THE

CHAPTER III

THE AMERICAN CHARTER OF 1606

HE American Charter of 1606, or the Virginia Charter, so-called, was a regulative act for two purposes; first, to grant to certain persons, who were to settle and reside in America and form there two political communities dependent upon Great Britain,—one to be called "The First Colony of Virginia" and the other "The Second Colony of Virginia "—the title to the land adjacent to their first settlements for a space one hundred miles square; and, second, to establish a Central Council in England for the superintendence of the affairs of all the American dependencies, and a Local Council in each Colony to advise with the Governor of the Colony.

At the time this Charter was granted, everything was most favorable in England for the adoption of a just plan of colonial administration. King James had come to England from Scotland, and was trying to consolidate the two Kingdoms. English jurisprudence and politics were being studied by some of the most able and publicspirited men that England has ever produced, and the King was, at this time, acting on their advice. The Charter is said to have been drawn by Lord Chief Justice Popham, who was one of the most distinguished of the Chief Justices of the King's Bench. It doubtless was in part the product of the mind of Sir Francis Bacon.

Mr. Hugh Edward Egerton, in his History of the Colonial Policy of Great Britain, published in 1897, says that the Central Council established by this Charter was 'a new Privy Council for Colonial Purposes." While

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this statement is correct so far as it goes, it does not fully state the character of this Council. The Privy Council was a purely consultative body-that is, it had, apart from the King, no powers of administration. Though there was nothing, and of course could have been nothing, in the Charter to prevent the King from treating the Central Council established by it as a merely consultative body and personally managing the affairs of the Colonies, yet, if he did not choose to do so, the Council could administer the affairs of the Colonies without his concurrence,-which the Privy Council, as such, or a committee of it, could not have done. It was therefore a new Privy Council for Colonial Purposes and more, -it was an Imperial Council and an Imperial Secretary of State. It was directly subordinate to the King, and had actual administrative powers subject to the King's visitorial and superintending power.

This Imperial Administrative Council, called "Our Council for Virginia," in contradistinction to the Council resident in each Colony for the purposes of local administration, which was called" the Council of the Colony," was thus described in the Charter:

There shall be a Council, established here in England, which shall consist of thirteen persons, to be for that purpose appointed by us, our heirs and successors, which shall be called our Council for Virginia; and shall, from time to time, have the superior managing and direction, only of and for all matters that shall or may concern the government, as well of the several Colonies as of and for any other part or place, within the aforesaid precincts of four and thirty and five and forty degrees above mentioned.

The Charter, by creating this Imperial Administrative Council, contained a recognition of the distinction between the functions of the King acting within the State, and his functions when acting for England as the Imperial

State constituting the Head of the British Empire. The underlying thought was that the existence of colonies of England necessarily implied that England was related to them as their Imperial State; that the functions of the State acting upon communities or corporations outside itself were distinct in character from its functions when acting upon communities or corporations within itself; and that the body of persons appointed to advise and act for the King in the performance of his duties as a part of the government of the State, when the State was fulfilling its functions toward communities and corporations within itself, ought to be distinct from the body appointed to advise him when the State was fulfilling its functions toward communities and corporations outside itself.

It is noticeable that this Imperial Administrative Council was not limited to the superintendence of the affairs of the two Colonies mentioned in the Charter, but was to have the superintendence of any other part or place within the aforesaid precincts of four and thirty and five and forty degrees above mentioned "-that is to say, between the northern boundary of South Carolina as at present established, and the present city of Eastport, Maine, and extending westward to the Pacific Ocean. The power was large enough to place within the charge of this Council all the Indian tribes which should be conquered or should place themselves under the protection of England, and all settlements of foreigners which should be conquered or should submit to dependence on that State. Instead of being called "Our Council for Virginia," it would more properly have been called "The Imperial Administrative Council in Charge of the Relations between England and the Dependencies in America."

By the King's Orders and Instructions of November 20, 1606, the powers of the Council in England (called "the King's Council for Virginia") were thus defined:

They shall have full power and authority, at the pleasure and in the name of his Majesty, his heirs or successors, to give directions to the Councils resident in America, for the good government of the people there, and for the proper ordering. and disposing all causes within the same, in substance as near to the common law of England, and the equity thereof, as may be.

In these Instructions the word "dispose" is used with the word "order" as describing the power which the Council were to exercise" at the pleasure and in the name of " the King,-that is to say, to describe the power of the King.

It will be advisable, in view of the important part which the word dispose" plays in the clause of the Constitution of the United States which relates to the administration of dependencies, and in the Acts of Congress preceding the adoption of the Constitution, to ascertain at this point the exact meaning of that word.

The word "dispose" was the word commonly used in the public acts of the time to express the exercise of governmental power which was held under a condition that it should be exercised expertly and according to just principles, just as the word disposer was the most appropriate in the French language to express the same idea. Contemporary examples of this use are the following:

For the handling, ordering and disposing of matters and affairs of greater weight and importance, and such as shall or may in any sort concern the weal public and general good of the said Company and Plantation, as, namely, the manner of government from time to time to be used, the ordering and disposing of the lands and possessions, and the settling or establishing of a trade there, or such like, there shall be held and kept every year four Great and General Courts. (Charter of the Virginia Company of 1611.)

The said Governor and Assistants shall apply themselves to take care for the best disposing and ordering of the general business and affairs of, for and concerning the said lands and premises hereby mentioned to be granted, and the plantation thereof and the government of the people there. (Charter of the Massachusetts Bay Company of 1629; also Charter of Rhode Island of 1663.)

The Commissioners shall have power and authority to provide for, order and dispose all things which they shall, from time to time, find most advantageous for the said Plantation. . Always reserving to the said Commissioners power and authority for to dispose the general government of that Plantation, as it stands in relation to the rest of the Plantations in America, as they shall conceive, from time to time, most conducing to the general good of the said Plantation, the honor of his Majesty, and the service of the State. of Providence Plantation of 1644.)

(Charter

The said General Assembly shall have full power and authority .. to elect and constitute such officers as they shall think fit and requisite for the ordering, managing and disposing of the affairs of the said Governor and Company, and their successors . . . and to establish laws for the directing, ruling and disposing of all other matters and things, whereby our said people, inhabitants there, may be peaceably, civilly and religiously governed. (Charter of Connecticut of 1662.)

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The word dispose" was peculiarly appropriate to express this idea, whether it be considered from the standpoint of its derivation or of its usage in general literature.

The first meaning of the word "dispose" is "to place apart," and,—as placing things apart implies a purpose in so doing,-to dispose objects, physical or mental, soon came to mean to place them apart for the purpose of setting them in some predetermined order or arrangement. In military science, it is proper and usual to speak of disposing troops, or disposing of troops, so as to put them in a certain order or arrangement. The