The Development of English Colonization
12.5.1 The First English Colony: Virginia (1607)
The peace created a favorable scenario for merchants and investors. The very same year that peace was signed with Spain, a group of English merchants asked James I for permission to explore the territory of Virginia, officially established in 1585 by Sir Walter Raleigh on Roanoke Island, off the coast of present-day North Carolina, but it was abandoned.[587] The British would not successfully settle the area until 1607.
The first lasting—though struggling and suffering—settlement came at Jamestown, named in honor of the king who authorized the arrival of the first colonists.12.5.1.1 Royal Authorization, but Private Initiative
When James I granted them permission to settle the area the expedition’s backers were two trading companies, one controlled by investors in London and another by a group from Plymouth and Bristol.[588] The London and Plymouth companies were created by James I in 1606, for the purpose of establishing the first permanent English settlements in North America, one to colonize southern Virginia, and the other to settle the northern Virginia.[589]
The London Company was the first to organize an expedition to the New World, consisting of 3 boats and 144 people under the command of Captain John Smith,[590] whose relations with the local Indians, the Powhatan confederation, were key to the survival of Jamestown (Price 2003, 47-48).[591]
12.5.1.2 A Royal Colony, but an Autonomous One
On 12 March 1612, the Virginia Company received its Third Charter, which included royal authorization to administrate its own affairs in Virginia (Bemiss 1993, 76-94). This concession of self-government allowed the investors to appoint a governor, who was granted powers sufficient to rule the colony.
In 1619, an assembly of colonists termed the House of Burgesses (Vile 2010, 1) was convened, composed of delegates from each district. This was the first English representative body in America (Rabushka 2008, 138). The House began meeting in Jamestown to advise the governor. While its resolutions were not binding upon the owners of the Company, it proved a model representative assembly for those English colonies which would later be established in North America.[592]12.5.2 Religious Colonization
The fact that the English Crown was sanctioning settlements in America drew the attention of a group of religious dissidents later known as the Pilgrims,[593] a group interested in emigrating to escape persecution by the official Church of England. The Pilgrims were more radical than Cromwell’s Puritans who sought to “purify” the Anglican Church by purging it of any Catholic vestiges, establishing simpler services, and rejecting the mediation of priests (pastors). While the Puritans stopped short of calling for a break with the Church presided over by the king, the Pilgrims called for total rupture, as they felt that the Church of England was beyond redemption, too corrupt to be saved. In fact, they opposed the very idea that the church ought to be organized hierarchically, as in their view each congregation should be able to administrate its own affairs without the mediation of a church hierarchy. As they outright rejected the authority of the official Church, they had no choice but to emigrate.
To escape from Anglicanism in 1608, as a first step, they took refuge in Leiden (Netherlands). However, after 10 years living in the Protestant Netherlands (United Provinces), they feared that their children would end up shedding their British traditions. Thus, the group of Puritan Separatists which would come to be known as the Pilgrims resolved to emigrate to the New World to create a new society in which they could freely practice their religion.
As they had no money to organize the expedition, they adopted the model employed to colonize Virginia, establishing a trading company, backed by a number of investors who demanded half the profits. The Pilgrims were eventually joined by other emigrants. In September of 1620, a group of 100 people, of which only 35 were Pilgrims (Johnson 2006, 11-17), set sail from Plymouth in a ship called the Mayflower. Glad to be rid of these religious dissenters, James I authorized their departure for Virginia, and agreed not to disturb them as long as they caused no problems.[594]12.5.2.1 The Mayflower Compact: The First American Constitution?
If the Mayflower had actually reached Virginia, its voyage would never have gone down in history as it did. After a very rough journey, the vessel ended up much farther north than its intended destination, landing at Cape Cod (in present-day Massachusetts), its passengers and crew weary of enduring storms (Bunker 2010, 53-54).
The good news was that the land where they had arrived was far outside the jurisdiction of the London Company operating in Virginia. Thus, the contingent of Pilgrims on board the Mayflower, concluding that circumstances warranted their disavowal of royal authority, before leaving the ship acted to draft a contract to be signed by all the passengers.
In this document, the Mayflower Compact, all its signatories agreed, on November 11, 1620, “to covenant and combine ourselves together into a civil Body Politic, for our better Ordering and Preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute, and frame such just and equal laws, ordinances, acts, constitutions and offices, from time to time, as shall be thought most meet and convenient for the general good of the Colony, unto which we promise all due submission and obedience”. All of this was done in the name of God and as loyal subjects of the King of England, “our sovereign lord”.[595] In any case, many U.S.
constitutional scholars consider this unique “contract” the first instance of American constitutionalism.[596]12.5.2.2 Thanksgiving Day
In November of the following year, 1621, the Pilgrims, after surviving a dreadful first year fraught with calamities,[597] celebrated the first Thanksgiving Day in American history (Hilton 2005, 170). This tradition is still observed on the fourth Thursday of November, and certainly represents America’s most cherished holiday unique to the American nation (Hodgson 2006).[598]
12.5.2.3 The Great Migration
James I died in 1625, succeeded by Charles I (1625-1649), who was far less tolerant than his father with the Puritans. As a result of the new monarch’s policies, as of 1630, Englishmen began to abandon their country en masse to settle in America on expeditions financed through the establishment of trading companies. In the fall of 1630, one of them, the Massachusetts Bay Company, founded the city of Boston. Over the next 10 years, there occurred what in American historiography has been called the Great Puritan Migration: by 1640 more than 13,000 Puritans had settled in Massachusetts (Anderson 1991, 15). These emigrants followed the model of selfgovernment established by the Pilgrims on the Mayflower in 1620, with each adult male involved in his group’s decisions.[599] According to the 1629 Massachusetts Bay Company original charter, the colonists were permitted to choose a governor and appoint an advisory council, as well as elect representatives to a local assembly, called the General Court (Bremer 2003, 159-160)[600]—a practice owing much to the character of Jonathan Winthrop, the leader of the Massachusetts community.[601]
12.5.2.4 Harvard’s First Students
As the Puritans believed it essential that all citizens should be able to read the Bible, from the very start, they began to take a great interest in creating a high level educational system.
Thus, Harvard College was founded in 1636,[602] and in 1647, the General Court passed a law declaring basic public education obligatory.[603] This strong interest for education was considered by Edmond Burke (1729-1797) one of the most powerful causes of the “fierce spirit of liberty” that prevailed in the English colonies (Burke 1854, 467-468).12.5.2.5 The Puritan Inquisition
The success of the Massachusetts Bay Company prompted the establishment of new colonies, such as Rhode Island, founded by a series of dissident Puritans lead by the Reverend Roger Williams, Samuel Gorton, and Anne Hutchinson, who had been banished from Massachusetts. All of them felt oppressed by the religious fundamentalism that prevailed in said colony, which was witness to a number of shameful episodes, including the Salem Witch Trials (1692-1693).[604] Rhode Island received its charter from the Westminster Parliament in 1644, later confirmed by Charles II after the Restoration (Jones 2006, 174-175).
During the seventeenth century, the number of English colonists in America also rose considerably because of the introduction of a third foundational model: the “proprietary colony”.
12.5.3 The Proprietary Colonies
In addition to royal colonies, like Virginia, and religious ones, like Massachusetts, in Colonial America there appeared the third modality of proprietary colonies created by the king through the concession of a territory to a person or family charged with financing and organizing colonization.[605]
12.5.3.1 An Autonomous Catholic Colony: Maryland
The first colony of this type was Maryland,[606] which was granted to Lord Baltimore, who would lend his name to the colony’s first city and the present capital of the state. In 1629, George Calvert, First Lord Baltimore—an English politician, MP, and Secretary of State under King James I—asked King Charles I for a charter to establish the Province of Maryland, intended, among other things, as a haven for English Catholics in the New World.
In 1632, Charles I granted its proprietor 7 million acres (some 3 million hectares) in the area. Baltimore died the same year he received the proprietorship, but his children, Cecil and Leonard, inherited their father’s rights to the overseas territory. The two brothers were determined to realize their father’s vision of a new colony which would serve as a haven for England’s Catholic nobility, which had been persecuted during the era of the Tudors. Thus, while Cecil remained in London to curry royal favor and obtain financial support for the project, Leonard led the first expedition, which landed on American shores on March 3, 1634 (Menard and Carr 1982).A private colony, Maryland enjoyed a considerable degree of legal autonomy. Under the terms of the royal grant issued, the Calverts were almost independent in their American dominion. They could issue laws, organize their own court system, appoint officials, and freely distribute land. They did not, however, establish a feudal system because, in practice, to attract settlers, the Calverts had to grant them a degree of autonomy similar to that in the other English colonies, as otherwise immigrants would have headed elsewhere. Thus, the settlers of Maryland also enjoyed a great degree of legal and political autonomy. The Calverts did use the powers granted them by their royal charter to adopt the Toleration Act in 1649, the year King Charles I of England was decapitated. This measure guaranteed religious liberty through Maryland to “anyone who believed in Jesus Christ”.[607]
12.5.3.2 The Founding of New Hampshire and Maine
New Hampshire and Maine were other proprietary colonies, at least originally, the former at first the private property of Captain John Mason, which he sold to the Crown. Maine had belonged to Sir Ferdinando Gorges, who sought to establish a feudal regime there before selling it to Massachusetts (Esbeck 2004, 1530-1537).[608]
12.5.4 New Colonies After the Restoration (1660)
During the English Civil War and under Cromwell’s rule, new English colonies were not founded in America. After 1660, however, and the restoration of the Stuarts, with Charles II, a new wave of migration departed from England for the New World. In fact, this was the period during which most of the English colonies were founded.[609] The model preferred by the new monarch was the granting of proprietary colonies to allies who had supported him in exile during the Cromwellian Protectorate.
In 1662, the colony of Connecticut broke away from Massachusetts after obtaining a royal charter that consolidated the Fundamental Orders adopted by Connecticut’s colonial council in 1639 (Kemp 2010, 37-41). A year later, Charles II granted new colonial proprietorships to Lord Ashley, Earl of Shaftesbury, and Sir John Colleton to exploit the lands between southern Virginia and Spanish Florida. Thus arose in 1663, a new colony dubbed “Carolina” in honor of the English King (from the Latin word for Charles, Carolus).
12.5.4.1 Growing Political and Legal Autonomy
Carolina was a private colony, and its charter granted the colonists settling in it extensive legal, political and administrative autonomy. This was consolidated thanks to its base of laws and help from the philosopher John Locke, then Lord Ashley’s secretary, and one of the promoters of Carolina’s colonization. Locke assisted in authoring a set of “Fundamental Constitutions” which in general terms followed the model previously established in Virginia and Maryland, and according to which the settlers, in addition to owning their lands, enjoyed great political and legal autonomy.[610] Significant settlement of Carolina began in 1670, when Charlestown (named in honor of King Charles) was founded as the colony’s first city.[611] In 1729, the owners of the colony sold it to the crown and King George II split the territory into two provinces: South Carolina and North Carolina.
The proprietary colony model was also used to create New Jersey (1664), Pennsylvania (1681) and Georgia (1733), the latter being the first not-for-profit American colony; its promoters were a group of philanthropists in London, led by James Oglethorpe,[612] determined to give a second chance to “honest people” who had been imprisoned for debt in England. Thus, in 1732 they obtained from George II a charter allowing them to create and administrate the new colony “without benefit for themselves” for a period of 21 years.[613]
12.5.4.2 The War Against Holland and the Origins of New York,
New Jersey and Delaware (1664-1667)
In 1664, King Charles II of England ordered attacks upon Dutch possessions in North America. In March of that year, prior to the outbreak of war, the English monarch bestowed his brother, the Duke of York (the future James II), with the largest territorial grant ever issued by a British sovereign, encompassing not only the current state of New York, but the entire region between the Connecticut and Delaware rivers. The concession gave the Duke of York immense powers over his American dominions. He did not need the people’s consent to enact laws and regulations, he could organize the government as he saw fit, and dispose of his lands however he wished. In fact, the first thing he did was to cede a significant portion of his dominions to two friends: Sir George Carteret and Lord Berkeley, the governor of Virginia’s brother. Both thereby became proprietors of what would become New Jersey, a territory which began to be settled in 1665. The need to attract settlers spurred the proprietors to make generous concessions concerning the property terms and the political and legal autonomy to be enjoyed by those establishing themselves in the new colony.[614]
The war with Holland was short and the British were victorious. The conflict ended with the signing of the Westminster Treaty (1667), through which the United Provinces ceded to Britain the territories corresponding to the present-day states of
New York, Delaware and New Jersey. The city of New Amsterdam became, of course, New York.[615]
12.5.4.3 The Singular Case of Pennsylvania (1681)
Of all the English colonies in North America, the only one that was most truly the work of one man was Pennsylvania. The colony’s proprietor, William Penn (Pennsylvania meaning “Penn’s forest”) personally took charge of bringing colonists from Europe, and established a legal system based on the principle of religious freedom, which today constitutes one of the cornerstones of the United States’ constitutional system. In 1681, William Penn received from the Duke of York the property for the colony that bears the former’s name, and the corresponding charter granted by King Charles II (Soderlund 1983, 39-50). A year later, he personally began to organize the colony, committed to the premise that it would welcome any and all, regardless of their religious beliefs. Symbolically, Penn founded the city of Philadelphia (meaning the “city of brotherly love”) prior to setting down the conditions governing the colony in a series of charters which would come to constitute the new colony’s constitutional framework.[616]
12.5.5 Political Variety and Legal Autonomy of the English Colonies in America
Based upon the three colonial models examined, 13 colonies were founded between 1607 (the founding of the first colony, Virginia) and 1733 (Georgia, the last), and gradually settled. Despite the diversity of colonial regimes it may be said that the English developed a uniform, basic model of colonial rule in America, though the idea of creating a uniform system of administration in the colonies, bringing all in line with a common type, and rendering them more dependent on the Crown, developed very slowly (Andrews 2004, 37-38). Regardless of whether the colony had been created directly via a royal grant or by the initiative of its settlers, English political and legal institutions were strongly embraced in each American colony. This pattern included the introduction of common law, the concept of private property, the election of an assembly of representatives to discuss common issues, and the development of local administrative systems. The government in London limited itself to retaining the right to veto any action considered contrary to the interests of the Crown in the colonies, and to controlling foreign policy.[617]
Each colony had its own governor, appointed by the king in the royal colonies, and by the proprietors of the private colonies. In the religious colonies, meanwhile, they were elected by the settlers themselves. The governor applied the laws of the colony and appointed intermediate-level officials, summoned and dissolved the assemblies, and took the lead proposing legislation. In principle, the governors could veto laws approved by the assembly, but they did not tend to do so, as they depended financially—even for their own salaries—on the taxes which the assemblies approved.[618] It was the king who generally appointed the top officials and judges, though in the private colonies it was the proprietors who appointed the magistrates. In the religious colonies, jury trials became standard practice, through which the resolution of cases was entrusted to common citizens.
In every colony there was a legislative assembly, their creation and practices modeled on the Parliament of Westminster. Thus, the bicameral structure prevailed, with one chamber more oriented towards the elite, and one more democratic. The latter chamber was elected by the colonists and wielded legislative and financial powers, including the approval of taxes. The franchise requirements varied, though in general all white male adults could vote. In the royal colonies, the members of the upper chambers, the senates, were appointed by the king and their function was to advise the governor. Although theoretically the lower chambers (assemblies) had limited powers, in practice it was these which ended up dominating colonial government.
Finally, it is important to underscore that each colony had its own “constitutional system” based on the political instrument through which it had been founded—that is, the type of charter or sanction which the colony had received. In most cases there were other rules and regulations stipulated in the royal charters laying down the basic legal framework which was to govern colonial life.[619] In some cases, these regulations took the form of genuine constitutional documents, as in the case of the “Fundamental Constitutions” drafted by John Locke for Carolina, or the “Charter of Privileges” issued in 1701 by William Penn to his colony in Pennsylvania.
Because each colony had been founded for different reasons and under different circumstances, the government in London was slow to consider the king’s possessions in the New World as an integrated whole. It is extremely significant that during the first half of the seventeenth century, the English government made scarcely any attempt to control the colonies through a system of agents, as they were only sent when required (Andrews 2004, 36).[620] In fact, the colonies maintained their autonomy until 1754, when the English clashed with their French counterparts settled in modern-day Canada. In the war between these countries, the colonists would receive the unconditional support of the British monarchy, which hitherto had acted as a mere umpire (Hoffmann 2013). For the first time, Britain was forced to directly intervene in territories which, though theoretically subject to it since the seventeenth century, had previously enjoyed considerable autonomy.
12.6