the strange environment which surrounded their settlers arose all that was peculiar and exceptional in their relations with the British government. And this in fact was sufficient to account for much. Under favorable circumstances it required four months to send a despatch from London to America and procure a return; often the time required was much longer. This was a natural obstacle to the processes of government which could not be removed and which conditions during the seventeenth and eighteenth centuries did comparatively little to modify. The ordinary proprietor might remove into his province and administer its affairs on the spot. But this the king, whether as proprietor or sovereign, could not do. His residence was always in Europe. From England as a centre, royal or imperial control, whether it was exercised over chartered colonies or royal provinces, must be administered. In other words, the development of imperial control over the British-American colonies affords an illustration of the problems affecting government when it proceeds from a remote centre. This is its main characteristic and suggests the chief distinction between it and the government of the realm, as well as the self government of the colonies. It was this condition which gave rise to the principle, that the laws of England in general should be enforced in the colonies so far as the circumstances of the latter would permit—a qualification which never obtained in the realm.

In modern times dependencies are usually situated in regions far distant from the countries which have established them, and the characteristic just referred to attaches to

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every system of colonial administration. But in the case of many colonial systems, especially in the modern era, it is modified by the other problem, that of the government of alien and inferior races. Questions of this nature become vital and controlling when natives far exceed the European settlers in strength and numbers. Relations with an inferior race formed an element in North American colonization. But, so far especially as the home government was concerned, this feature of the problem occupied a secondary place. Until past the middle of the colonial period Indian relations were a matter with which the colonists concerned themselves much more than did the British government. Its attention was chiefly centred upon the government of Europeans—subjects of Great Britain—when removed to a distant continent and subjected to the influences arising from new surroundings, conditions which tended to attract them away from the mother country. In its last analysis the history of British colonial administration is essentially an exposition of the consequences in the development of institutions of this great natural condition. This explains the failure of policies and institutions to reach a complete and well-rounded development. It also explains much that was peculiarly slow or hesitating in administrative methods; the delays, the indifference, the ignorance with which royal officials were often chargeable; the autocratic and unsympathetic spirit which appeared in much that they said and did; while, on the other hand, the particularism of the colonists sprang from the same source. In other words, it gave rise to the distinction between the realm and the dominions, a phrase which sums up in convenient form the legal and constitutional results of the process.

By the realm was usually meant England, Wales, and Berwick on Tweed. It was the territory whose counties and boroughs were virtually or really represented in parliament, and over which the acts of parliament, whatever their purpose and content, carried full authority. The ordinance power of the English executive, when confined within its proper sphere, was equally authoritative in all parts of this territory, as were the decisions of the central courts. The

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English system of local government also existed throughout this region.

When the colonies were founded, did they become a part of the realm? Did they become a part of it at any period subsequent to their settlement? Was the realm subject to continuous expansion, or did it remain the same, while the colonies lay outside of it? Were they the beginning of a new realm, which in the end might have added a third crown to the royal dignities of the Stuart family? In other words, when the colonies were founded or as they developed, did the English constitution, spontaneously and in complete form, extend to them? Did they become fully subject to the authority of parliament, to that of the king and of the English courts? Did all the laws which guarantied the rights of the crown, and those also which were intended to secure the liberty of the subject, extend to the colonies? Were the colonists bound by the English system of private law, by its criminal law, by the law of procedure in the English courts? Did English law extend to the colonies proprio vigore, or were the colonists at liberty to select what they chose or what was adapted to their condition? Was the sovereignty of England over them immediate and complete, or was the relation between the two one of compact? Finally, were the colonies a part of a great consolidated state, or of a federal empire? These were the issues, conceived in the broadest terms, to which the founding of the colonies gave rise, and their origin was due to the peculiar conditions which had their root in colonial isolation.

As in the Saxon period of English history the organs of the central government were imperfect and a satisfactory connection between them and the localities had not been established, so in its relations with the colonies that well-balanced institutional development was never reached which had come into existence throughout the realm long before the close of the middle age. On the other hand, as we have seen, the colonies developed a system of local or self government which was far more complete than anything which existed within the realm. In the eye of the law, however, the corporate colonies ranked only with English municipal

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corporations, while the provinces were the equivalent of English counties. But in reality they had become political structures of a higher rank than their English prototypes, and the colonists were fully aware of the fact. The English counties and boroughs had no assemblies which would rank in importance or authority with those which existed in all the colonies. The proof that this is true has been given in abundant detail in the previous volumes.

On the other hand, the activity of the central government was much less fully exerted in the colonies than it was over the municipalities and counties of the realm. This again was due primarily to the remoteness of the colonies from England. It is true that in the seventeenth century the volume of their business was not large, but it is quite likely that it would have equalled the business of any corresponding number of English counties and municipalities, if Middlesex and London were excepted. But the fact of importance is that, as compared with the English localities, only a small part of the business of the colonies ever came before the English government or was passed in review by its officials. The organs of the English government—its privy council, its treasury and admiralty, the courts of law, and even the parliament—existed for the colonies as truly as they did for the realm; but the chief part of colonial business was transacted in America, and the volume of such business which passed through English offices was very small as compared with the total business of the realm. This was the consequence, in the domain of administration, of the remoteness of the colonies from England; and that fact was accompanied with a corresponding degree of indifference toward colonial affairs on the part of British officials and the British public, and toward British affairs on the part of the colonists. Colonial affairs did not receive the direct and intensive treatment which was given to those of the realm.

Just here appears the root of the distinction between the realm and the dominions in that growing political structure which was to be known as the British empire. It was more a distinction of fact than of law, of practice than of principle. But from long-continued practice or custom arise new principles,

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which in course of time find expression in law. Conduct begets a law which, though it be unwritten, may be more powerful than any code or body of statutes. This was a fact in colonial development which officials were prone to forget, but which they were destined to learn to their cost before the end of the eighteenth century.

British lawyers and officials at home and those who represented the home government in the colonies held that, in law if not in fact, the authority of Great Britain within the dominions was complete. To their minds the relations between the British government and the individual colonists were immediate, and might be made so throughout the entire circle of civil and political relations. They held that the colonies were in principle as completely subject to parliament, as much exposed to the changes which are gradually wrought by the tightening or the loosening of the reins of power, as were the local jurisdictions within England itself. In this they were technically correct and were quite in harmony with the principles of English law. The logical consequence of their reasoning, however, was, to lower the rank of the colonies as political structures to the level of English counties and municipalities. According to this view, if private rights were guarantied, the internal structure of the colonies might be modified by act of parliament, or, under certain circumstances, by executive and judicial action. Without the consent of the inhabitants, the colonies might be subdivided or combined in any way that suited imperial interests. The colonial assemblies even, and the systems of public law to which they gave rise, were held by many to exist by sufferance, and that in the interest of public policy—a very elastic expression—they might be seriously modified or even swept away. If this were true, as doubtless it was in strict point of law, the colonies were virtually a part of the realm, and at the same time, the continuance of what the colonists most valued in their institutions was not adequately guarantied; the realm, in other words, was ever expanding so as to keep pace with the advance of the American frontier.

But opposed to this view was a most important array of facts. These were the remoteness of the colonies from

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England, already referred to, and all the administrative and, political consequences which resulted from that physical condition. These facts, when they worked themselves out historically, gave rise to a series of relations between the dominions and the sovereign power in Great Britain which was very much less inclusive and complete than that which existed between the central government and the counties, cities, and boroughs of the realm. Corresponding to this, there developed in the minds of the colonists a higher appreciation of the value of their local institutions, as expressions and guaranties of their liberties, than was felt by Englishmen for their county and municipal systems. The counterpart of this was the sensitiveness which the colonist always felt and expressed when from any quarter his local independence seemed in danger of infringement. By the colonist executive action or legislation at Westminster which was likely to affect his local interests was viewed with much greater jealousy than similar action affecting an English county or borough could have aroused among its inhabitants. To him, because of the remote centre from which it proceeded, such action not only seemed autocratic, but it was so. Even the action of an imperial parliament in which the colonist was not in any real sense represented might be the most autocratic and oppressive of all. The tendency of all this was to keep the dominions very distinct from the realm, and to give rise, not to a consolidated empire, but to a structure, in spirit though not in law; much more analogous to a federation. This tendency did not completely triumph, but it furnishes the key-note to the history of the period, so far as it was determined by purely American conditions.

The fact that these conditions were giving rise in the seventeenth and eighteenth centuries to a novel political structure is to us becoming apparent; but to the men of those times the nature of that structure was by no means clear. The supreme legislature never satisfactorily defined the relation between the home government and the colonies, or settled the questions which were, or might be, at issue. It simply legislated for the colonies on certain subjects by mentioning the dominions in its statutes, and refrained from legislating on a much

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greater variety of other subjects. There was no judicial tribunal in the British system, except possibly the house of Lords, which was competent to pronounce on such questions. The desirability or necessity of such action does not seem to have occurred to the minds of British statesmen, and in fact the system of the elastic constitution, to which alone they were accustomed, almost precluded the possibility of such a suggestion. Respecting the subject there was little positive law.

The political consciousness of the colonists, on the other hand, was scarcely more awake, except that they were usually on the alert to prevent any encroachment on their accustomed liberties. Of constructive thought bearing on the nature of the British imperial constitution they were almost wholly barren. They were accustomed to fall back on the charters, but the provisions in them which appeared to guaranty to the recipients the rights and liberties of Englishmen referred to private rights and were extremely indefinite at that. Charters, moreover, might be modified or annulled, either by act of parliament or by combined judicial and executive action. If done by act of parliament, it was likely to be undertaken in the interest of public policy and thus to be a sweeping measure. Experience was also to prove that similar wide-reaching results could be accomplished in the seventeenth century by the combined action of the courts and the king in council. Before the courts the colonists might be held responsible for acts which under transatlantic conditions they had assumed or found it necessary to perform, but which in the case of an English county or municipality would be clearly illegal or in excess of powers. When charters were once annulled, and the royal province was instituted, with government under a royal commission and instructions, then the colonists came, so to speak, to close quarters with the crown, and the struggle continued over a whole series of claims and privileges and rights. The colonists were then forced to rely wholly on the common birthright of Englishmen, the guaranties which were supposed to have been secured by Magna Carta, the common law, and the great constitutional statutes of the middle age and the period of the Stuarts. But these also were often indefinite in their

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terms, made no mention of the dominions, and were of doubt ful applicability to the conditions which existed within them.

Such failure as this to understand and define existing relations left the way open for controversies and misunderstandings between the colonists and the home government or its officials. These controversies form much of the staple of colonial history on its imperial side until, just before the revolt of 1776, they culminated in a general scrutiny o mutual rights and obligations which, so far as immediate imperial reform was concerned, had a purely negative result.

The organs of the British government which were called into play in the administration of imperial control over the colonies were, as has already been suggested, the parliament the courts of law, and the various executive offices and boards which surrounded the king and constituted what was technically known as the crown. The function of the parliament was, in the form of general statutes, to prescribe the law by which relations with the colonies were to be regulated. As an incident of legislation the houses might receive petition and hear testimony. They might also call upon officials or executive boards to furnish them with information; the might seek this through their own committees. But the work of the parliament was regulative rather than administrative.

At the beginning of colonization it was possible that parliament might have legislated extensively for the colonies. Several statutes of Elizabeth’s reign which provided for the establishment of the English Church and for the security of the crown against the papacy and the Jesuits mentioned the dominions. One or two statutes which were passed for similar purpose at the time of the Gunpowder Plot, contained the same reference. It was frequently the desire of patentees that their charters should be confirmed by parliament, though it was not often in early times that this favor was secured. On December 19, 1585, a bill from the Commons for the confirmation of the patent to Sir Walter Raleigh was read in the Lords; but there is no reference to its passage and no such statute appears among the acts of that parliament.¹

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It was no uncommon thing in the early days for the parliament to call for patents and to inquire into the use that had been made of the privileges which they conveyed. This was done on a large scale by the Commons between 1621 and 1624 in connection with the attack on monopolies. In April, 1621, a bill was debated at length in the Commons and passed, for free fishing on the American coast from Newfoundland to Virginia. This brought up the affairs both of the Virginia company and the New England Council and led to repeated hearings on the subject of the monopolistic features of the New England patent; Sir Edwin Sandys was a most active defender of the policy of freedom of trade and fishing. The bill failed utterly of consideration by the Lords and so did not become law. Three years later Gorges’ patent was again attacked in the Commons and found a place in its list of grievances. But on this occasion no act was passed which directly affected the colonies.¹

In 1614 the Virginia company petitioned the Commons for an act for the better plantation of their colony, and a hearing was held, at which Richard Martyn appeared as counsel for the company, but with rather humiliating consequences to himself. No legislation came of this.² Reference will elsewhere be made to the effort to bring the affairs of the Virginia company before the Commons just before the recall of its charter in 1624. Occasionally after Virginia became a royal province its planters or merchants who traded thither petitioned the Commons, but no action of importance followed.³ A variety of subjects, to which parliament at times devoted much attention, led far afield and might naturally have involved much legislation affecting the colonies. These were trade, patents, the fisheries, the navy, the customs revenue, war, and defence. During

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the Interregnum, as will be seen, parliament became the centre of the political organism, and all activity, whether legislative or executive, proceeded from it. But notwithstanding the possibilities which were implied in all this, parliament actually confined her colonial legislation, both, before and after the English Revolution, to the subject of trade, passing only an occasional act on other subjects, as on defence during the last intercolonial war.

It is, however, true that both English statute and common law were in a general sense operative in all the colonies. The charters forbade the passage of laws which were repugnant to those of England. The colonists always claimed the benefit of the great English statutes which made for liberty. In many cases they incorporated the substance of them in their own legislation. As Englishmen they were ever under the influence of the legal and administrative traditions of England. Their institutions and laws were based on those of England; its laws were appropriated, both consciously and unconsciously, as the process of development continued. But this, especially during the seventeenth. century, was the work of the colonists themselves, and was not effected through pressure from the home government. In the process of natural selection which went on, the colonists took what suited their purposes and modified it as the conditions under which they lived seemed to require.¹

As to the judge-made law of England, except so far as it had become a part of the common law, it was largely without influence on the colonies in the seventeenth century. In fact, when the colonies were founded, the judges had not established their independence of the executive. In the colonial courts of the time the best judges were imperfectly acquainted with English precedents. In many cases they were totally ignorant respecting them. The dearth of trained lawyers and the lack of a system of appeals made anything more than a rough approximation to English practice and

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impossibility. The system of appeals from colonial courts was not yet developed, though the admiralty occasionally heard cases which involved vessels engaged in colonial trade.

The executive therefore was the only department of the English government which from the first and throughout the period was directly concerned with the colonies. This arose from the fact that the title to land in the plantations, originating in discovery made under royal license, vested in the crown. The crown issued all charters under which settlements were made. This gave rise to a feudal or pseudo-feudal relation between the king and the grantees. In the case of the provinces this was reproduced by the grants which the proprietors made to the settlers. From this relation, broadened by the fact of sovereignty, proceeded such rights of government as the king possessed over the colonies. These were exercised continuously, and constituted the system of royal control.

The organs of government through which executive control over the colonies was exercised were, besides the sovereign himself, the secretaries of state, the privy council, the lord high treasurer or commissioners of the treasury, the lord high admiral or commissioners of the admiralty, the law officers of the crown 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, and 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. A variety of special commissions were also appropriated from time to time, each for a particular purpose. These are especially prominent in the history of Virginia. Behind all these bodies stood parliament, inactive as yet, but with unlimited possibilities attaching to it as a regulative power.

During the period prior to 1642 the privy council, or

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more properly the king in council, was the body which was chiefly concerned in the administration, both of the affairs of the realm and the dominions. In relation to the dependencies the functions of the council were threefold 1. it was the chief among the central administrative board which were concerned with colonial affairs; 2. it acted as high court of appeal in the trial of cases which were brought from the courts of the colonies; 3. by virtue of a power which it assumed after the royal provinces began to develop, it gave or withheld its assent to acts of the legislatures in nearly all the colonies. It thus became a part of their legislative machinery.

But in the early period, of which we are now speaking, the executive function was almost the only one relating to the colonies which the privy council discharged. In performing these duties it was concerned with all the dealings between the king and the proprietors of colonies, whether corporations or individuals, who were resident in England. From them it received petitions, letters, and reports. In response to all these it originated action in the form of letters, warrants, and orders. Letters from the privy council were or might be written concerning all subjects which came before, it. The warrants which it issued were orders to do particular things; as, for example, to draw a patent. They belonged chiefly to the sphere of pure administrative routine.

In the process of investigation hearings were frequently held before the whole council or before a committee. Abundant examples of these forms of action will appear as we proceed, and hundreds more may be culled from the colonial papers. Captain Bargrave petitions, in April, 1622, against the management of Virginia affairs by Sir Thomas Smith. In September, 1630, Aldersey, Cradock, and others of the Massachusetts company petitioned for license for one year to transport provisions to Massachusetts, and that the proclamation of 1622 against disorderly trade be renewed. Both requests were granted. In January, 1634, the attorney general writes that the king may give laws to Newfoundland and submits some which might be temporarily enforced. Sir Ferdinando Gorges, probably in June, 1638, in a letter to the

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council requests that the existing restrictions on emigration to the colonies may be so interpreted as to exclude only schismatics. In October, 1618, a justice of the peace of Somersetshire reports that Owen Evans was causing much fear by impressing maidens, under the pretended authority of a commission, to go to Virginia. The Discourse of the Old Company, a memorial of great importance, explaining and defending the policy of the Sandys-Southampton party in the Virginia company, was addressed to the privy council. In February, 1637, the master, wardens, and assistants of Trinity House report on Newfoundland affairs. In May, 1639, the officers of the customs at Yarmouth certify that, since their last, no passengers or goods had been shipped from that port to Massachusetts bay.

Orders were the most common form used by the council for the expression of its will, and they carried with them the highest binding force. Within the sphere of the executive they hold a position of importance corresponding to that of the statute within the province of the legislature. They were, or might be, issued concerning all matters which came within the cognizance of the council. During the controversy between the crown and the Virginia company, and while the government of Virginia was being taken into the hands of the king, orders were issued concerning a variety of subjects connected with Virginia affairs. In 1630 orders were issued relative to a dispute in which Captain Kirke and his associates, merchant adventurers to Canada, and M. de Caen were involved over certain beaver skins to which both laid claim. In 1631 an order was issued referring a controversy, between the same merchant adventurers and certain parties who were charged with trading to Canada as interlopers, to Sergeant Berkeley and two others for further investigation, In December, 1632, a committee was ordered to be appointed to inquire and report how patents for plantations in New England had been granted, concerning the truth of petitions from planters there, and about a relation in writing which Sir Christopher Gardiner had submitted. In 1635 a controversy between Edward Kingswell and Samuel Vassall over the transportation of colonists who were intended for Carolina,

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occasioned the issue of orders. Orders were issued 1640 to the lord treasurer and the officers of the customs for the clearing of several vessels which were bound for New England with passengers and provisions.¹

In the history which is to follow reference will need to be made with increasing frequency to the doings of the privy council. It was the board to which all general colonial business came and at which it centred. Questions of right and policy were there discussed and settled. The dealings of the council, however, were chiefly with the royal provinces. With those its relations were manifold and continuous. The king in council was the highest depositary of executive power for provinces of that class. During the period of which we are speaking the colonial business transacted by the privy council related chiefly to Virginia. Only occasionally do references appear to the chartered colonies and their concerns. They moved within their own distinct circles, and it required some event of exceptional importance, which affected the king’s interest, to bring them before the privy council. This reveals with sufficient clearness the character of the system of chartered colonies, and the significance, from the standpoint of imperial policy, of the transition to a system of royal provinces.

Of the other boards and officials whose share in colonial administration can at a later time be pretty clearly differentiated, prior to the Restoration only occasional traces appear. The secretaries of state had not then become clearly separated from the council. They were still subordinate to it and in their dealings with the colonies their work appears as a part of its own. The lord treasurer bore a prominent part in the transactions with the Virginia and Somers islands companies affecting the importation of tobacco; but for a long time after the dissolution of the first-named company, the treasury concerned itself little with colonial affairs, except so far as they were affected by the collection in England of the duties on colonial products.

It thus appears that during the early decades the king

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alone, or the king in council, did nearly all of the colonial business. It was small in amount, and was not thought to demand the degree of expert attention which was afterward devoted to it. Of the executive functions which were performed at the beginning the granting of a royal charter was among the most important. It also best illustrates the cooperation of the different officers connected with the English executive in a matter of business which affected the colonies.

When a petition was presented by private adventurers, or a would-be proprietor, for a royal patent, the proposal was referred to the attorney general and solicitor general for an opinion on the legal aspects of the application. At any time before the creation of a special committee, council, or board of trade, the bearings of the proposition on the political and commercial interests of England must needs have been considered by the council, either in full session or with the aid of a special committee. When a decision had been reached that the grant would probably be both legal and expedient, the law officers were ordered, by a warrant under the sign manual, to draft the patent. When this was done, it was reported back to the council under the name of the king’s bill, with a docket attached which was intended for the king’s own eye, and which therefore briefly summarized the main provisions or object of the grant. If the terms of the grant were approved, a transcript of it under the king’s privy signet was sent to the office of the lord privy seal. There the formal parts of the charter were added, and the privy seal was attached. Thence it was sent to the office of the lord chancellor, where, if no further objection appeared, the great seal was affixed. This completed the grant and made the charter a letter patent.¹ The object of the process thus outlined was to protect the rights and interests of the king, to prevent either himself or his officials from being deceived and from granting franchises which they had no

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right to grant, or those the grant of which would be in expedient.

It is true that, throughout the seventeenth and eighteenth centuries, a very large part of colonial business was done by the men who at the same time were administering the affairs of the realm. It was done too in the offices where the business of the realm was transacted, and occupied its modest place in the general stream of affairs. Especially was this true when the privy council took immediate charge of colonial administration. But on two or three occasions a tendency appears to assign colonial business to a council; specially erected for the purpose, to a body which was given large powers of initiative and one upon which no express obligation of reporting to the king in council was imposed. It would be unsafe to attribute too great independence to any of these bodies, but one interesting example is the king’s council for Virginia, for which provision was made in the charter of 1606. It was given not only very complete jurisdiction over the two colonies which were founded on the American coast between the thirty-fourth and forty-fifth degrees of north latitude, but over the entire vast tract as well and over any and all colonies which should be founded within it.¹ It was not required to report to the privy council. Not any of its members were privy councillors. This certainly suggests the possibility that colonial affairs might have been intrusted to a body distinct from the privy council, and that they might have been organized quite by themselves.

But too great a weight should not be attributed to the omission from a charter or commission of express reference to an obligation to report before the privy council. The king might take business of that kind into his hand at any time, and such action meant that it would come before the council. Moreover, all the appointees on the king’s council for Virginia were members either of the London or Plymouth companies. If the creation of something resembling a council of the Indies had been contemplated, it is hardly supposable that its personnel would have been selected from so narrow a

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circle. It has very much the appearance of a device the purpose of which was to guard the interests of the king within those companies. That in fact was all the council ever accomplished, for when, in 1609, the London company was reorganized and the Plymouth patentees became inactive, the council disappeared. In general, whatever boards of commissioners, or committees, or subordinate councils existed, it is certain that the relations between colonial patentees and the king in council were direct.

Under any system where the administration of government from a remote centre becomes necessary, agents must sometimes be despatched for the purpose of procuring or giving information or contributing to the settlement of disputes. Results can often be more satisfactorily attained in this way than by means of ordinary correspondence. In the British system this gave rise to the royal commission and the colonial agency, which were the complements the one of the other. Commissions were from time to time sent to the colonies by the crown, while the term “agency” was applied to individuals who were sent for similar purposes to England by the dependencies. Commissions were resorted to at intervals and in times of crisis. In a special sense such appointees represented the authority of the king. In addition to procuring information they were often given limited executive or judicial powers, to be used in the settlement of disputes within a colony, between neighboring colonies, or between a colony or colonies and the home government. In early times colonial agents also were sent occasionally and on special errands. But, as relations became developed and established, they were more frequently employed. In the case of royal provinces they were quite regularly appointed from the first, and as the royal provinces developed into a system, the agencies became a regular feature of colonial administration.

The effect of the creation of special jurisdictions, like the chartered colonies, was to interpose grantees, with their groups of officials, between the crown and those of its subjects who had gone to live in the colonies. That was a most significant result of the settlement of the colonies and of their remoteness from England. Englishmen who, while they remained in the

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realm, were immediately subject to the control of the executive in all its branches and to all acts of parliament, by removal across sea escaped from those relations and instead became subject to colonial proprietors, with their legislatures and officials. Behind and above all these were the sovereign rights of crown and parliament, but the relation in which the colonist now stood to these bodies was no longer immediate, but mediate. Between the two the proprietors and their officials, or the general court with the elected officials of the corporate colonies, had been interposed. This, in the realm of administrative organization, was the result which followed from the settlement of the colonies on a remote continent under the impulse of private initiative. An essentially feudal relation had been created, with a large measure of practical immunity.

But from the first the need of conserving imperial rights was felt; and, as the dominions grew and the rivalry of other competing motives developed, the strength of this feeling increased. Considerations of national wealth and power, as emphasized by the mercantilist theories of the time, enforced the need. It became apparent first and chiefly in the spheres of war and international trade. Out of these general conditions arose the imperialist views of the later seventeenth century, the chief exponents of which were merchants, lawyers, and crown officials. They insisted upon guarding the interests of England in her colonies and upon subjecting them as a whole to a consistent and far-reaching policy. But under the system of chartered colonies the administrative machinery for accomplishing this was lacking. Without a corps of royal officials resident in the colonies it would be useless to attempt to overcome their particularism, or to establish systematic control over them. The elected officials of the corporate colonies and the appointees of the proprietors were almost equally useless for such a purpose. Not a single royal appointee was resident in any of the chartered colonies. In the face of such a situation and for the attainment of genuine imperial objects the English government was as helpless as would be the human body without arms or hands. These it must secure by the addition of royal officials—

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partly in the place of those of the colonies—and by establishing as far as possible an immediate relation between the crown and the colonists.

This change was effected by the substitution of a system of royal provinces for the chartered colonies which had come into existence at the beginning. Its effect, when viewed from the administrative standpoint, was to create in each province a corps of royal officials, who received their appointment and instructions, not from any proprietor or body of colonists, but directly from the crown. These, when the system was fully developed, were the governor, the councillors, the secretary, the surveyor general, the attorney general, the chief justice, customs officials, and, if regular troops were stationed in the province, officers of the army and navy. By means of these officials land was granted, justice administered, the militia organized and commanded, revenue collected and its expenditure to an extent controlled. In the royal provinces also the tendency was for the English Church either to be established or to be favored by law.

These conditions, even though they were not fully realized, gave the king greater strength in the royal province than was possible under the chartered colony. For purposes of imperial administration it was better adapted than any other form of colonial government. It had all the advantages of the proprietorship, with the additional characteristic that the king in this case was proprietor as well as sovereign.

The transition was effected in part by causes operative within the colonies themselves, and in part by pressure from the home government. The nature of the former has been sufficiently indicated in the earlier volumes of this work. The changes there referred to appeared chiefly in the proprietary provinces, and were the result of a struggle between the colonial executives and the lower houses of the legislatures, the houses which were in a special sense representative of the people. Against not a few phases of proprietary government, when at its best, the people were always protesting. In the corporate colonies also a change of sentiment came about among classes and localities which inclined them more favorably to the advances of the home

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government. Tendencies of this kind facilitated the transition to the system of royal provinces. 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 will be directed to those which proceeded from the home government. We have to do in this division of the subject with the beginnings of imperial control over the North American colonies, and its development and maintenance was the essential function of the sovereign power in the founding of the British empire.

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