One might reasonably wonder why the Massachusetts Bay Charter of 1629 is of any but antiquarian interest in the twenty-first century. A leading scholar on constitutions and constitutionalism, Charles H. McIlwain (1871–1968), provided an answer. He wrote that the Massachusetts Charter of 1629 “is on the whole, the most important of all our colonial charters in its constitutional results.”Footnote ¹ Its importance springs from the fact that the “first American constitution was an outgrowth of the self-government under the first Massachusetts Charter.”Footnote ² He added that the influence of this charter was not restricted to the late eighteenth century, because in subsequent centuries, governments all over the world have included elements from the Massachusetts Charter that define them as constitutional states. As McIlwain pointed out, “a disproportionately large number [of such states have constitutions that] come either from Massachusetts or from other colonies which were early subject, like her, to the influence of political ideas and political expedients which the founders of this Commonwealth brought with them—or devised soon afterward under authority” of the 1629 Charter.Footnote ³

In recent times, in the past generation or thereabouts, interest in the colonial charters has increased as a result of lawsuits by Indian tribes in the United States seeking to regain lands that they argue were obtained illegally.Footnote ⁴ Indigenous peoples in Canada, Australia, and New Zealand have filed similar suits.Footnote ⁵ Many of these suits involved the question of on what legal premises did the Europeans lay claim to indigenous lands? Much of that debate revolved around the argument that Europeans claimed that the lands involved were terra nullius, that is, that no one could claim ownership because those who were there only moved over the land and did not farm it and otherwise develop it.Footnote ⁶

McIlwain's forceful appreciation of the importance of the Massachusetts Charter, focused as it was on its long-term significance, overlooked an important aspect of the charter: its origins and the origin of the terms that it contained. The reason for raising this issue is that the English colonial charters did not develop organically from the English Common Law tradition. As John Adams pointed out in his Novanglus essays, “colonization is casus omissus at common law,” meaning that “there was no provision made in this law for governing colonies beyond the Atlantic…nor for the king to grant charters to subjects to settle in foreign countries.”Footnote ⁷ That being the case, on what basis did English kings issue charters for colonies in North America, how did they determine how such colonies should be administered and regulated, how did they express their intentions, and how did legal draftsmen create the language employed in the charters to express these goals? To do these things they borrowed from three legal traditions.

Describing the English charters as containing elements drawn from three legal traditions is not a novel concept. Various writers, such as Ken MacMillan, Anthony Pagden, and Stuart Banner, to name a few, have noted these individual elements for a long time, but not all together. Bring them together, however, and they can be seen as constituent elements in the gradual development of an English legal tradition that to a large degree filled the casus omissus that Adams identified in the Common Law. Seen in this light, the charters contain the foundational elements of a theory of international relations designed to regulate relations among the developing European overseas empires. In other words, they should be seen as an important aspect of the legal developments that led to the work of Hugo Grotius (1583–1645).

Adams not only raised the issue of the basis on which the Stuart kings issued charters for the settlement of North America, he also provided a partial answer. In his opinion, when Henry VIII (1509–47) rejected papal authority, “he and his courtiers seemed to think that all the rights of the holy see were transferred to him” with the result that “a king of England had a right to all the land his subjects could find, not possessed by any Christian state or prince, though possessed by heathen or infidel nations.”Footnote ⁸ This belief in turn “seems to have deluded the nation about the time of the settlement of the colonies.”Footnote ⁹ Thus, the charters were based on the assumption that the king of England as supreme head of the church possessed the powers claimed by the pope, associating the English colonial charters with papal claims that Adams judged “the most impertinent and fantastical ideas that ever got into a human pericranium.”Footnote ¹⁰ His goal was to deny that the king had more right to grant the lands of non-Christians to Englishmen than the pope had to grant the Americas to Spain. In saying this, he was wrong, however, to assert that the papacy had claimed a right to award the lands of “infidels” to Christians, but he was correct in seeing the papal origins of the language that the Stuarts employed.Footnote ¹¹ It is clear that the early charters were to some degree modeled on Alexander VI's Inter caetera, the bull (actually three bulls) issued in 1493 responding to the results of Columbus's first voyage. The English recognized the pope's authority to issue such documents, but also pointed out that he had no authority to authorize European Christian nations to take over the lands of “infidels” simply because they were not Christians.Footnote ¹²

To understand the purpose of the Massachusetts Charter and how the lawyers constructed it, one must begin with Adams's observation about the origins of the Stuart charters in papal claims to universal papal jurisdiction, but that is not the only element of the charter. The charter contains elements of three legal traditions: papal, Spanish, and English, joined together in a somewhat discordant union.Footnote ¹³

The first point to consider is: What did the Massachusetts Charter of 1629 actually grant to the colonists and on what basis did Charles I (1625–49) act? At first glance, it would seem obvious that by the charter of 1629, the king of England granted a specific bloc of land in North America to the Puritans who planned to settle there. One might ask by what right King Charles I made such a grant, and by what right could the colonists occupy the land. It is often asserted, by Adams, for example, that the colonial charters claimed that Christian rulers could seize the lands from the Indian inhabitants, because the Indians had no legal right to the lands they occupied, because as hunter-gatherers, they did not farm the land and live in settled communities.Footnote ¹⁴ Another argument was that the land was abandoned; that is, it was terra nullius, and, therefore, open to settlement by any people who settled it.Footnote ¹⁵ Legal historians have also argued that medieval and early modern European governments employed “the Doctrine of Discovery” as the basis for making “legal claims to own the lands, assets, and human rights of indigenous peoples all over the world in the fifteenth through twentieth centuries.”Footnote ¹⁶ Finally, there was the argument that “all Calvinists…adhered to the view that as infidels the Native Americans could have no share in God's grace…and could have no standing under the law.”Footnote ¹⁷ In fact, the Charter of Massachusetts did not grant any land to the colonists.

A second line of argument about the charters is that although they did not grant land, they did claim sovereignty of some sort over the land of the native population. Ken MacMillan argues that English monarchs claimed “sovereign and prerogative rights and responsibilities” that authorized them “to distribute newfound land, grant monopolies, and oversee foreign trade.”Footnote ¹⁸ The charters do not, however, make such a claim. It is clear that English jurisdiction over land in the New World was the result of the acquisition of such land by English colonists, who then held it in socage.

In the final analysis, the charter neither granted land nor asserted some form of sovereignty over the New World. What it did do was authorize the transfer of the rights and privileges that James I (1603–25) had previously granted in 1620 to the “Councell established at Plymouth, in the County of Devon, for the planting, ruling, ordering, and governing of Newe England in America.”Footnote ¹⁹ By this charter, James I had granted corporate status to a group of petitioners, making them “one distinct and entire Body by themselves” and “granted unto them divers Liberties, Priveliges, Enlargements, and Immunityes.”Footnote ²⁰ This corporation was authorized to explore a particular part of North America where the incorporators could search for gold and silver, engage in trade with the inhabitants, or settle there if the corporation could acquire land. The charter also outlined the form of government that the colonists should establish if they created a colony. If they were successful in establishing themselves in the designated region, the king would protect the colonists’ interests by granting them a monopoly of access to the specified region so that no Englishman could enter the assigned region without the permission of the corporation. In addition, the Charter announced to other European rulers that the English were not interested in entering or occupying any lands already effectively possessed by other emerging European empires, and expected the same consideration in return.

Adams was not the only one to recognize the echoes of Inter caetera in the charters. As Ken Macmillan has pointed out, in the mid-sixteenth century, as the English for the first time took a serious interest in North America, the government called on John Dee (1527–1608), mathematician, alchemist, and proponent of overseas expansion, to provide “legal justifications to its sovereign rights to establish an empire in the north seas.” Dee did so by demonstrating that the English had discovered North America long ago, well before Columbus's voyages, and providing a basis for a claim to possession, a claim that however was “in jeopardy of being usurped because they [the lands claimed by the English] were not currently settled and governed by the English crown.” Dee also argued, like Alexander VI in Inter caetera, that it was the responsibility of Christian rulers to spread Christianity by occupying the lands of “infidels”.Footnote ²¹

Thus, in the final analysis, the primary purpose of the Charter was to regulate English entry into the Americas and to minimize, if not completely prevent, conflict among English colonizers on the one hand and wars between England and the various overseas empires on the other.Footnote ²² How the potential colonists acquired possession of land or any product such as gold or silver, in the specified region of North America, was up to them. In doing this, charters such as that of Massachusetts in 1629 were designed to do what Alexander VI's Inter caetera was designed to do: to regulate European entry into the New World in such a way as to eliminate the opportunities for conflict among the peoples involved.

The Charter of Massachusetts (1629) opened with a reference to the Charter of New England (1620): James I “HATH given and graunted vunto the Councell established at Plymouth, in the County of Devon, for the planting, ruling, ordering, and governing of Newe England in America,” specifically in the land between 40 degrees and 80 degrees north latitude.Footnote ²³ This council subsequently surrendered its rights to a new group headed by Sir Henry Rosewell, which obtained the Charter of 1629. The Charter of 1620 in turn had opened with a reference to the First Charter of Virginia (1606), because the members of the New England Company wished to settle within the region originally assigned to the Virginia Company. That company had been only partially successful in establishing a colony, which explains why one of the stated goals of the new Charter (1620) was to “avoide all Confusion, Questions, or Differences between themselves and those of the first Collonye.”Footnote ²⁴ The theme of regulating colonization in order to prevent conflict runs through these charters.Footnote ²⁵

To appreciate the Charter of 1629, it is necessary not only to examine the various legal traditions involved in its construction, it is also necessary to examine the two previous charters as well, because they stated the general principles on which English overseas expansion was based and reflect the stages of development of English colonial policy. Where the Spanish and the papacy had produced treatises dealing with the legitimacy of expansion, with the rights acquired by discovery and conquest, and how to deal with indigenous populations, the English produced little theoretical material about these issues.Footnote ²⁶ Instead of building on a body of English legal and philosophical principles, the draftsmen of the English charters borrowed from three existing legal traditions, only one of which was English.

Some of the terms of the charter of 1629 are similar to the Capitulations of Santa Fe (1492), the agreement between Ferdinand and Isabella on the one hand and Christopher Columbus on the other, that was the legal basis for his first voyage. Others were drawn from the medieval Catholic legal tradition, specifically from Alexander VI's Inter caetera, which supported Spanish and Portuguese expansion. Finally, the specific instructions dealing with the organization of the Massachusetts Colony were drawn from English municipal corporation law.

The Capitulations of Santa Fe had authorized Columbus to undertake a voyage of discovery, and outlined the benefits that the Spanish monarchs would grant him for his discoveries. Columbus would be the Spanish monarchs’ representative as “admiral on all those islands and mainland” that he discovered or acquired “in the Ocean Seas.” Columbus would also serve as “viceroy and governor general” there. Finally, Columbus would have “one-tenth of all and any merchandise that is bought, exchanged, found, acquired, and obtained within the limits of the admiralty” he administered.Footnote ²⁷

The Capitulations did not make any claim that the Spanish monarchs in any way owned or had a right to seize the as yet undiscovered lands, and do not suggest that Columbus would conquer territory. Although the Capitulations did not mention the discovery of a route to Asia and its markets, given the entire context of Columbus's life and career, it is clear that the Spanish monarchs expected him to do just that.Footnote ²⁸ Any land acquired would be for trading posts or factories in early modern terminology, or to re-supply ships making the long voyage to the East and back. Columbus was not expected to find land suitable for large-scale colonization, and there was no mention of a religious mission. The Capitulations were a straightforward commercial agreement granting Columbus jurisdiction over whatever territory he acquired and held in the name of the Spanish monarchs. This grant of authority clearly referred to jurisdiction over subjects of the Spanish monarchs living in such lands or those indigenous people who submitted to Spanish jurisdiction. As the nature of Columbus's discoveries became clearer, other documents were issued to deal with what was actually found.Footnote ²⁹

Only after Columbus returned from his first voyage did the Spanish monarchs seek to protect their interest in Columbus's discoveries and the route by which he claimed to have reached Asia. The Capitulations had been vague, authorizing exploration in general terms. The letter that Columbus circulated on his return spelled out in some detail what he had found, so the Spanish sent word of the discoveries to Pope Alexander VI who issued three bulls, two headed Inter caetera (May 3 and 4, 1493) and one headed Eximiae Devotionis (May 3, 1493) dealing with the discoveries on the basis of Columbus's report.Footnote ³⁰ These bulls were in the tradition of a number of papal letters issued in the fifteenth century to regulate relations between the Portuguese and the Spanish as they explored the west coast of Africa and the islands of the Atlantic, especially the Canaries.Footnote ³¹

In the first Inter caetera, the pope noted that having ousted the last Muslims from Spain with the fall of Granada, Ferdinand and Isabella turned to the task of discovering “certain lands and islands remote and unknown and not hitherto discovered by others” in order to convert the inhabitants to the Catholic faith. This pious effort led to the discovery of some distant islands and mainlands where there “dwell very many peoples living in peace, and, as reported, going unclothed, and not eating flesh.” Columbus had already established “a fortress” there and left a garrison to serve as a base from which the Spanish will search for other lands.Footnote ³²

Given the pious intentions of the Spanish monarchs, the pope declared that we “give, grant, and assign forever to you and your heirs and successors” any of the said islands found by their envoys and captains, as well as any that may be discovered subsequently. In return, the Spanish were expected to “appoint to the aforesaid countries and islands worthy and God-fearing learned, skilled, and experienced men to instruct the aforesaid inhabitants and residents in the Catholic faith, and to train them in good morals.”Footnote ³³ This was the Patronato, “the right of presentation to all major ecclesiastical benefices,” in effect giving the monarchs control of the institutional structure of the Catholic Church in the Americas.Footnote ³⁴

There were two important restrictions on Spanish expansion activities. In the first place, they could not use the papal authorization to claim jurisdiction over any newly discovered lands that “have been in the actual temporal possession of any Christian owner.” This clause referred to the Christian kingdoms thought to exist in Asia and also to the discovery activities of the Portuguese.Footnote ³⁵ The aim here was to regulate overseas exploratory activities in order to prevent armed conflict among Christian kingdoms.Footnote ³⁶

In the second place, Inter caetera took note of Portuguese exploratory efforts in West Africa and the Atlantic islands that had led to the acquisition of the Azores, Madeira, and Cape Verde islands. They had been granted the same “privileges, favors, liberties” as the Spanish.Footnote ³⁷ Thus, any lands possessed by the Portuguese were off limits to the Spanish.

A second bull, also known as Inter caetera (May 4, 1493), was then issued, repeating the terms of the first Inter caetera and drawing a line from the North Pole to the South Pole “the said line to be distant one hundred leagues towards the west and south from any of the islands commonly known as the Azores and Cape Verde.” Again, there was the restriction that any lands acquired and possessed by any Christian prince, were off limits. Finally, the second Inter caetera added another important element to the original bull. No one was allowed “without your special permit or that of your aforesaid heirs and successors, to go for the purpose of trade or any other reason to the islands or mainlands found and to be found..” In other words, the Spanish would have a monopoly of European Christian access to any lands discovered west of the line of demarcation.Footnote ³⁸

To a great extent, Alexander VI's three letters contained the basic principles that were to govern European overseas expansion for the next two centuries. The charters that the English kings issued regarding the exploration and colonization of North America reflected these papal principles, to the point of quoting Inter caetera verbatim. These papal bulls, drawing on three centuries of canon law theory and papal practice to regulate European overseas expansion, were shaping the early stages of what eventually would be international law.

The papal bulls did not assert that the pope could distribute the lands of “infidels” to Christian rulers or that non-Christians did not legitimately possess their lands. In order to head off possible conflict with the Portuguese and for the missionary efforts to be successful, the papal letters drew the line of demarcation to define clearly two spheres of spiritual responsibility, the Patronato, for which these powers would have monopolies of access. Subsequently, by the Treaty of Tordesillas (June 7, 1494) the two governments modified the terms of the papal bulls by adjusting the line of demarcation from 100 leagues west of the Cape Verde islands to 370 leagues, but the principle remained.Footnote ³⁹ The goal was to regulate Christian access to the newly discovered lands in order to avoid imperial conflicts by granting that each kingdom had a papally authorized monopoly of a route to Asia that, presumably, other European Christian rulers would accept. In return, the Portuguese and Spanish would support Catholic missionary efforts in the areas assigned to each ruler.

The terms of Alexander VI's letters appear to have become well known quickly, because in effect, they were an announcement to all Latin Christians that they risked papal condemnation if they attempted to enter the regions assigned to the Spanish and the Portuguese without permission. The papal claim to regulate voyages of exploration and settlement and to authorize a monopoly of access to such lands was eventually mocked by the Catholic king of France, Francis I (1515–47), who told the imperial ambassador in 1540 that he would first want to see Adam's will before accepting the papacy's claim.Footnote ⁴⁰ Subsequently, Protestant rulers also mocked these papal claims and ignored them.Footnote ⁴¹ English Protestant rulers, however, eventually made similar claims using the papal language. The first English ruler to emulate the Spanish monarchs with regard to overseas expansion was Henry VII (1485–1509), who issued letters patent to John Cabot (c.1450–c.1500)) and his sons in 1498. These letters patent provided a wide-ranging commission similar in tone to that Columbus received in the Capitulations.Footnote ⁴² The document authorized Cabot “to seek out, discover, and finde whatsoeuer isles, countreys, regions or provinces of the heathen and infidels whatsoeuer they be…which before this time bene vnknowen to all Christians.” The Cabots had “licence to set vp our banners and ensignes in euery village, towne, castle, isle, or maine land of them newly found” and to “subdue, occupy and possesse all such towns…which they can subdue, occupy, and possesse, as our vassals.”

The small size of Cabot's ship demonstrated that the voyage was simply one of discovery, not of conquest or colonization. The goal that Cabot sought was, like that of his fellow Genoese explorer, Columbus, a route to Asia, the Northwest Passage that was to be sought for the next three centuries.Footnote ⁴³ The only benefit that the king granted Cabot was a monopoly of English access to whatever lands he located. The letters patent forbade “any other of our subjects” to visit or frequent the lands that the Cabots find “without the licence of the foresayd John and his sonnes, and their deputies.” Those who failed to observe this regulation would have their ships and their contents seized.Footnote ⁴⁴

The letters patent issued to the Cabots did not claim that the lands discovered by the Cabots belonged to the king by some kind of right or that the “heathens and infidels” had no right to possess such lands. What the king granted was a license; that is, permission, to any and every where to search for lands previously “unknownen to all Christians,” meaning that they were not to enter lands already occupied by the Spanish and Portuguese. If the Cabots acquired any lands, by whatever means, they would receive royal protection if they held these lands as vassals of the king and would have a royally protected monopoly of access to such lands. In this, Henry VII was implicitly accepting the basic premise of Inter caetera; namely, that Christians should not fight over access to and possession of the new lands.Footnote ⁴⁵

It was not until the reign of Elizabeth I (1558–1603) that the English government again issued letters patent for overseas exploration and settlement, this time to Sir Humphrey Gilbert in June, 1578.Footnote ⁴⁶ Like the earlier letters patent for the Cabots, the queen authorized him to “discover, finde, search out, and view such remote heathen and barbarous lands, countreys and territories not actually possessed of any Christian prince or people and “to have, hold, occupie and enjoy … with all commodities, jurisdictions and royalties both by sea and land.” The queen granted Gilbert authority to “goe and travell thither, to inhabite or remaine there, to build and fortifie” a settlement. Any person who wished to settle in a place occupied by the Gilberts could not do so “without the special licence” from Gilbert, thus recognizing that the Gilberts would have a monopoly of access to any lands they discovered. Furthermore, any settlement would be possessed “according to the order of the laws of England,” and Gilbert was authorized to prevent anyone “without the special licence” who “shall attempt to inhabite within the sayd countreys” from settling there. This obviously applied to the king's subjects and to the subjects of other Christian rulers as well.Footnote ⁴⁷

The letters patent to Gilbert concluded with a paragraph announcing “to all Christian Kings, princes and states” that if Gilbert and his associates harmed anyone, English or subjects of other peaceful Christians the English monarch would “make such restitution and satisfaction of all such injuries done” that would settle the matter peacefully. If such action did not settle matters, the English monarch would place Sir Humphrey and his heirs “out of our allegiance and protection” and support. In other words, they would be outlaws.Footnote ⁴⁸

The queen's license to Gilbert emphasized that she would protect the explorers and settlers and their descendants in any lands that they might acquire as long as they held the lands in “allegiance” to her and her successors. Failure to adhere to the terms of such allegiance would cause the loss of royal protection, leaving the colonists open to attacks by other Englishmen seeking to occupy the same lands or by Spanish, French, and other Europeans interested in imperial expansion. Ultimately, Gilbert's monopoly, like those granted by Alexander VI to Spain and Portugal, depended on adherence to the laws and policies of the ruler granting the monopoly. In all these cases, the grantor was seeking to regulate expansion so as to avoid conflict. This also meant that Elizabeth was announcing to her contemporaries that Gilbert would not interfere with the colonizing activities of any other Christian ruler.

What the charter issued to Gilbert did not include, was any discussion of a Christian mission to the native population or any interest in bringing them to a “civilized” state of existence. The only mention of religion was in regard to the laws that would be made in the proposed colony. Such laws must “not be against the true Christian faith or religion now professed in the Church of England.”Footnote ⁴⁹

When Gilbert arrived in North America, he found no indigenous population, but at St. John's, Newfoundland he encountered a self-governing community of European fishermen headed by an Englishman already there. Gilbert claimed the land for the queen of England, but then returned to England.Footnote ⁵⁰ Subsequent colonizers along the New England coast were to discover that fishermen had been there before them and had established similar settlements without any charters or other form of legal recognition. Eventually, these settlements would have to find a place within English colonial policy or be eliminated.Footnote ⁵¹

In 1584, the queen issued a patent to Sir Walter Raleigh (c. 1554–1618) that virtually repeated the language of Gilbert's patent. Like the Capitulations of Santa Fe, these charters were designed to encourage English adventurers to engage in overseas voyages in the knowledge that they would receive royal protection for their possession of whatever lands they discovered and occupied as long as they did not engage in conflict with the claims of other Christians. These charters did not, however, profess any religious motivation for the voyages, or any intention to convert and civilize those encountered or to colonize such lands. As was the case with Columbus, the emphasis on religious motives only came after encountering “heathen and barbarous peoples.” As with Columbus, an initial broad and vague license to explore would be followed up by a more detailed statement of royal interest based on the possibilities seen in the report of the voyage.

In spite of the experience of fishermen in North America, the English government showed little interest in the Americas during the sixteenth century. Instead, Englishmen sought to reach the markets of Asia by a Northeast Passage, going by way of the Baltic Sea through Russia, and on into Asia, as Hakluyt's Voyages and Discoveries demonstrates.Footnote ⁵² Furthermore, the conquest and settlement of Ireland showed the promise of more immediate profits.Footnote ⁵³ There were some voyages to the Americas, but these were not chartered operations. The famous Elizabethan seamen, Martin Frobisher, William Hawkins, and Francis Drake engaged in voyages of exploration and piracy, but not colonization projects. There were, however, as Humphrey Gilbert had discovered, some small seasonal communities of fishermen along the eastern coast of North America, but these were not chartered colonies.Footnote ⁵⁴

Not until the early seventeenth century did Englishmen seek to obtain charters for colonizing lands along the shores of North America. These charters, like Inter caetera, were the much delayed second stage of overseas expansion, providing legal protection for any lands suitable for colonization that English adventurers might acquire. Unlike earlier charters, the First Charter of Virginia (1606) and later charters specified the region where the colonizers were to settle. With the First Charter of Virginia, King James I granted to Sir Thomas Gates and his associates “our Licence to make Habitation, Plantation, and to deduce a colony of sundry of our People…Virginia” between 34 degrees and 45 degrees north latitude. This zone of potential colonization stretched from North Carolina to Maine.Footnote ⁵⁵ The Virginia charter also forbade settling on any land “actually possessed by any Christian Prince or People.”Footnote ⁵⁶ The emphasis here was on the term “actually possessed.” The English government obviously did not recognize Alexander VI's line of demarcation, but at the same time, accepted the principle that Christian nations should not seek to enter any lands where other European Christian rulers had already established a physical presence.Footnote ⁵⁷

The Charter of Virginia, like Inter caetera, also stated that the colonists had a responsibility to propagate the “Christian Religion to such People, as yet live in Darkness and miserable Ignorance of the true Knowledge and Worship of God, and may in time bring the Infidels and Savages…to human Civility, and to a settled and quiet Government.”Footnote ⁵⁸

Having set out the general principles guiding the proposed colony, the charter then spelled out in detail what the king would provide the colonists. James I did not grant them any land, only a monopoly of access to a specified region and “they shall have all the Lands, Woods, Soil” within the specified region, and they “shall and may inhabit and remain there; and shall and may also build and fortify within any the same.” Furthermore, no Englishman could settle there without the written permission of the colony's officials.Footnote ⁵⁹ The Charter also outlined the basic governmental structure of the proposed settlements. There would be a “Council established here in England…which shall be called our Council of Virginia; and shall…have the superior Managing and Direction” of the colonies.Footnote ⁶⁰

Two clauses of the charter concerned economic matters, a reminder that settlement in the New World could lead to a wide range of opportunities. For example, there was always the possibility of engaging in trade with the people whom they encountered, a long-standing purpose of voyages of discovery. To facilitate such trade, the colonists were authorized to create their own coinage “for the more Ease of Traffick and Bargaining between and amongst them and the Natives there.” Furthermore, because the colonists might find “Mines of Gold, Silver, and Copper,” a traditional goal of exploratory voyages, the charter stated that the colonists would have to pay the king “the fifth part only of all the same Gold and Silver, and the fifteenth part of the Same Copper.” Those of the king's subjects who sought to import goods into Virginia could do so upon payment of a 2½% duty, whereas others would pay 5%. The colonists were also authorized to defend themselves against those who attempted to settle within the colony “without the especial License” obtained from the colonists.Footnote ⁶¹

If the colonists were successful in acquiring land and creating a working colony, they could then hold the land so acquired from the king “in free and common Soccage.”Footnote ⁶² Furthermore, all the king's subjects who dwelled there “and every of their children” born in the colony “shall HAVE and enjoy all Liberties, Franchises, and Immunities” as if they were born “within this our Realm of England.” The obvious purpose of the Charter of Virginia was to regulate settlement in America to prevent conflict between competing English colonizing projects by the creation of a monopoly of access to a specific region. Presumably, there would not be land open to squatters settling everywhere in a disorganized fashion. The Charter also announced to other Christian rulers that the king would punish any of his subjects who settled in regions effectively occupied by them, and also punish any who did harm to the subjects of rulers at peace with the English.Footnote ⁶³

The first attempt at colonizing Virginia failed, and as constitutional historian William MacDonald pointed out that because the “first charter, in itself [was] essentially experimental, [and] had already proved defective” it was replaced by two others, one in 1609, the next in 1611–12. All these charters and related documents were stages in a process whereby the British government was developing a policy for the creation and administration of colonies. The lawyers and the legal draftsmen had to develop documents that responded to the actual peoples and lands that Englishmen were encountering, and that recognized deficiencies in previous texts. Such documents also had to use language acceptable to and understood by other European Christian governments. In the case of the colonization of Virginia, as MacDonald noted, the later charters made the liberties and privileges granted by the first charter “larger and more specific.”Footnote ⁶⁴ Early charters had stressed the acquisition of wealth by trade with the local population and by the discovery of gold and silver mines, themes reaching back to the fifteenth century Spanish and Portuguese voyages. The experience of the English in North America made it clear that such goals were not likely to be achieved, so the later charters placed more emphasis on the creation of agricultural settlements and guaranteeing fishing rights, but language regarding gold and silver remained part of the charters.

The failure of the Plymouth Company to establish a successful settlement in Maine led Sir Fernando Gorges, a leader of the company, to obtain a new charter that would grant the recipients a monopoly of the Atlantic fishery. The new charter, The Charter of New England (1620), noted that Gorges and his associates had “sustained many Losses in seeking and discovering a Place fitt and convenient to lay the Foundation of a hopeful Plantation,” but in spite of these misfortunes, they had “taken actual Possession of the Continent heretofore mentioned, and had settled” there. They now wanted to develop their plantation “in a more plentifull and effectual Manner” while seeking to “avoide all Confusion, Questions, or Differences between themselves, and those of the said first Collonye.”Footnote ⁶⁵ Having explored the region and taken possession of some land, Gorges and his associates wanted royal confirmation of their monopoly, and protection against those who might want to settle there just as Spanish and Portuguese settlers had.

The aim of the planters was now “to erect and establish ffishery, Trade, and Plantacion within the Territoryes, Precincts, and Limitts of the said second colony” because they had learned that no other Christian ruler had laid claim this region. Here again, the goal was the acquisition of a royally chartered monopoly, this time of the fishing trade, and to preempt possible conflict with the other Virginia colony.Footnote ⁶⁶

It was at this point that the English charter tradition began to include a formal justification for occupying land in North America. The new charter pointed to the experience of Gorges and his company in exploring the land where they had hoped to settle. They had learned that “a wonderful Plague, together with many horrible Slaughers and Murthers, committed amoungst the Sauages” dwelling there had caused “the utter Destrouction, Deuastacion, and Depopulacion of that whole Territorye,” so there was no one to interfere with the English taking possession of the land. The devastation and depopulation were signs that “Almighty God in his great Goodness and Bountie towards Us” had decreed that these lands “deserted as it were by their naturall Inhabitants, should be possessed and enjoyed” by Englishmen that choose to go there.Footnote ⁶⁷

Because God appeared to have paved the way for English settlers, it was clear that the English ought to undertake colonization as “a Work which tendeth to the reducing and Conversion of such Sauages as remaine wandering in Desolacion and Distress, to Civil Societie and Christian Religion, to the Inlargement of our own Dominions, and the Advancement of the Fortunes of such of our good Subjects” as were willing to go there. Given these motivations for establishing a new colony, what else could the king do but issue a charter for the new company, assigning it the land between 40 degrees N and 48 degrees N, and to be named “New-England in America” forever.Footnote ⁶⁸

In order to achieve the spiritual and material goals that the charter specified, the king created “one Body politieque and corporate” established at Plymouth for the purpose of colonization. Clearly the king was not claiming possession of land in America, only stating that in the absence of an indigenous population, there was land open to settlement to anyone who claimed and settled it. What the charter did was to create a corporation to organize an expedition to the land specified and settle there within the designated boundaries. The incorporators were granted “full Power and Authority…as well to purchase, take, hold, receive, enjoy, and to have …forever any Manors, Lands, Tenements…Privileges, Immunities Goods, and Chattles whatsoever, of or from Us, our Heirs, and Successors, and of or from any other Person or Persons whatsoever.” The charter also noted that the new corporation could not acquire land clearly within the boundaries of the first colony in Virginia or already in the hands of other Christian rulers.Footnote ⁶⁹ The properties that the incorporators acquired in the designated region as a result of their activities they would “hold, possess and enjoy” as “in free and common Soccage” and not by knight's service.Footnote ⁷⁰ Clearly the king was not granting land in North America in socage, but rather agreeing to recognize the corporation's acquisition of property and grant them a monopoly of it, protecting legally against English or foreign incomers. The legal protection provided by the status of socage was the reward of successful colonization.

The remainder of the Charter of New England dealt with the details of the governmental structure that the colonists should erect. The colonists were expected to “live together in the Feare and true Worship of Almighty God, Christian Peace, and civil Quietness” and the governing council was granted “full and absolute Power and Authority to correct, punish, pardon, governe, and rule all such the Subjects of Us” that come there. Furthermore, none of the king's subjects could without “the License and Consent of the said Councill first had and obtained in Writing” enter the designated land.Footnote ⁷¹

Lest any other government misunderstand the relation between the king and the colonists, the charter declared “to all Christian Kings, Princes, and States” that if any colonist harmed any subject of such rulers at peace with England, the English king would see that compensation was paid and if it was not, then those involved would be outlawed. Such individuals could now legitimately be sought out and punished by anyone who found them. This section of the Charter was followed by a re-statement of the status of the colonists and their descendants as possessing “all Liberties, and ffranchizes, and Immunities of Free Denezens and naturall Subjects…as if they had been abidinge and born within this our Kingdome of England, or any other our Dominions.”Footnote ⁷²

The charter also reminded the colonists, in terms echoing Inter caetera, that “the principall Effect which we can desire or expect of this Action, is the Conversion and Reduction of the People in those Parts unto the true Worship of God and Christian Religion.” That being the case, Roman Catholics were not “be permitted to pass…into the said Country” unless they had taken “the Oathe of Supremacy” recognizing the king as the Supreme Head of the Church in England.Footnote ⁷³

The colonizing endeavors of Gorges and his associates were not successful; therefore, in 1629, the company's rights and privileges were transferred to a new company, the Massachusetts Bay Company, led by Sir Henry Rosewell. The charter of this company was thus the culmination of the process stretching back to the fifteenth century when the papacy was seeking to regulate Spanish and Portuguese exploring ventures in the Atlantic. The 1629 Charter emphasized the cumulative nature of the process by opening with a re-statement of the charter of 1620 that established a council at Plymouth “for the planting, ruling, ordering, and governing of Newe England in America” between 40 degrees and 48 degrees north latitude. The earlier council now transfered “to Sir Henry Rosewell” and his associates “all that Parte of Newe England in America aforementioned” and all the rights and privileges granted in the earlier charter. Any lands acquired by the company in the designated region would be held of the king “in free and common Soccage.” Furthermore, the colonists could not occupy lands already “actuallie possessed or innhabited by any other Christian Prince or State” or within the region assigned to “that Southerne Colony”; that is, Virginia.Footnote ⁷⁴

Rosewell and his associates now formed “one Body corporate and politique in Fact and Name, by the name of the Governor and Company of the Mattachusetts Bay.” The new corporation was authorized to do any number of things, and also had the right “to have, take, possesse, acquire, and purchase any Landes, Tenements, or Hereditaments, or any Goodes or Chattells…[and] to lease, graunte, demise, bargaine, sell, and dispose of, as other our liege People of this our Realme of England, or any other corporacon or Body politique of the same may lawfully do.”Footnote ⁷⁵ The Charter then set out the form of government that the members of the Company should establish if the colonists were successful in founding a colony. The colonists, their children, and their descendants “shall have and enjoy all liberties and Immunities of free and naturall Subiects within any of the Domynions of Vs…as yf they and everie of them were borne within the Realme of England.” The new charter also authorized the colonists “to make…wholesome and reasonable Orders, Lawes…not contrairie to the Lawes of this our Realme of England.”Footnote ⁷⁶

At this point the Charter mentioned briefly the indigenous population in the area that the Massachusetts Bay Company colonists were to settle. The settlers were expected to “be soe religiously, peaceablie, and civilly governed, as their good Life and orderlie Conversacon” will lead the indigenous population to accept Christianity “which [is] in our Royall Intencion” and “the principall Ende of this Plantacion.”Footnote ⁷⁷ Here again, the Charter was echoing a theme found in Inter caetera, but one that was to be implemented in a different manner than that which the pope had anticipated. There were no Protestant religious orders that would send celibates to preach to the nonbelievers and run the risk of martyrdom. The Indians would not be subdued and placed in organized communities under the direction of missionaries. Instead, they would be led to Christianity by the example of the Christians who were living with them.Footnote ⁷⁸

Having dealt with the governmental structure of the proposed colony, the Charter then dealt with the treatment of those who might want to join the colony. Any of the king's subjects who came to the colony would be subject to the laws of the colony as long as the laws were not “repugnant” to English law.Footnote ⁷⁹ Furthermore, the colonists were authorized to defend themselves from any who would harm them. In addition, “all Christian Kinges, Princes, and States” were advised that if any colonists harmed either other Englishmen or the subjects of other friendly Christian rulers, the king would compel restitution.Footnote ⁸⁰ Failure of restitution efforts would lead to the outlawing of the miscreants.

The final section of the 1629 charter recognized the existence of pre-existing fishing communities and the right of other Englishmen to fish along the coast and erect those buildings necessary for the support of the fishery, thus bringing those activities under royal jurisdiction and regulating relations between them and the colonists.Footnote ⁸¹ This was a reminder that successful settlement efforts would be recognized and protected even if not originally chartered.