PREFACE: The Origins of English Colonial Governance

Jack P. Greene

“In every thing except their foreign trade, ”observed Adam Smith in 1776, dilating upon the causes of the rapid development of new colonial societies in the Wealth of Nations, “the liberty of the English colonists is complete. It is in every respect equal to that of their fellow-citizens at home, and is secured in the same manner, by an assembly of the representatives of the people. ”“The government of the English colonies, ”he observed, “is perhaps the only one which, since the world began, could give perfect security to the inhabitants of so very distant a province. ” In these passages, Smith called attention to the most prominent feature of early modern English colonial governance: the transplantation of parliamentary institutions to Ireland and America. Wherever English settlers went in large numbers, English political and legal institutions went with them. By the time Smith wrote, and by the time thirteen of Britain's American colonies seceded from the British Empire in 1783, this practice was so fundamental a feature of British overseas colonization that it was virtually unthinkable that any polity that included a substantial number of property-owning British settlers could operate without British representative institutions. Over the nineteenth century, settler colonies in Canada, Australia, New Zealand, and South Africa routinely established such institutions, and in the twentieth century, even non-settler societies with small cadres of British political and military officials presiding over large indigenous populations developed them, in what is surely one of the most enduring legacies of British overseas colonization. How, why, and by whom the foundations of this legacy were laid in colonial British America has long been a subject of historical interest, but no modern work has thrown more light on this subject than this original and penetrating study by Dr.（Thomas）Yunlong Man.

Smith's observations might be taken to suggest that the transfer of parliamentary institutions to the colonies was part of some master plan worked out on the eve of colonization with the objective of replicating the English polity, with its division of authority between a Crown and a Parliament of upper and lower houses. But this suggestion bears little resemblance to what actually happened. As William Burke noted in 1757 in his under-appreciated two-volume survey of the first two and a half centuries of European occupation of the Americas, “nothing of an enlarged and legislative spirit appears in the planning of our colonies. ”Rather, he observed candidly, the“settlement of our colonies was never pursued upon any regular plan; but they were formed, grew, and flourished, as accidents, the nature of the climate, or the dispositions of private men happened to operate. ”

Burke's remarks accurately describe the ad hoc nature of the process by which the English planted colonies in America during the first three-quarters of the seventeenth century, and England's experience was by no means extraordinary. At the beginning of the era of early modern colonization, none of the emerging nation-states of Europe had either the coercive resources necessary to establish its hegemony over portions of the New World or the financial wherewithal to mobilize such resources. As a result, during the early stages of colonization, any nation-state contemplating overseas ventures farmed out that task, either to private groups organized into chartered trading companies or to influential individuals. In return for authorization from the Crown and in the expectation of realizing extensive economic and social advantages, these“adventurers”agreed to assume the heavy financial burdens of founding, defending, and succoring beachheads of European occupation in America. In effect, European rulers gave these private agents licenses with wide discretion to operate in domains over which the state's claims were highly tenuous and over whose indigenous inhabitants it exercised no effective control, much less authority. If the gamble was successful, European rulers secured at least minimal jurisdiction over American territories and peoples at a minimal cost to royal treasuries.

Some of these early private agents of European imperialism, especially the trading companies operating under the aegis of the Portuguese or the Dutch, enjoyed considerable success in establishing trading footholds to tap some of the economic potential of the New World. However, unless they encountered wealthy native empires, rich mineral deposits, or vast pools of native labor—things that happened on a large scale only in Mexico and Peru—few private adventurers had the resources to sustain the high costs of settling, administering, and developing a colony for more than a short period. Most of them were quickly forced to seek cooperation and contributions from settlers, traders, and other individual participants in the colonizing process.

Their efforts to enlist such cooperation acknowledged the fact that the actual process of establishing effective centers of European power in America was often less the result of the activities of colonial organizers or licensees than of the many groups and individuals who took actual possession of land, built estates and businesses, turned what had previously been wholly aboriginal landscapes into ones that were at least partly European, constructed and presided over a viable system of economic organization, created towns or other political units, and subjugated, reduced to profitable labor, killed off, or expelled the original inhabitants. Making up for their scarcity of economic resources, thousands of Europeans, by dint of their industry and initiative, created social spaces for themselves and their families in America and thereby created for themselves status, capital, and power.

Throughout the new European Americas during the early modern era, independent individual participants in the colonizing process were thus engaged in a deep and widespread process of individual and corporate self-empowerment. In contemporary Europe only a small fraction of the male population ever managed to rise out of a state of socioeconomic dependency to achieve the civic competence, the full right to have a voice in political decisions, that was the preserve of independent property holders. By contrast, as a consequence of the easy availability of land or other resources, a very large proportion of white adult male colonists were able to build estates and achieve individual independence.

This development produced strong demands on the part of the large, empowered settler populations for the extension to the colonies of the same rights to security or property and civic participation that appertained to the empowered, high-status, and independent property holders in the polities whence they came. In their view, colonial governance, no less than metropolitan governance, should guarantee that men of their standing would not be governed without consultation or in ways that were patently against their interests. Along with the vast distance of the colonies from Europe, these circumstances powerfully drove those who were nominally in charge of the colonies toward the establishment and toleration of political structures that involved active consultation with, if not the formal consent of, local settlers. Consultation meant that local populations would more willingly both acknowledge the legitimacy of the authority of private agencies of colonization and contribute to local costs. The earliest stages of colonization thus led to the emergence in new colonial peripheries of many new and relatively centers of European power that were effectively under local control.

These centers invariably were reflections of the European worlds from which the settlers came. Intending to create offshoots of the Old World in the New, the numerous emigrants to the colonies insisted on taking their laws and institutions with them and making them the primary foundations for the new societies they sought to establish. For these societies, these laws and institutions functioned as“a concomitant of emigration. ”They were not, as one scholar has noted, “imposed upon settlers but claimed by them. ” They served as a vivid and symbolically powerful badge of the emigrants'deepest aspirations to retain in their new places of abode their identities as members of the European societies to which they were attached, identities that, in their eyes, both established their superiority over and sharply distinguished them from the seemingly rude and uncivilized people they were seeking to dispossess.

The English settlements established in North America, the West Indies, and the Atlantic islands of Bermuda and the Bahamas provide case studies of the way this process worked. Among the main components of the emerging identity of English people, the Protestantism of early modern England and the slowly expanding commercial and strategic might of the eighteenth-century English nation were both important. Far more significant, however, was the system of law and liberty that, according to contemporary English and many foreign observers, distinguished the English from all other peoples on the face of the globe. The proud boast of the English was that, through a series of conquests and upheavals, they had been able, they alone, in marked contrast to most other political societies in Europe, to retain their identity as a free people, securing their liberty through their dedication to what later analysts would call the rule of law.

A long-developing tradition of jurisprudential political discourse supported this claim. Emphasizing the role of law as a restraint upon the power of the Crown, this tradition was rooted in such older writings as Sir John Fortescue, De Laudibus Legum Angliae, written during the fifteenth-century but not published until 1616, and elaborated in a series of important works by several of the most prominent judges and legal thinkers of the early seventeenth-century, including Sir Edward Coke, Sir John Davies, and Nathaniel Bacon. Writing in an age when, except for the Netherlands, every major continental state was slipping into absolutism, and England's first two Stuart kings, intent upon extending the prerogatives of the Crown and perhaps even doing away with England's Parliament, these early seventeenth-century legal writers were anxious to erect legal and constitutional restraints that would ensure security of life, liberty, and property against such extensions of royal power.

This emerging jurisprudential tradition rested upon a distinction introduced and elaborated by Fortescue between two fundamentally different kinds of monarchy: regal and political. Whereas in a regal monarchy like France, he wrote，“What pleased the prince”had“the force of law, ”in a political monarchy like England, “the regal power”was“restrained by political law. ”Bound by their coronation oaths to the observance of English laws, English kings could neither“change laws at their pleasure”nor“make new ones”“without the assent of the subjects. ”The happy result of this system, according to Fortescue, was that English people, in contrast to their neighbors, were governed by laws to which they had consented, and, as Coke and other writers pointed out, this was as true for the common law, to which the people assented through long usage and custom, as it was for the statute law passed by the Parliaments to which they sent representatives.

With a wide variety of other contemporary political writers, the exponents of the English jurisprudential tradition agreed that the happy capacity of English people to preserve their liberty rested largely upon two institutions for determining and making law: juries and Parliament. By guaranteeing that no legal case would be determined“but by the Verdict of his Peers,（or Equals）his Neighbours, and of his own Condition, ”wrote the Whig political publicist Henry Care, the first, juries, gave every person“a Share in the executive Part of the Law. ”By giving each independent person, through“his chosen Representatives, ”a share“in the Legislative（or Lawmaking）Power, ”the second, Parliament, insured that no law should be passed without the consent of the nation's property holders. These“two grand Pillars of English Liberty, ”declared Care（paraphrasing Coke），provided English people with“a greater inheritance”than they had ever received from their immediate“Progenitors. ”For Englishmen, liberty was thus, not just a condition enforced by law, but the very essence of their emerging national identity. For English people migrating overseas to establish new communities of settlement, the capacity to enjoy-to possess-the English systems of law and liberty was thus crucial to their ability to maintain their identity as English people and to continue to think of themselves and to be thought of as English. For that reason, as well as because they regarded English legal and constitutional arrangements as the very best way to preserve the properties they hoped to acquire in their new homes, it is scarcely surprising that, in establishing local enclaves of power during the first few years of colonization, English settlers all over America made every effort to construct them on English legal foundations. As the legal historian George Dargo has observed,“the attempt to establish English law and the‘rights and liberties of Englishmen' was constant from the first settlement to the [American] Revolution”and beyond.

Nevertheless, as Man shows in this careful study of the first half century of development of provincial political institutions in England's five most successful colonies, challenging conventional understandings that the form of English colonial governance was the product of metropolitan design, English authorities did not anticipate the development of such demands when trying to work out a mode of governance for the colonies. “During the first half of the seventeenth century, the formative years of the colonial polities, ”Man finds, “English authorities never devised, or even conceived of, ”an arrangement by which colonial governance would be modeled on“the national government of England. ”Instead, they remained committed to a conciliar form of colonial governance of the kind they had devised for Virginia during its early years. This form consisted of an appointed governor and councilors and included no formal devices for consulting the broader population, and they continued for several decades to think of this conciliar form as the norm for English colonial governance.

As Man's study shows, however, several developments during the early stages of the colonizing process encouraged the development of a representative component in the emerging colonial constitutions. To entice settlers, colonial organizers early found that they not only had to offer them property in land but also to guarantee them the property in rights by which English people had traditionally secured their real and material possessions. Thus in 1619 the Virginia Company of London found it necessary to establish a polity that included a representative assembly through which the settlers could, in the time-honored fashion of the English, make—and formally consent to—the laws under which they would live. Directed by company leaders“to imitate and follow the policy of the form of government, laws, customs, and manner of trial; and other administration of justice, used in the realm of England, ”the new assembly, the first such body in England's still small American world, immediately claimed the right to consent to all taxes levied on the inhabitants of Virginia.

The legal instruments of English colonization—letters patent, charters, proclamations—encouraged this attempt in three ways. First, they often specified that the settlers and their progeny should be treated as“natural born subjects of England”and thereby strongly suggested that there would be no legal distinctions between English people who lived in the home island and those who resided in the colonies. Second, they required that colonies operate under no laws that were repugnant to“Laws, Statutes, Customs, and Rights of our Kingdom of England”and thereby powerfully implied that the laws of England were to provide the model, and the standard, for all colonial laws. Third, beginning with the charter to Maryland in 1632, they also stipulated that colonies should use and enjoy“all Privileges, Franchises and Liberties of this our Kingdom of England, freely, quietly, and peacefully to have and possess……in the same manner as our Leige-Men born, or to be born within our said Kingdom of England, without Impediment, Molestation, Vexation, Impeachment, or Grievance, ”and that no laws should be passed without the consent of the freemen of the colony.

In no case more than twenty years after the founding of a colony, and often much earlier, these conditions and developments encouraged the establishment of representative institutions. Between roughly 1620 and 1660, every American colony with a substantial body of settlers adopted some form of elected assembly to pass laws for the polities they were creating: Virginia and Bermuda in the 1620s, Massachusetts Bay, Maryland, Connecticut, Plymouth, New Haven, and Barbados in the 1630s, St. Kitts, Antigua, and Rhode Island in the 1640s, and Montserrat and Nevis in the 1650s. By 1660, all thirteen settled colonies in the Americas had functioning representative assemblies. From New England to Barbados, colonial English America proved to be an extraordinarily fertile ground for Parliamentary governance.

Even in situations in which company officials or proprietors took the initiative in establishing these early law-making bodies, as was the case with Virginia, Bermuda, and Maryland, the representative bodies never acted as the“passive servants and petitioners of the prerogative, ”as had been the case with the medieval House of Commons. On the contrary, modern historians have been impressed by their“effectiveness and spirit of assertiveness. ”“Usually from their very first meetings, ”Michael Kammen has noted, they acted as the aggressive spokesmen for the proliferating settlements within the colonies. Claiming their constituents' rights to the traditional English principles of consensual governance, they early insisted that no laws or taxes could go into effect without their assent, demanded the initiative in legislation, turned themselves into high courts of appeal and original jurisdiction in the manner of the medieval House of Commons, and rarely shrank from controversy with“local executives, proprietors, or the Crown. ”

To be sure, it took about twenty years for these bodies“to materialize, stabilize, and take permanent form in each colony. ”During the early years, they usually did not sit as a separate body but met together with the governor's council or even with the governor himself to hear cases and pass laws. But they early set course toward achieving their independence from the executive, and by the 1640s the larger colonies, each of them on its own initiative, had all moved toward a bicameral legislature, with the lower house sitting separately from the governor and council: Virginia in 1643, Massachusetts Bay in 1644, Maryland in 1650, and Barbados in 1652. Local exigencies, not emulation, drove this development. In every case, the specific shape of a provincial polity was the product of what Man in his most important finding calls an“indigenous development. ”Some popular provincial governors, such as Sir William Berkeley in Virginia and Philip Bell in Barbados, fostered these developments, but in doing so they were invariably merely consolidating the political frameworks earlier worked out by emerging local leaders and acknowledging that the capacity to govern, in Man's formulation，“compelled [Crown, company, or proprietary] recognition of the indigenous structures of colonial government that had emerged out of colonial conditions. ”For its part, the Crown remained suspicious of representative government, not officially acknowledging the permanence of the assembly in Virginia until 1639, nearly fifteen years after it had assumed direct governmental responsibility for that colony.

By the end of the second quarter of the seventeenth century, the tradition of consensual governance was“firmly rooted”in colonial English America. Moreover, as Man shows in rich detail, once their governments had acquired a bicameral form, provincial magnates had no difficulty in noting“the remarkable resemblance”between colonial polities and the traditional form of metropolitan English governance, and they began, as did the Barbadian government in 1651, to defend the polities they had created on the grounds that they represented“the nearest model of conformity to that under which our predecessors of the English nation have lived and flourished for above a thousand years. ”English officials were also impressed by the structural similarities between the colonial polities and the metropolitan government. At the same time, the enunciation and proliferation in England of the classical theory of mixed government during and after the English Civil War, and its rapid installation as the official interpretation of the English constitution, provided additional justification for the application of that theory to the“indigenous colonial tri-partite government of governor, council, and assembly. ”The Stuart monarchy both acknowledged the colonial roots of and provided“official sanction”for this“conceptual transformation”in 1661, when it“introduced just such a government in Jamaica, ”recently captured from the Spanish and only the second English colony to come under royal control, instructing its new governor“to proceed‘according to such good, just and reasonable customs and institutions as are exercised and settled in our colonies and plantations. '”

Man's study concludes with the establishment of this tri-partite form of governance in Jamaica. As students of later eras have shown, this action with regard to Jamaica did not completely settle the issue of the structure of English colonial governance. Although most of the new proprietary colonies created during the Restoration—in the Carolinas, the Jerseys, and Pennsylvania—and the new royal colony of New Hampshire, separated from Massachusetts in 1679, quickly moved to institute the sort of tri-partite polities that had developed in the older colonies, the Duke of York, the future James II and the proprietor of the colony of New York, captured from the Dutch in the mid-1660s, resisted the creation of an assembly there until 1683, and immediately reversed this concession once he became king. Moreover, James II's attempt to consolidate the New England colonies into a single polity, the Dominion of New England, without representative institutions, deeply threatened the long-established tradition of representative government in those colonies.

Such actions were part of an effort by English officials during the Restoration to impose metropolitan authority upon the local centers of power that had emerged in America. Throughout the decades from 1660 to 1690, the metropolitan government undertook a variety of measures intended to reduce the colonies to what it called“an absolute obedience to the King's authority. ” These included the subordination of the economies of the colonies to that of the metropolis through the navigation acts, passed between 1651 and 1696; bringing as many as possible of the still mostly private colonies under the direct control of the Crown, and curtailing the powers of colonial political institutions. As a theoretical support for these efforts, metropolitan officials in the late 1670s enunciated the new doctrine that the extension of representative government to the colonies was an act of royal grace.

Everywhere in the colonies, these metropolitan intrusions into colonial affairs encountered stiff resistance. In response, provincial assemblies expressed the determination of the property holders they represented to secure both their estates and their claims to an English identity by obtaining metropolitan recognition that, as English people or the descendants of English people, they were entitled to enjoy all the rights and legal protections of English people in the home island. This determination stimulated an extensive constitutional discussion intended to identify explicit legal defenses that would put colonial claims to English rights and legal protections on a solid foundation and thereby protect the colonies from such wholesale intrusions of metropolitan power.

Although the legal status of the assemblies remained a subject of dispute down to and after the American Revolution, the Glorious Revolution effectively ended any efforts to do away with representative government in the colonies. By the first decade of the eighteenth century, representative assemblies had become a fixed feature of English colonial governance. Some of the earliest colonies lost their separate status over the course of the seventeenth century, Plymouth amalgamating with Massachusetts and New Haven with Connecticut, and East Jersey and West Jersey joining to form the single colony of New Jersey. Every one of the eighteen settled colonies still in existence in 1700 had its own elected legislature. Thereafter, each new British colony acquired an assembly as soon as it had sufficient settlers to support one, including the Bahamas in 1729, Georgia in 1755, and Nova Scotia in 1758. In 1749, the Boston essayist and historian Dr. William Douglass could credibly refer to those few English“Settlements with a Governor only……such [as] ……Newfoundland, Nova Scotia, Hudson's Bay, and Georgia, ”as“not [yet fully] colonized. ”Because they had no assemblies, these plantations, according to Douglass, lacked the“Essence of a British Constitution. ”