English Settlement and Local Governance

“Because post-Revolutionary American government resembled the practices of the corporation colonies, proprietary governments often have been neglected. Yet, the proprietary form represented an equally plausible approach to delegating governance authority. Englishmen interested in the settlements viewed the invention of the proprietary form as an improvement over the corporation colony; proprietaries achieved real settlement success. Nova Scotia (1621), Avalon (1623), Maryland (1632), and Maine (1639), as well as Carolina (1663), New York and New Jersey (1664), Pennsylvania (1681), and East Jersey (1682), all followed the proprietary form. The coexistence of settlements with authority delegated through corporate governance practices and those with authority delegated to individual feudal proprietors indicates the absence of preconceived notions about the appropriate manner of government for colonies.

Although we tend to think of the charter as emblematic of democratic constitutionalism, the term charter first appeared in the early proprietary grants. The proprietary form involved governing practices under which an inheritable proprietorship was given by the Crown to a nobleman, a cohort of titled lords served as councilors, and a dependent assembly assented to legislation. The proprietor acquired social status as the highest lord and the economic privilege of collecting quitrents (in essence, rents or taxes on land). His political authority was similar to the English palatinates of Durham and Chester; the social aspiration came from idealized English manorial society.

The impetus for proprietary charters seems to have arisen both from frustration with the corporation and the feudalistic aspirations of a few noblemen. The oft-forgotten Sir Ferdinando Gorges played an important role. Since 1607, Gorges had been involved in the failed colonial ventures of the Plymouth Company. In 1620, he abandoned the corporation approach and had the Company restructured as the “Council . . . for the planting, ruling, ordering, and governing of New-England” (the Council for New England). The Council was in form a board of proprietors, made up of noblemen and gentlemen. It held constitutionally limited lawmaking authority and granted land to Gorges, Council members, and friends. Some grants were never used and reverted; others did not prove particularly successful.

Although the Council’s grants did not prosper, others adopted the idea of proprietary settlements. In 1621, a Scottish nobleman, Sir William Alexander, obtained a charter from James I and the Scottish Privy Council naming him hereditary Lieutenant General over Nova Scotia (New Scotland). The charter, the first so described, gave Alexander extensive powers so long as the laws were “as consistent as possible” with those of Scotland. Alexander’s was a feudal vision: he established a Scottish-style feudal order, planned to raise money by creating hereditary Knights-Baronet, and obtained a coat of arms.

By contemporary standards, Nova Scotia was successful, surviving until the early 1630s when the settlement was evacuated pursuant to a French agreement. Other less successful settlements have drawn less attention.

On Newfoundland and Nova Scotia, older scholarship should be consulted:

D. W. Prowse, History of Newfoundland from the English, Colonial and Foreign Records (2d ed., London, 1896); St John Chadwick, Newfoundland: Island into Province (Cambridge, 1967); Thomas H. McGrail, Sir William Alexander, First Earl of Stirling: A Biographical Study (London, 1940), chapters 5 and 6 on Nova Scotia; George Pratt Insh, Scottish Colonial Schemes, 1620–1686 (Glasgow, 1922), ch. 2; and George Bourinot, Builders of Nova Scotia; A Historical Review (Toronto, 1900; includes the charter).”

Mary Sarah Bilder. “English Settlement and Local Governance.” The Cambridge History of Law in America Volume 1: Early America (1580–1815), Cambridge University Press (2008): 63-103. https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1941&context=lsfp