Notes:BC1.AH.Colonial Virginia and Maryland charters and conditions

2014/05/16 User:Jeff

This is the first section The material of this article relies much on the 1st volume of Edward Channing's A History of the United States. Though it is risky to rely on only a few sources, Channing's books are heavily referenced with many excerpts from the cited sources. Hopefully, other editors of this article will add other sources.

The First Virginia Charter

In 1606 James I issued a patent which is generally cited as the first Virginia Charter. This document is remarkable in several ways. First, it asserts the right of the English king to colonize America between the 34th and 45th parallels - from Cape Fear River to Halifax. These were the southern and northern limits of Virginia - almost the entire eastern seaboard of North America. The Spanish considered Virginia part of the Spanish Indies - which were islands in the Caribbean . James I essentially said - no, we found it, so it's ours.

What is most important about the charter, for our purposes, is its constitutional declarations.

• In it there is a clause which states that the colonists and their posterity "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."

• James I had previously declared similar rights in the patents given to Walter Ralegh and later to Bartholomew Gilbert.

In these, James established that English colonies would not be like those of France and Spain - or those of any country's colonists before them.

• English colonists would be considered citizens who enjoyed the protection of English Common Law in the same way as those at home.
• Historian Edward Channing notes that

• this is of interest . . . since the English king "is under no man, but is under God and the law." This quote is from the writings of Henry of Bracton, an English jurist of the 13th century famous for his writings on law, particularly De Legibus et Consuetudinibus Angliae ("On the Laws and Customs of England") who, among other writings argued that a ruler was king only as he obtained and exercised power in a lawful manner - i.e., he placed law above king - which is, of course, what Magna Charta was about.
• And that, (Channing:) "Go where he would, so long as he settled on land claimed by England and acknowledged allegiance to the English crown, the Englishman carried with him as much of the Common Law of England as was applicable to his situation and was not repugnant to his other rights and privileges."

I.e., an Englishman anywhere in the English empire enjoyed the protection of English Common Law and that even the king was ruled by it.

This is a good start on rule of law.

This first charter lacked the self-rule allowances of subsequent charters, but it had a start as demonstrated by the declaration of English rights mentioned above.

• The charter created a Council for Virginia in England which was over all.
• Each 'colony' or 'company' should manage its affairs in England, and
• these to be appointed by king

• Each plantation had its council in America
• to be appointed as the king determined.

This was interesting, but a bit much when considering that the first colonies had difficulty surviving due to conditions that had nothing to do with the king's charter. But, as Channing points out, they were breaking new ground. Complete royal oversight was later abandoned in favor of giving more control to the investors who in turn invested partial self-government in the colonists. But the first colonists to land in Virginia in were to be governed by "Articles and Instructions for the Government of Virginia" issued by James I.

• The supreme council had executive, legislative, and judiciary functions. Its authority was absolute - as was considered necessary due to the high risk nature of the venture.
• The articles contained much legislative matter including how to deal with crime. Punishment for crime was more liberal than in England or of that attained in England for many years.(see pg 166 of Channing Vol 1)
• These instructions went so far as to tell the emigrants how they were to determine a proper site for a plantation.

• An interesting thing to note is that,

• while guaranteed English rights, the colonists seem to have been regarded almost as employees to conduct themselves as directed by councils appointed by the king.

In hind sight - they would have been better served by granting local autonomy as was later demonstrated in Jamestown.

The charter to follow three years later provided a higher degree of self-rule.

The colonists who travelled to America under this charter met with hardship that ended in the death of many of them.

• December 20, 1606, The Susan Constant, the Godspeed, and the Discovery sailed for the southern part of Virginia.

16 of the 120 died on the voyage.

• They entered Chesapeake Bay on May 6, 1607.

A few went to shore and were attacked by natives - 2 wounded.

• They built a fort on the James River.

• Six months later, less than half of those who reached Virginia were still alive due to malaria, Indian arrows, and hunger.
• There was also much internal strife. In January 1608, of the colonial council appointed by the king one had died of disease, one had been executed, two were waiting execution, leaving only two others alive and at large. The reasons are not apparent.
• One of the council recommended including all surviving members be consulted on governing, but this was considered too democratic and despotic rule was to continue.

• On an important point comparing the results of despotic vs. democratic rule, Channing writes: "In connection with his description of this expedition, Gardiner (History of England, ii, 253) makes the extraordinary statement that such enterprises needed strong government and not representative institutions, a dictum which is in direct opposition to the teaching of American history, as is evident from a comparison of the history of Virginia and Plymouth. In one there was a council with sufficient power to hang the king's subjects; in the other the majority ruled. Or compare new Netherland under the tyranny of the Dutch regime with the neighboring English colony of Connecticut, where the franchise, in those days, was most liberal."

Gardiner was a fine historian - writing in the 1880s - but he put greater trust in the rule of the elite class than in the choices made by a broader electorate as democracy would provide. One of his errors was his inability to gauge the character of the colonists. It was a different kind of person who would leave a relatively comfortable homeland for wilderness and hardship. But his fundamental error was philosophical. Perhaps he is to be forgiven when one try's to take on his perspective as an educated member of the upper class. America was born out of a unique American perspective - which we get to in other articles. But we digress.

• Of these first 197 colonists who sailed for Virginia from England in 1606 abd 1697, 53 were alive in April 1608.

This was typical of the first groups to sail to America and an important thing to understand and remember. Primarily men, but also women and children; these were the first heroes of American history.

The Charter of 1609

This was the 2nd Virginia charter. It went a step further in the granting of self-rule. In the charter of 1606 (the first Virginia charter), the common stockholders had no say in how the company was to be run. In this charter, the king placed government of the corporation and its plantations in their hands. This did not yet mean, however, having a local representative legislature. But that was soon to come.

New people came forward ready to continue the effort to colonize America. Some of these were motivated by politics (expanding the sphere of the English empire), some by missionary zeal, and some by a desire for material gain and to improve their current condition.

The failure of the 1st Virginia Charter was attributed to the fact that common stockholders had no say in its governance or direction. This was changed in the 2nd Virginia Charter as mentioned above.

The 2nd charter was given to a group of partners who set to work to raise money and recruit emigrants.

• They printed pamphlets which were designed to sell investors and emigrants on the venture and were, whether or not by intent, deceptive in the way it described the prospects.

• In the current language, 'planter' referred to anyone who emigrated to America and 'adventurer' referred to a stockholder who remained in England.

• Each adventurer received one common share in return for 12 pounds ten shillings.
• Each planter, male or female, over the age of 10 received one common share.
• Each planter, no matter their rank or station in England, was promised meat, drink, clothing, a house, orchard, garden and 100 acres for himself and each family member. (sign me up!)

• 200,000 pounds were raised and 500 emigrants were recruited from every English class.

• 500 sailed for the James River in 9 vessels on June 2, 1609. About 100 were women and children.

• 32 died of disease during the voyage.
• One vessel sank in a hurricane and another was driven into the Bermudas.
• 7 vessels reached the James River (the eighth did arrive later)

Upon their arrival, these emigrants were undeceived of the conditions that they were to encounter in their new home.

The English people that had survived from the previous attempt to colonize were dispersed and hungry, some living with the Indians.

• For all - newcomers and previous survivors - life was grim to the point of being hard to read about. Without recounting the details and all the causes, a year after this second sailing, 900 had actually landed in Virginia and 150 were still there.

These were tough people and survivors and became the nucleus of what was ultimately a successful colony.

• In 1619, 1650 people had sailed from England for Virginia. 300 had returned to England and there were 350 English living in Virginia. So 1000 had died en route or in Virginia.

As mentioned above, the company established by the 1609 charter was to govern the plantations rather than the king, but it was still a despotic rule in that the company wrote the governing regulations without taking the planters or their representatives into counsel. The code created by the company had the title "Articles, Laws and Orders, Divine, Politique, and Martial for the government of Virginia". The title is a good statement of the scope of these regulations.

• There was no religious tolerance. Only those who had taken the "Oath of Supremacy" could go to Virginia - which was de facto establishment of the Church of England and excluded Roman Catholics. There was a list of religious offences for which one could be flogged or sent to service in the galleys for six months. Some repeated offences could result in a death sentence. But, apparently, carrying out a death penalty was quite rare.

It should be remembered that this mirrored practice in England and it was, in practice, much more lenient than in England.

• Whatever the settlers produced went into a common stock and they were clothed and fed alike from it. They were, in effect, employees of the company. And the company was run like a commune.

• For that reason, much of the code addressed offenses to keep people as honest as possible in this regard with severe punishments. But it can be imagined how effective that must have been. Malingering was a punishable offence, but how could a requirement for everyone to work to his best ability be enforced? In fact, this approach had to, later, be abandoned with people given a right to keep what they produced. Not until then did the colony start to prosper.

• Perhaps the savior of the Virginia colony was tobacco. It grew well in Virginia, but did not sell in England until it was learned how to cure tobacco for the English market.

The Charter of 1609 was revoked in 1627(?). It made no difference to property owners in Virginia since it was a principle of English law that a legal title to any property cannot be divested without just cause. This principle, already in place from Virginia's beginning, is central to liberty.

• For the most part, Virginia colonists did not miss the company for a moment. Channing states that: "The story of viginia in the fifteen years following the dissolution of the company is one of slowly growing contentment and prosperity." (Channing Vol I, page 227)
• With the revocation, government of Virginia reverted to the crown. Ownership of unallocated land reverted to the crown.

In 1941, a commission was given to William Berkeley who, with his appointed council, were given "full power to direct and govern, correct and punish, the colonists, and order all affairs of peace and war within the colony." they were answerable to the Lord Commissioners and Committees for the Plantations.

• This commission reasserted that all planters should take the Oaths of allegiance and Supremacy - establishing the Curch of England. Refual was to result in being returned to England.
• The commission did require that a general ssembly be held yearly to make laws "as neas as may be to the laws of England." The Governor could veto them, but they were not required to be approved in England.

In practice, because of Berkeley's force of character, he ruled mostly as he wished in spite of the representative assembly.

• An important article in the commission required that all tobacco be shipped to England and only in English ships and that only English ships be permitted to trade in Virginia - which could be considered a quasi monopoly.

An Early Turning Point

In some ways, English Americans, before 1763, received a higher degree of self rule than those in England. In some ways they lead more liberal lives.

In Civicwiki articles, 'liberal', as an adjective, means endowed with liberty. As a noun it means a person whose political philosophy is one that holds liberty as fundamental to life.

There have been many turning points throughout history that turned a society toward or away from liberal life. In CW, we are interested in American society and liberty.

In May 1619, Sir Edwin Sandys was chosen treasurer of the Virginia Company.

• Sandys was Archbishop of York and the leading reformer of the time in Parliament.

• Sandys and his fellow reformers were liberal radicals.

These radical reformers in Parliament demanded a "law paramount", meaning a constitution.

Sandys was influenced by the republican spirit of Calvinism.

He had had a large influence on, as well as some direct input into, a book, The Ecclesiastical Polity, written by his tutor at Oxford, Richard Hooker. This book was quoted by John Locke in his second Essay on Government, which in turn greatly influenced American history.

Hooker spoke much of the 'natural equality of man' and a resultant 'golden rule' attitude.

• Sandys is reported to have proclaimed in Parliament "No successive king, but first elected. Election double of person and care; but both come in by consent of people, and with reciprocal conditions between king and people."

With this statement he denies the divine right of kings and asserts the supremacy of the people.

Sandys proposed (unsuccessfully) that persons accused of crime should be permitted to employ counsel in their defense.

He sought (again unsuccessfully) to rid England of relics of feudalism - wardships, feudal tenures, and purveyance.

He sought to overthrow monopolies (granted by the king) and for the introduction of free trade.

He was mostly unsuccessful due to the king's prerogative and the royal will.

• Through several turns of events, Sandys found himself in charge of the Virginia Company.

• Sandys and friends liberalized the granting of land to individuals and groups - part of which was to give survivors of earlier efforts larger quantities of land.
• Perhaps more importantly, they gave these landholders self-rule and made them independent of the Virginia Company officers in England
• Sandys also sought to secure a monopoly of the tobacco market of England (which may have been counter to Sandys' earlier opposition to monopolies, depending on how it was sought).
• Sandys sought also to have the whole trade of the colony - providing supplies in ships that would return with all of the tobacco export.

• So Sandys' plan was to grant freedom of government and religion and also to secure the English tobacco trade.

• The idea of self rule was put into practice - and it was allowed a fairly large span of control, but it was, in some sense, still despotic in that it was not a set of laws carefully crafted with fundamental human rights in mind. It the establishment of a legitimate church and the detailed regulation of moral and social behavior and of trade to be within the realm of legislative power.

• On July 30th, 1919 the first assembly of elected burgesses - 22 people from 11 locations - met in Jamestown.
• This assembly adopted new laws which drew heavily on their English background in regard to religion and social behavior. They established the Church of England and outlawed idleness, gambling, drunkenness, and 'excess in apparel'.

• The assembly directed the production of agricultural products.

• Tobacco was the most profitable, but its production was limited to stimulate the production of silk, flax, and grapes, as well as sufficient food for the colonists.

• The assembly also sat as a court of law. Sentences tended to be short and severe. For example, conviction might obtain a 4 day sentence - spent standing in a pillory with ears nailed to a board and being publically whipped each day - and then paying a fine.

The Role of Religion

It was a religious age. The clergy was considered to be on the same level as the military and the more important professions such as medical, legal, political. In some ways they were considered before those others.

• Colonies in America were not a haven for religious tolerance or freedom of religious conscience for quite a while.

• In Virginia, the Church of England was the official church through the first few charters.

• In the first charter, one was not allowed to emigrate to America without embracing the Church of England by taking the "Oath of Succession".
• When the Virginia colonists were granted self legislative rule through a representative assembly in 1619 by the Virginia Company (established by the second charter) , its first set of laws established the Church of England as the only permitted church, and they required attendance. Each absence from both morning and afternoon Sunday services produced a 3 shilling fine which went to the church.

It may seem a stretch to say that Christianity had a role in the establishment of Common Law or that Common Law was based on Christian principles, but the argument is made in Henry de Bracton's writings. In these he essentially establishes the foundation for the rule of law by saying that a ruler is king only through law - "law makes the king". He goes on to draw an analogy between rule of law and the example of Jesus. (See The king has no equal.) Bracton writes that the choices of Jesus Christ demonstrate the true mercy of God, "for though many ways were open to Him for his ineffable redemption of the human race, the true mercy of god chose this most powerful way to destroy the devils work, he would use not the power of force but the reason of justice. Thus he willed himself to be under the law that he might redeem those who live under it. For he did not wish to use force but judgment."

Calvinism played an influential role. The republican spirit of Calvinism appealed to Sir Edwin Sandys (Archbishop of York and Treasurer of the Virginia Company starting in 1619). (Sandys was a leader of the Parliamentary radicals who demanded a "law paramount" - a constitution. )(Channing Vol I, page 191)

Condition of Virginia

Alexander Brown's First Republic states that:

• 1606-1625 5649 emigrants left England for Virginia

1095 colonists were living in Virginia in 1625

• In a 12 month period in 1619 to 1620 1200 sailed for Virginia.

Of these 1000 died en route or in the colony by April 1920.

• In a 12 month period in 1622 to 1623, 347 died in the Indian massacre and 1000 died en route to Virginia or in the colony

These words are from Channing's Vol 1 (pg 205)

"During the years 1618 to 1624, Sandys, . . . made great and successful efforts to send over colonists and supplies; in three years' time no fewer than 3570 emigrants crossed the Atlantic to Virginia. As there were six hundred . . living in the colony at the beginning of this period, the total number . . . to be accounted for is 4170. In March 1622, before the Indian massacre, there were living in Virginia twelve hundred English colonists, showing that in three years nearly three thousand persons had perished from disease and starvation. The "massacre" cost the lives of three hundred and forty-seven more. Instead of carefully searching out the causes of the disasters, the company continued to pour setters into the colony; but in 1624, when a careful enumeration was made, there were only 1232 colonists alive, including in this number twenty three negro slaves."

Reports from members of Sandys' own family who traveled to Virginia painted a grim picture of the conditions of life in Virginia in those days.

Factors that caused people to leave England for America

The first Virginia colonists were a mixed bag that came for various reasons. The first were men of some means with servants and a small group of laborers. Those who came in 1609 were laborers and undesirables of all classes. The group in 1610 were skilled workers - badly needed.

In 1616, the profitability of tobacco changed the landscape somewhat.

• New settlers were then men with capital and others who came bound to service for a time by contract.

From about 1600, laws in England that governed the unemployed were illiberal and made it desirable to be somehow employed. Such laws were an attempt to deal with the large numbers of vagrants and beggars on the roads and they were much to the benefit of the ruling class.

• A person, without a skill (such as carpenter, tailor or butcher) or property and not being of gentle birth or a student, could be compelled to serve farm employment for one year and then could not leave the parish where employed without permission.
• During the harvest, local magistrates could even send those with skills to the fields.
• Laws were passes to allow vagrants (men and women) to be whipped and branded - a mark to allow identification of repeat offenders for which the punishment could be severe.
• The poor laws written in 1598 made the parishes responsible for their own poor. To avoid the burden of an increasing Parish poor population, vagabond punishment was harsh.
• Such people were turned over to the Virginia Company by magistrates.

With some of them being sent to America from prison - particularly if they had a skill like carpentry.

And some such people volunteered to escape their situation

• Of course, some chose to go to America for other reasons, and some of them would have been skilled, educated, and of gentle or even noble birth. But such sources could not have provided the need for labor that was needed in the new settlements.

A 'servant', in the colonies, was someone employed on a contract of indenture - which was quite common in the colonies. It was sufficiently common that the term came to refer to the colonial white working class in general - even if not indentured.

• A 'servant' could be anyone from an educated schoolmaster to a convict. Indenture was a common way to receive passage to America and employment upon arrival.

The term of indenture could vary from 2 to 7 years. While it was longer for rougher cases - such as convicts - once in America the past would be quickly forgotten and once the indenture completed, the 'servant' was free and could rise in the world.

• According to Channing (Vol I page 214) the farm worker in a Virginia settlement was clothed, fed, and housed better than if in England and had opportunity to rise in the world. He had virtually no such opportunity in England. Once the indenture was served, land could be obtained and the servant was suddenly a landowner.

The exception was the slave, who was becoming more numerous starting in 1619 with the arrival of a Dutch slave trade ship.

Some colonists were recruited and sent to Virginia by capitalists seeking to develop tobacco plantations. The grants they obtained usually had provisions for land in proportion the number of people they transported to Virginia.

• It was the liberty of the capitalist grantees to order the government of the people settled on their land. Such governments could not be 'repugnant to the laws of England'.

Maryland

Maryland was founded after the demise of the Virginia Company. It was about 100 years after the creation of the Church of England. Nonetheless, there was still considerable tension between the Established Church and the Roman Catholics. The Oaths of Allegiance and Supremacy were still required of many - particularly of those in positions of authority and clerics, but often also of emigrants to America. King Charles

Both Maryland and Carolana were created by charters issued to Cecilius Calvert, second Baron Baltimore (a Roman Catholic, son of Sir George Calvert who was had requested the charter but died prior to it being written), and to Sir Robert Heath, the Attorney General who had managed the legal side of the destruction of the Virginia Company. Carolana was the southern part of Virginia and Maryland the northern part from the Potomac to New England, with the Old Dominion in the middle.

The Maryland charter was issued in 1632. It was very like other charters that preceded it for Avalon, Carolana, and New Albion.

The statement of powers conferred on Baron Baltimore are confusing. While they appear on one hand to confer unlimited authority,

• there is a clause that laws may not be repugnant to the laws of England or that no part of the charter should be construed to diminish allegiance to the king.

• One clause states that churches must follow the Established Church of England, and all clergy were to acknowledge the religious leadership of the king by taking the Oath of Supremacy.
• It is to be noted that religious freedom was not a principle on which American colonies are founded. That was to come later. Most of the colonial charters required uniformity in religion.

These things notwithstanding, Maryland became the most liberal colony outside New England.

• The truth of such things is hard to verify, but Charles Calvert - son of Cecilius - in 1678 wrote, in defense of having brought a number of Catholics to Maryland, that recruits were in short supply and he had to take what he could get.

• And that those people demanded that all Christians should enjoy toleration in Maryland as condition for becoming the first planters in Maryland.
• Apparently, religious tolleration was a cause of success in Maryland. If this is so, it demonstrates that, to many colonists it mattered little to them if one were Catholic or Church of England and the charter clauses dictating religious participation were, to them a nuisance.

On the other hand, it certainly mattered to some . . .

The first voyage to maryland in November, 1633 carried both Catholics (including 3 Jesuit priests) and members of the Church of England.

• Though Catholic services were supposed to be conducted quietly and in private, they were not. The Jesuits seemed to be on a mission to establish a Catholic haven in the new colonies.
• The Catholics acquired considerable land in Maryland, and being far from England, were bold in their purpose of establishing an asylum for persecuted English Catholics, Charter rules notwithstanding.

They imported a fair amount of labor

They favored Canon Law over Parliament or Charter.

• Back in England, Calvert Lord Baltimore, got wind of this and, though a Catholic sympathizer, wisely understood that should this Catholic boldness become widely known, it could be the end of the Maryland charter.

He used the [Satutes of Mortmain] to divest the Jesuits of their land reached an agreement that headed off confrontation.(Channing Vol I pages 261, 262)

• Nonetheless, it was apparent that Maryland favored, or at least tolerated Catholics. For this reason, many protestans sought out Virginia or New England rather than Maryland.
• But also, and perhaps more importantly, Baltimore was more strict about the terms on which land was granted than Virginia. The terms were not so different than Virginia, but in Virginia they were not strictly enforced - quit rents for example.

And perhaps more importantly than that, the constitutional arrangement of Maryland were much less liberal.

• Legislative rights were exercised by the proprietor with consent of the freemen of the province, represented and assembled in a manner decided by the proprietor.

Ordinances were made by the proprietor - which had to be in accord with English laws.

• Such ordinances had to recognize property rights. They could not oblige or take the property of any person.
• Such clauses granted and then limited the power of the proprietor. As he exercised them, growth of Maryland and the freedom of its people depended.

• Baltimore thought to initiate all laws to which the freemen should give their assent.

The freemen thought to initiate laws themselves.

It was a political contest.

Monopoly - an infringement of rights

The term 'monopoly' had a meaning to Americans, in the time of the movement for American independence, that was different from how it is used today. The one and only meaning then was the monopoly granted by the British crown or Parliament, against which there was no appeal or legal avenue of competition. It was the government reserving a business or trade rights for a specific company or group. Such monopolies were repugnant to Americans because they were an infringement on liberty. 'Monopoly' came to mean something completely different in 19th and 20th century America and should not be confused with the founders distaste for government chartered monopolies.

The first monopoly that affected the colonies was the monopoly for trading and transporting colonial tobacco.

From Channing Vol I (page 220)

"The prosperity of Virginia, upon which was contingent the very life of the colony and the hope of pecuniary return for the company and its shareholders, was dependent upon the profitable production of tobacco. This in turn required at least something approaching the monopoly of the English tobacco trade. In early life, and even as late as 1620-21, Sandys strongly opposed the system of monopolies which had come down from Elizabeth; but he saw no harm in proposing legislation to exclude Spanish tobacco from England. ... his desires were based upon the necessity of protecting the Virginia tobacco interest . . ."

"The (Virginia) Company was between the upper and nether millsones; it wished to handle the whole tobacco crop, the king wished to make all he could in the way of taxation, the persons who collected the taxes strove to make them as heavy as possible that their profits might be large, and the growers wished to have the freest possible market for their staple. Furthermore, the company tried to monopolize the whole import trade of the colony."

• One way forward from the tangle was a joint government/Company monopoly to handle the Virginia crop. That was tried, but failed for lack of agreement. it was ultimately the undoing of the Virginia Company.

So a monopoly was not yet created in this instance, but it was to come.

In 1641, 14 years after revocation of the Charter of 1609, a commission was given to William Berkeley to govern Virginia. One of the articles of the commission was that Virginia tobacco could be shipped only to England and only in English vessels; and that only English vessels were permitted to trade in Virginia.

The colonists viewed this as monopoly since it restricted their freedom of choosing more profitable markets. More monopolies would be built around other commodities and the trade of goods in general.

---