Colonial Charters and Codes

The early Colonial Charters, compacts, patents, agreements, and codes were generally not very sympathetic to civil liberties, because they would be understood today. Neither the Virginia Company Charter of 1606 nor the Massachusetts Bay Charter of 1629 contained anything that would have protected civil liberties. The 1609 Charter of Virginia empowered the Virginia Company to ‘‘ordain, and establish all Manner of Orders, Laws, Directions, Instructions, Forms and Ceremonies of Government and Magistracy, fit and necessary for and concerning the Government of the said Colony and Plantation; And the same, at all Times hereafter, to abrogate, revoke, or change, not only within the Precincts of the said Colony, but also upon the Seas, in going and coming to and from the said Colony, as they in their good Discretion, shall think to be fittest for the Good of the Adventurers and inhabitants there.’’ Another section of the Charter required that laws Virginia’s ‘‘Statutes, Ordinances and Proceedings as near as conveniently may be, be agreeable to the Laws, Statutes, Government, and Policy of this our Realm of England.’’ But the two provisions and the rest of the charter allowed for arbitrary and harsh rule that denied basic liberties to most settlers in the colony. This second Virginia charter made it clear that religious dissent would not be tolerated. The charter declared that the Company would not allow settlers who accepted ‘‘the Superstitions of the Church of Rome,’’ and further provided that on one could enter the colony who had not ‘‘taken the Oath of Supremacy.’’

The Maryland charter of 1632 merely proclaimed that the law of England would be the basis of the laws of the colonies. The charter allowed the proprietor to impose martial law to suppress rebellions or sedition. While founded as a haven for English Catholics, the Maryland charter authorized religious worship according to the ‘‘Eclesiastical laws of our Kingdom of England.’’ Thus, the Maryland settlers did not get any new rights of expression or protection from the sometimes arbitrary criminal justice of England and were perhaps subject to even harsher and more arbitrary law. Even the Pennsylvania charter of 1781 contained nothing at all that connected to civil liberties. The settlers of New Hampshire, for example, agreed in 1639 to the following declaration when creating a government: ‘‘We his loyal Subjects Brethern of the Church in Exeter situate and lying upon the River Pascataqua with other Inhabitants there, considering with ourselves the holy Will of God and o’er own Necessity that we should not live without wholesome Lawes and Civil Government among us of which we are altogether destitute; in the name of Christ and in the sight of God combine ourselves together to erect and set up among us such Government as shall be to our best discerning agreeable to the Will of God professing ourselves Subjects to our Sovereign Lord King Charles according to the Libertyes of our English Colony of Massachusetts, and binding of ourselves solemnly by the Grace and Help of Christ and in His Name and fear to submit ourselves to such Godly and Christian Lawes as are established in the realm of England to our best Knowledge, and to all other such Lawes which shall upon good grounds be made and enacted among us according to God that we may live quietly and peaceably together in all godliness and honesty.’’ Similarly, when the colonies in Massachusetts and Connecticut joined together in 1639 under ‘‘The Articles of Confederation of the United Colonies of New England,’’ they provided no protection for due process, freedom of expression, or religious liberty. The document proclaimed that one of the purposes of settlement was to ‘‘advance the Kingdom of our Lord Jesus Christ and to enjoy the liberties of the Gospel in purity with peace,’’ but this did not imply that all people—even all Christians—would have religious freedom in these colonies.

By the end of the Seventeenth Century the newer colonies began with a greater sense of civil liberties. The Carolina charter of 1663 noted that ‘‘it may happen that some of the people and inhabitants of the said province, cannot in their private opinions, conform to the publick exercise of religion, according to the liturgy, form and ceremonies of the church of England, or take and subscribe the oaths and articles, made and established in that behalf.’’ Taking this into consideration, the charter allowed the proprietors to give ‘‘indulgencies and dispensations’’ to such persons. This was a major step toward religious toleration. This move toward greater protections for liberty in the charters can be seen most clearly in Rhode Island. The ‘‘Patent for Providence Plantations,’’ granted by Parliament in 1643, contained no protections of civil liberties or religious freedom, even though the founder of the colony, Roger Williams, established Rhode Island as a haven for people of all faiths. However, the Rhode Island charter of 1663 was even more expansive in its support for religious liberty, providing that ‘‘noe person within the sayd colonye, at any tyme hereafter, shall bee any wise molested, punished, disquieted, or called in question, for any differences in opinione in matters of religion, and doe not actually disturb the civill peace of our sayd colony; but that all and everye person and persons may, from tyme to tyme, and at all tymes hereafter, freelye and fullye have and enjoye his and theire owne judgments and consciences, in matters of religious concernments, throughout the tract of lance hereafter mentioned; they behaving themselves peaceablie and quietlie, and not useing this libertie to lycentiousnesse and profanenesse, nor to the civill injurye or outward disturbeance of others; any lawe, statute, or clause, therein contayned, or to bee contayned, usage or custome of this realme, to the contrary hereof, in any wise, notwithstanding.’’ The 1691 Massachusetts allowed ‘‘liberty of Conscience allowed in the Worshipp of God to all Christians (Except Papists),’’ which was an improvement over the earlier regime in Massachusetts, which had been hostile to all non-Puritans, but was hardly civil libertarian.

This notion appeared more emphatically in the two charters granted to settlers in 1701 by William Penn: the Delaware Charter of 1701 and the Pennsylvania Charter of 1701. These are among the earliest formal documents in American history to use the term ‘‘civil liberties’’ as it is understood today. These charters did not come from the King or Parliament. Instead they were granted to the settlers of both places by William Penn, who was the proprietor of Pennsylvania, which until 1701 included present-day Delaware. Penn’s charters noted that: ‘‘no People can be truly happy, though under the greatest Enjoyment of Civil Liberties, if abridged of the Freedom of their Consciences, as to their Religious Profession and Worship.’’ Thus, the charter provided that ‘‘no Person or Persons, inhabiting In this Province or Territories, who shall confess and acknowledge One almighty God, the Creator, Upholder and Ruler of the World; and professes him or themselves obliged to live quietly under the Civil Government, shall be in any Case molested or prejudiced, in his or their Person or Estate, because of his or their conscientious Persuasion or Practice, nor be compelled to frequent or maintain any religious Worship, Place or Ministry, contrary to his or their Mind, or to do or suffer any other Act or Thing, contrary to their religious Persuasion.’’ This was an enormously expansive grant of religious toleration, although the charter did not grant full religious freedom to all people. The next clause provided that ‘‘all Persons who also profess to believe in Jesus Christ, the Saviour of the World, shall be capable (notwithstanding their other Persuasions and Practices in Point of Conscience and Religion) to serve this Government in any Capacity, both legislatively and executively.’’ This provision allowed all Christians to hold office, which made Pennsylvania and Delaware far more progressive than Britain, even if it was protective of liberty by modern standards.

In a subsequent part of the charter, Penn provided that ‘‘the First Article of this Charter relating to Liberty of Conscience, and every Part and Clause therein, according to the true Intent and Meaning thereof, shall be kept and remain, without any Alteration, inviolably for ever.’’

In Criminal Law the Pennsylvania and Delaware charter contained a major recognition of the rights of the accused that was unknown in England. Penn provided that ‘‘all Criminals shall have the same Privileges of Witnesses and Council as their Prosecutors.’’ This simple statement would later lead to the Confrontation Clause and assistance of counsel clause in the Sixth Amendment. The charter also abolished the English practice of denying inheritance to the heirs of anyone who committed suicide. This provision reflected Penn’s generally humane view of law while it also protected property.

 The last charter of the colonial period, granted to Georgia, in 1732 adopted the general support for Protestant religious freedom and anti-Catholicism. The charter provided that: And for the greater ease and encouragement of our loving subjects and such others as shall come to inhabit in our said colony, we do by these presents, for us, our heirs and successors, grant, establish and ordain, that forever hereafter, there shall be a liberty of conscience allowed in the worship of God, to all persons inhabiting, or which shall inhabit or be resident within our said provinces and that all such persons, except papists, shall have a free exercise of their religion, so they be contented with the quiet and peaceable enjoyment of the same, not giving offence or scandal to the government.

In general, the Colonial Charters did little to expand existing English liberty, except in the area of religious toleration, where a few colonies, like Rhode Island, Pennsylvania, and Delaware, set a new standard for religious liberty. Granted by the King or Parliament, the charters reflected the need of the mother country to govern the colonies. There was little idealism in these charters and thus few innovations in civil liberties. The great exception was the two charters granted by William Penn.

PAUL FINKELMAN

References and Further Reading

• Thorpe, Francis N. The Federal and State Constitutions Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America. Washington, DC: Government Printing Office, 1909.