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CHAPTER I

GENERAL CHARACTERISTICS OF THE LATER PROPRIETARY PROVINCES

Our review of the provinces which were founded by trading companies at the beginning of English colonization, revealed the fact that they originated in a joint-stock system. That system in the colonies themselves gave rise, for a time and in varying degrees, to joint management both of land and trade. It was in that way that the incorporators or adventurers sought to overcome the great difficulties of settling a new continent and to insure, so far as it was possible, a return to themselves. Joint management of land and trade, so far as it existed and was characteristic of the provinces as such, was the reflection of the joint-stock system under which they were created. Afore than that cannot be safely affirmed respecting it. It developed among a people whose ancestors for centuries had lived under a system of private property, though they were acquainted with various survivals of a time when a considerable part of the soil of England was subject to joint cultivation or lay waste and unimproved. Though under the stress of a new migration they resorted to common agriculture and trade, this was but a temporary device. They remained true to their instincts as individualists. That the device was temporary has already been shown by the history of its abandonment in Virginia and also in New England, except as a phase of agrarian policy in towns whose settlement was in a way a reproduction of the original form of colonization by groups. Trade, even in New England, passed wholly into private hands. The limits of the phenomenon will be further defined by a review of the methods under which land and trade were managed in the later proprietary provinces. It

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will be seen that they began at the point which Virginia had reached at the close of her proprietary period.

British colonization on the American continent was successfully begun by corporations, but it was not continued by them. Only four corporations resident in England were founded for this purpose, and these, with one exception,—the Georgia trustees,—came into existence prior to 1630. That this indicates a preference of the government for the proprietor or proprietary board over the corporation resident in England, as an agent for colonizing purposes, it would be rash to affirm. In that age of dawning industrialism it was easier to found a proprietorship than to establish a corporation. The initiative of a single individual, be he courtier or idealist in government and religion, would suffice for the former, while the members of a corporation, with the capital they contributed, could be brought together only as the result of a prolonged effort. Oftener than otherwise the proprietary grant was an expression of royal favor which implied nothing except reward for political or personal services rendered by the patentee. On the American continent six more or less permanent proprietorships were established directly under grants from the king—Nova Scotia, Maryland, Maine, New York, Carolina, and Pennsylvania. Of these all that proved of lasting importance, except Maryland, were founded during the period of the Restoration. Many sub-fiefs—chief among which was New Jersey—were granted by the corporations and the proprietors, but these had a brief and always a very imperfect existence. But in the multiplication of grants under this form, we discern no permanent tendency of the proprietorship to supplant the corporation as an agency in colonization.

In the corporate colonies, and indeed in the provinces which were founded by corporations, it is difficult to see any vestiges of the fief. They were dependencies of the modern industrial and political type. The obligations under which their grantees stood to the king were not distinctively personal, territorial, or military, but political in the broad sense of the term. The relations, moreover, between the grantees and their tenants or colonists were industrial and

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political, not feudal. In the corporate colonies no effort even was made to develop a system of quitrents. But in the later proprietary provinces more of the forms of the fief appear. In the charters of Maryland, Maine, and Carolina it is distinctly stated that the rights of the grantees should be as great as those enjoyed by the bishops of Durham.¹ In Penn’s charter no reference is made to the bishop of Durham, but otherwise, with the exception of certain limitations introduced with the purpose of upholding British sovereignty, its provisions were the same as those of the others. Tenure by free and common socage and nominal payments to the king these grantees enjoyed, as did the corporations which preceded them.

The reference in these charters to the bishops of Durham indicates a certain general fact, which, indeed, would have been true had the expression been altogether omitted. It means that it was the intention of the crown to bestow on these grantees rights and privileges which, in a general way, should be the equivalent of those enjoyed in the later middle age by a count palatine.² These were regalities, or powers in their essential nature regal, and they were possessed in larger variety and higher degree by the count palatine than by any other English subject. In the cases of Chester and Durham they originated in prescription, and were confirmed by royal allowance and judicial decision. In nature they were territorial and governmental, and their combination made of the county palatine a great fief, an imperium in imperio. In Durham the bishop was the feudal superior; all land was held directly or indirectly of him, and its possessed full seigniorial rights. Land escheated to him; he was entitled to forfeitures for felony, and even for treason. Special royal rights, as those over forests, those to mines, wrecks, treasure-trove,

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and the like, attached to him. Baronies developed within the palatinate, and those who held them were the tenants in chief of the earl or bishop, served him in council, and held toward him a relation analogous to that sustained by the barons of England toward the king. The lord bishop and his county were also served by a body of officials, not so large or so perfectly differentiated as that of the kingdom, but still analogous to it. Among them were a sheriff of varied functions, a steward, coroner, constable, chamberlain, escheators, and above all a chancellor. Officers of the household also appear as distinct from the officers of state. A judicial system existed, with a curia episcopi at its head, and before these courts all varieties of pleas, including pleas of the crown, were held. In the fourteenth century, a court of chancery developed. Full right of pardon belonged to the count. Councils in the nature of parliaments were held, aids and subsidies were levied, tenants called out in military array. Money was coined; ports, markets, and fairs established; writs, precepts,—and commissions issued; letters of incorporation and charters of privileges were granted. The counties palatine being situated on the bowlers and being remote from the residence of the king, their lords had a certain status in foreign relations.

Until the legislation of Henry VIII, by which the independence of the counties palatine was seriously curtailed, all royal writs, except that of error, were excluded, and government was conducted with only occasional recognition of the king. Transitory actions, by virtue of the general principle covering them, might be tried in an adjacent county, but all other civil suits in which both parties were tenants of the count must be tried in the palatinate. But by the act of 1535¹ it was provided that thenceforth all writs, original as well as judicial, should run into these liberties, as they did elsewhere in the kingdom; that indictments should be in the name of the king; that the king should appoint civil and criminal justices and justices of the peace in the liberties, and that all statutes made concerning sheriffs and undersheriffs should be in force against the stewards and other

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similar officers of the counts palatine. Thus the king became the keeper of the peace in the palatinate. In the same reign representatives were first summoned from Chester to attend the House of Commons, though Durham remained legally free from that obligation until 1675.¹ When the counties palatine came to be represented in parliament, the system of taxation existing in the realm was extended into these liberties, and all except the shadow of former independence disappeared. Thus the growth of national unity proved in this case an irresistible foe to the continuance of special jurisdictions, with large and somewhat exclusive powers, existing as they did where neither location, race, nor culture made their survival a necessity.

It is evident that neither the London company nor the Plymouth merchants were guided by such a model or ideal as this. The corporate colonies exhibit none of its characteristics. The London merchants, though they founded a proprietary province, departed widely in most respects from the forms which the palatinate suggested. It would be too much to say that Gilbert and Raleigh had it distinctly in mind. But Gorges, at least during his later career, was an advocate of the feudal type of colony, and, could he have had his way, would have firmly established it in New England. Lord Baltimore and the Carolina proprietors followed in much the same line, though with abundant variation in detail. In some respects also they showed greater liberality of spirit than did Gorges. The development in New York was strongly aristocratic and feudal, though Dutch feudalism and wealth gained largely by trade furnished the bases on which it rested. In New Jersey and Pennsylvania, tendencies were operative which to a large extent democratized the province and obscured the original type. In the case of none of these provinces dill the English palatinate serve as more than a general type, it background, a sketch, an outline. The picture in each case was filled in with a free hand. The province was the result of a development upon lines broadly suggested by the palatinate, rather than an exact reproduction

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or copy of the original. The offspring, if a filial relation in any true sense could be affirmed, grew to maturity under physical and social conditions which were very different from those to which the parent was subjected. Corresponding variations of type were the result. These appear in the land system, in the official system, in local subdivisions and government, in the administration of affairs in all departments.

The object of the study of these provinces as institutions is to show how, while they were fundamentally of the same type, they exhibit many variations and divergences from it. The general outcome from the whole, and the contribution brought through each province to the total result, will appear only after such a comparison. Social and political forces of different kinds, and combined in various ways, operating both upon the proprietors and the people of the provinces, produced the final result. In order to show exhaustively what the result was and why it was, all the sources of the history of the period, so far as they relate to the provinces in question, might well be brought into requisition. All, however, that can now be done is to indicate some of the leading phases of the process.

By the Maryland charter, which reveals as distinctly its any the characteristics of this form of grant, the patentee, his heirs and assigns, were given all and as ample rights, jurisdictions, and immunities within the limits of the province, as were or had been enjoyed by any bishop of Durham within his bishopric or county palatine. This also is the meaning of the statement that Lord Baltimore and his heirs were made the “true and absolute lords anti proprietaries” of the region. The territory granted was, moreover, expressly made a province, a name was given to it, and it was declared that it should be independent of all other provinces.¹ The fact that the grant was made to Lord Baltimore, his heirs and assigns, shows that it was heritable with power of alienation in the grantee. It could be leased, sold, or otherwise disposed of, like any estate of land; and in the case of other proprietary grants such transfers were common. It was provided

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that the proprietor, though tenant in chief, should hold by socage, paying annually a nominal rent to the king. The province was made subject to the king’s sovereign control, and all its inhabitants were his liegemen. They retained the right to buy, receive, and hold lands, and corresponding to this the proprietor was empowered to grant or lease the lands of the province to settlers in fee simple or fee tail. The operation of the statute quia emptores within the province was suspended, so as to admit of subinfeudation, and in addition it was expressly provided that grants should be held of the proprietor and not of the king. Upon the estates thus bestowed, power was given the proprietor to erect manors with manorial courts and view of frank-pledge. These were the seigniorial or territorial rights and powers, so far as they were expressed in the charter. Few of them, and those not the most characteristic, appear in the patents issued to corporations. Connected with them more or less closely was the right to transport colonists and their goods to the province, and to carry on trade with the settlers. In the exercise of this power harbors were to be erected, where exclusively the business of import and export should be carried on, while taxes and subsidies imposed at the ports were reserved to the proprietor.

But governmental powers, or the minor regalities, were also bestowed on the proprietor in full measure. He was authorized to legislate through an assembly of the freemen concerning all matters of public interest and private utility within the province. The laws thus passed should be published under the proprietor’s seal, and executed by him on all inhabitants of the province, and on all going to and proceeding from it, either to England or to foreign countries. The right to issue ordinances was bestowed in such a way as to supplement the legislative power, and, under the general limitations specified in the act 31 Henry VIII, c. 8, concerning proclamations, it was to be used for the preservation of the peace, and the better government of the people, when there was not time to call the deputies together. The proprietor was given authority to inflict all punishments, even to the death penalty (haute justice), and to pardon

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every crime which he could punish. As the statute of Henry VIII limiting the independence of the counts palatine did not extend to plantations, Baltimore was empowered to establish courts and appoint all officers, judicial and others, who were necessary for the execution of the laws. He was also given the right to bestow titles of honor, erect towns and boroughs, and incorporate cities. The powers of a captain general were given him, with authority by proper means to arm and train the inhabitants, and lead them in defensive war. Closely connected with this was the right to execute martial law for the suppression of rebellion. The advowson of churches and chapels, the right to found these and to cause them to be consecrated according to the ecclesiastical laws of England, was also bestowed. The language used apparently excluded the consecrating of other than Anglican churches. The organization of the government was left wholly to the proprietor. The only limitation err the legislative and ordinance powers was, that the enactments and orders issued should be consonant to reason, and as agreeable as might be to the laws and rights of England. No provision was made for the submission of the acts of the legislature to the king, or for appeal to the English courts, though cases could probably be removed into those courts under the forms and conditions which of old had applied to the palatinates. Moreover, the right to hear appeals existed by virtue of the sovereign power of the crown, and the right to claim its advantages belonged to the subject by common law. Finally, following in the strictest manner the principle of immunity, the king expressly renounced the right to levy taxes upon the province. He declared that he would not levy any tax or contribution on the persons, lands, or goods of its inhabitants, either in the province or in the ports of the same. So far as American charters are concerned, this feature of the grant is unique. In general it is true that the provisions of this charter concerning government are much more full and precise than those of the earlier charters to corporations, those documents being mainly concerned with the internal organization of the companies, and containing nothing specific concerning the relations between the companies

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and their colonists. The existence of colonial assemblies is first mentioned in the later proprietary charters.

In their provisions the charter of Maine and that of Carolina, except in the point last mentioned, differ only in slight details from the Maryland patent. The Carolina charter provided for a board of eight proprietors, but as they were not incorporated, no regulations as to the way in which they should hold their meetings appear. In the grant of Maine to Sir Ferdinando Gorges the way was left open for the proper exercise of royal control by the provision that in matters of government the province should be subject to the regulations issued by the board of commissioners of plantations, which had been created in 1634. By implication in the Carolina charter the right of the colonists to appeal to the English courts was guarantied in the clause providing that they should not answer in any courts outside the province, except those of England. Each charter had special provisions concerning religion, and to an extent also concerning trade. The charter of New York was brief, but it outlined the salient features of the palatinate. It made express provision for appeals, but included no reference to a legislature.

The charter of Pennsylvania was granted late, after some of the defects in the proprietary system had begun to appear. These arose from the difficulty of enforcing royal control, so as to secure the trade interests of the mother country and the defence of the empire. Hence the points in which Penn’s charter differs from the earlier patents have reference mainly to relations with the home government. The right of the inhabitants of the province to appeal to the king was expressly guarantied. It was provided that, within five years after their passage, all acts of the general assembly should be submitted to the king for his acceptance or rejection, and that, if they were not rejected within six months after presentation, they should stand. The reasons, so far as mentioned, which should justify rejection, were inconsistency with the lawful and sovereign prerogatives of the king and with the faith and allegiance due to the government of the realm. The proprietor was also required to

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keep an agent resident in or near London, so that he might appear at courts to answer any complaints against the proprietor and pay damages. If for one year there should be no such agent, or if for a year he should neglect to answer for penalties, it was declared lawful for the crown to resume the government of the province and keep it till payment should be made. The king also agreed to levy no tax on the province without the consent of the proprietor or chief governor, the consent of the assembly, or by act of parliament. Thus the possibility that parliament might tax the colony was clearly recognized. This group of provisions gives a completeness to the Pennsylvania grant, so far as relations to the home government are concerned, which appears in no other charter. Such being the case, there was no need of specifically guarantying to colonists the rights of English subjects. Finally, the absence of any clause authorizing the bestowment of titles of nobility is suggestive of the political views of the Quaker proprietor.

The difference between the institution sketched in these charters and the corporate colony is very clear. When a proprietary province of this type was created the governmental machinery of the palatinate was not removed into America, as was done in the case of the corporation of Massachusetts. That would have been useless, to say nothing of its impracticability, for, in the case of the proprietorship, the grantee was a natural person, and the form of the province could not be affected by the place of his residence. Its organization would be the same, whether he resided in England or in the territory which had been granted to him. The spirit also in which the powers of the proprietor were administered would not necessarily be modified to a great degree by his residence in the province. As a matter of fact, the American proprietors often spent a part of their time in their provinces, and part in England. When in their provinces, it would be less easy to reach them by writ than if they were in England; but power was transmitted, held, and exercised in the same way, whatever might be the place of residence chosen by the proprietor. As the proprietor was the grantee of power, and all was derived

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through him, however intimate might be his relation to the province, he could never lose his identity and become merged in it, as was the case with the corporation, when it was removed into the colony or created on the place. Whether resident in England or in America, he always remained distinct from the province, in the same sense as that in which the king is distinct from the kingdom. He held strictly by hereditary right, and the powers to which he was entitled were not derived from the province or its inhabitants. They were not the grantees, as might be true in the case of the corporation, and therefore could neither hold land nor exercise political rights except as the result of concessions made by or through the proprietor. The proprietor, and not a general court, or general assembly, was the origin and centre of the provincial organism. Authority proceeded originally from above downward, though its exercise was greatly modified and limited by influences which came from below upward. The province in this form was a miniature kingdom, and the proprietor, if he chose to exercise his powers, was it petty king. to be sure, the powers which he exercised were not sovereign, but, as Coke said, they were kinglike, and they were used under the same forms as if they had been sovereign. In all of the later proprietary provinces where a serious effort was made to uphold the power of the executive, we find on a small scale and with modifications a reproduction of the governmental forms and usages of the kingdom of England.

The province, therefore, was not democratic, and, if it remained true to its essential nature, it could not become so. But its nature could be obscured and changed. As an institution it could be changed by the development within it of elements of a popular character, and by their encroachment upon the powers of the proprietor. The legislature might gradually limit or draw to itself the powers of the executive, and thus come to exercise it controlling influence. English institutions in their growth since the Norman period have passed through a development of that nature; and in the American provinces an analogous process may be seen at work, though in them the time required for its unfolding was much shorter

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than in the parent kingdom. The history of the American provinces is emphatically the history of the adaptation of English institutions to the conditions of life on a newly settled continent. There the tendencies favorable to the democratic element in the constitution of the province were stronger than they were in England prior to the close of the eighteenth century, while the obstacles to its development were less powerful than in the mother country. Through migration to the New World the bonds of custom were relaxed, and freer scope was given to innovation. Those who became colonists came largely from the classes which were least wedded to the aristocratic and monarchical institutions of the Old World. The political and social privileges which were attached to land-holding in England could never be reproduced in a new country, and under an exclusively socage tenure. There was necessarily far less social inequality in the colonies than in the old countries, and the proprietor could scarcely hope that an aristocracy would develop and become a support for his power. So sparsely were the colonies settled, that large estates, even where they existed, had relatively few tenants, and hence yielded only a small income. The proprietor, with his hundreds of thousands of acres, might be and often was land poor. He, moreover, possessed none of the dignity which belongs to the office and title of king. He himself was a subject, and, whether peer or commoner, inviolability attached to his person in no higher degree than it did to any of his class among the population of England. The church could awaken for him only the respect which attaches to magistracy. The proprietor also, in any struggle upon which he was forced to enter for the maintenance of his claims, could command only the resources of a single family or group of families. Sometimes these resources were pitifully small, and were even the subject of litigation in the bankruptcy court. In any event they were likely to be too limited to admit of great displays of political energy, to say nothing of military power. These all are causes and tendencies which facilitated the democratizing of the American province, which made the process shorter and more certain of ultimate success than in the European kingdom.

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But it took the entire colonial period of our history and a revolution at its close to complete this course of development, and thus to transform the province into the democratic commonwealth. A transformation which in the case of the corporate colony was virtually effected by a single act, required for its completion in the province a century and a half. This of itself is adequate proof of the radical difference between the two forms of colonial government which we are studying. The province could not be democratized until the proprietor was gotten rid of, and that object was not attained until independence of England was declared.