200

CHAPTER IX

CAROLINA AS A PROPRIETARY PROVINCE. THE CAPE FEAR AND ASHLEY RIVER SETTLEMENTS, SOUTH CAROLINA

When Virginia became a royal province the unoccupied territory south, as well as north, of the latitude of Point Comfort again became subject to grant by the king. In 1629, not far from the time when Lord Baltimore was prospecting in Virginia, the first Carolina grant was made¹ to Sir Robert Heath, attorney-general and afterwards chief justice of common pleas. Though he had been concerned in the dissolution of the London company and was one of the royal commissioners appointed after the revocation of the charter for the government of Virginia, Heath never took sufficient interest in colonization to undertake the settlement of his province. A plan in which the Vassalls, a prominent Puritan family to which reference has already been made, were interested for the settlement² of a body of Huguenot refugees within its limits failed. After that Sir Robert Heath assigned his interest in the province, according to one account,³ to Samuel Vassall and to the heirs of Sir Richard Grenville, and according to another to Lord Maltravers, the heir of the Earl of Arundel, from whom it passed to the Duke of Norfolk and his family. Both claims were quite shadowy. Though the province was thus neglected by the immediate grantees, the faint beginnings of settlement were made within the northern part of the region by emigrants from Virginia, while certain New Englanders became interested in trade and colonization⁴ near Cape Fear. Thus early, and in both these

201

localities, a certain nonconformist trend was given to the development of the province.

When, in 1663 and 1665, the Earl of Clarendon, the Duke of Albemarle, Lords Craven, Ashley, and John Berkeley, Sir George Carteret, Sir William Berkeley, and Sir John Colleton procured their patents for Carolina, an order in council was issued for the institution of legal proceedings against the claims of the early assignees.¹ Under the new grantees the work of colonization actually began.

The fact that, unlike Maryland and New York, Carolina was granted to a board of proprietors, had no small effect on the course of its development. With that system, which Carolina shared in common with the Jerseys, the consistency and strength that was possible under a single proprietor was scarcely attainable. The attention of all the members of the Carolina board was far more absorbed by English affairs than they were by those of the province. With one or two exceptions they could no more be regarded as experts in colonization than could the great majority of the members of the New England council. In fact, between these two bodies, as well as between the policies which they pursued, more than one suggestive resemblance may be traced. Ashley alone devoted himself seriously to Carolina affairs, and that for only a limited period. Sir William Berkeley for a brief time had a somewhat intimate connection with the Albemarle settlement. Of the original board Colleton died in 1666, Albemarle in 1669, Clarendon, after having lived in exile seven years, died in 1674. Lord John Berkeley took no interest in the affairs of the province after the lapse of the first five years. Of the original grantees

202

the Earl of Craven survived the longest.¹ Within a period of less than twenty years the process of natural inheritance almost entirely changed the personnel of the board. Their shares passed to heirs, the transfer sometimes occasioning litigation or necessitating appointments of trustees for heirs who were under age. Under these conditions it was impossible to maintain the interest in the province which was felt by the board as first organized. The transfers also brought in men of little weight or influence, and of widely differing opinions. Meetings were held at irregular intervals; little attempt, except the impractical one set forth in the Fundamental Constitutions, was made by the proprietors to organize themselves for business. Few records were kept, and business, so far as any was done, fell naturally into the hands of small groups² within the board. These facts explain in a large degree the vacillation which is discernible in the policy of the Carolina proprietors, and the looseness which characterized their administration.

Soon after the issue of the first charter to Clarendon and his associates, negotiations were opened with them by two groups or associations of would-be colonists. One of these consisted of New Englanders who, in connection with certain adventurers resident in England, had already been concerned in a temporary settlement near Cape Fear, and wished, under conditions agreed upon with the proprietors, to establish a permanent colony on or near that part of the coast. The others were colonists from Barbadoes who had sent an explorer to the Carolina coast, and desired to remove thither if satisfactory conditions could be obtained from the proprietors. Peter Colleton—a brother of the proprietor—and Thomas Modyford were interested in this plan, while both the Barbadians and the New Englanders seem to have employed Henry Vassall as an agent in England.

The ideas which the two bodies held concerning government and the relation in which they would like to stand toward the proprietors were not unlike. Both desired a grant of land within the province and a distinct status therein, thus

203

reminding us of arrangements long before made by Gilbert and Raleigh, and later in some cases by the London company and the New England council. The Barbadians asked to be called the corporation of Barbadian adventurers, and wanted a county or “corporation” in which to settle. They also desired that the governor and the members of the council should be removable only by their official associates.¹ On behalf of the New Englanders it was stated that they had ever enjoyed the benefits granted to corporations; and among those benefits were mentioned full liberty to choose their own governors, and make and confirm their laws, together with immunity from all except self-imposed taxes. In addition to unfavorable reports which were in circulation about Cape Fear, it was said that the New Englanders would probably abandon the enterprise if they had none of the privileges just mentioned. The Barbadians stated that, as many of their number were “of good quallity” and were thus fit to manage the government, they expected “to have sole power of electing all delligates, Governors and officers, and making Lawes, and governing amongst themselves ac-cording to the tenor and Priviledges of the said Graunte or charter from his Majestie. . . .” If such policy were pursued, the petitioners thought it would promote the settlement “of many other considerable corporations” within Carolina. Colleton and Modyford suggested that the proprietors appoint persons to treat with the petitioners, and bring them to accept the right to make by-laws only, and to elect such officials as, for example, the county of Exeter had, while general laws should be made by the inhabitants of the whole province of Carolina. These suggestions,² together with the design of the proprietors to secure colonists from all possible quarters, gave a decidedly liberal tone to the “declaration and proposals” which were issued in August, 1663. These had special reference to Cape Fear, and, so far as provisions relating to government were concerned, were not intended for the northern part of the province. Besides the provisions concerning grants of land, with proprietary reserves and a quitrent, the proprietors in this

204

document agreed that the colonists should present to them, the names of thirteen persons from whom they would appoint one to be governor and six to be councillors. Both governor and councillors should hold for six years, and at the end of that time a new list of names should be submitted. Provision was also made for freedom of conscience and for the election of an assembly which should have the usual powers. But the New Englanders, as an association, did not take advantage of these proposals, though there is evidence that individuals from that section took up their residence in the settlement.¹

Before the proprietors had come to a definite agreement with the body of colonists from Barbadoes which first negotiated with them, a second group, led by Sir John Yeamans and Major William Yeamans, submitted conditions. These were accepted in 1665, and by Yeamans and his associates a settlement was founded near Cape Fear.

This was the beginning of Clarendon county. But in addition to this jurisdiction the proprietors had planned, as we have seen, for a county of Albemarle on the north, and a county possibly to be called Craven on the south. The provisions of the elaborate Concessions and Agreement of 1665, which were issued for all these counties, must now be reviewed.² In this document provision was made, not only for an executive organized in a way similar to that already in existence in Albemarle, but for the immediate calling of an assembly and for its annual sessions thereafter. This body, though consisting of freeholders, was to be elected by the freemen of the province, without designated property qualification. The powers bestowed upon the assembly were such as to make it from the outset the centre of the colonial government. It could appoint its times and places of meeting, adjourn itself, pass all laws; establish courts and determine their jurisdiction, together with the number of their officers, their fees and salaries; levy all taxes and provide for the payment of all expenses of the government; erect baronies and manors, with their courts; divide the province into counties, hundreds, and parishes, designate the amount of land to be granted to individuals, and make rules for the

205

issue of such grants; erect forts, build towns and cities, provide in all ways for defence, and enact all other necessary laws. In the exercise of their administrative powers the governors and councils were to be guided by the laws, were to execute them in detail, and were to see that all subordinate officials obeyed and enforced them.

The difference between this document and any which proceeded from the Calverts or the Duke of York is very noticeable. According to these Concessions the judicial, military, and financial systems, and the organs of local government, were to be created by and through legislation. To the governor and other officials—the representatives of the proprietors left only the task of carrying into execution the commands of the legislature. The proprietors seem not to have thought of reserving the right of initiative. Had this scheme been carried into permanent and complete operation, the governments within Carolina would at once have assumed the form which the provinces generally did not reach till some time in the eighteenth century. From the outset the assembly would have occupied a position which elsewhere it won only as a result of prolonged effort and the accumulation of many precedents. Neither Lord Baltimore nor the Duke of York committed themselves at the outset on the subject of government. The Concessions of which we are now speaking are the earliest example of their class, and we know that they also served for New Jersey.

Were it not for the subsequent issue by the Carolina proprietors of the Fundamental Constitutions and their continued attempt to enforce them, it would be natural to attribute the issue of the Concessions and Agreement of 1665 to their liberal views concerning colonial government. One might argue that the development of legislatures in the other colonies, and the express recognition of parliament by the Restoration government as a permanent feature of the English system, had convinced the proprietors that it would be best to make all necessary concessions at the outset. In English politics Clarendon, and especially Ashley, were standing for such recognition of facts, while many of the letters and instructions of the board of proprietors during the early years

206

of its existence have a certain broad and liberal tone. But, the history of the Fundamental Constitutions, as well as the hints we have concerning the origin of the “proposals” of 1663, would seem to necessitate the inference that the liberal features of the Concessions and Agreement were due as much to the Barbadians as to the proprietors. Indeed, the document itself expressly purports to be an agreement, a covenant, between proprietors and settlers as two parties, the conditions of which the proprietors promise to fulfil. In the terms of public law it was a grant, but one which was made very liberal. The reputation of the Barbadians as supporters of royal government against the Commonwealth naturally convinced the proprietors that such men would be safe custodians of power. In a suggestive letter written by the proprietors to the adventurers in January, 1665,¹ they state that William Yeamans had been very careful of the latter’s advantages, and by his ingenuity, “hath prevalyed with us to consent to more than severall people would have accepted from us.” But of this the proprietors declare that they did not repent, because of the forwardness of the adventurers to settle near Cape Fear and later to form another settlement south of Cape Romania. In the case of the Carolinas more spontaneousness appears on the part of the settlers, together with less rigid and continuous control by the proprietors, than is observable in the early history either of Maryland or New York.

As soon as the Concessions and Agreement were issued, Sir John Yeamans was appointed governor at Cape Fear, with jurisdiction also over all the southern part of the province. In the fall of 1665 he landed at Cape Fear a body of colonists from Barbadoes, and possibly some from others of the West India islands. Yeamans himself soon returned to Barbadoes and did not visit the colony again, except possibly in the summer of 1666, when there is some evidence that he held an assembly at Cape Fear. But the shipping, both on the first voyage and in the later voyages, suffered greatly from the storms and shoals along the coast.² A voyage of

207

discovery commanded by Robert Sanford, the secretary and register of the colony, revealed anew the attractiveness of the coasts as far south as Port Royal. This probably strengthened a desire, already existing in the minds of the settlers who had come under the lead of Yeamans, to remove to some place farther south. Though the colony of 1666 is said to have numbered eight hundred settlers, and was apparently on the road to permanence, dissensions existed from the start. They arose from the presence among the colonists of representatives of the New England interest, of those Barbadians who had negotiated with the proprietors in 1663, as well as the larger body of Barbadians who had secured the Concessions. The older elements complained of the provisions in the Concessions which related to the allotment of land. They declared that these regulations not only interfered with their antecedent rights in the soil, but that the existence of so much waste and swampy land made an unidecimal division of the whole by lot to appear unjust. An appeal on the subject was sent to the proprietors, which Yeamans neither disapproved nor openly and expressly supported. The opposition charged him and his party with lack of interest in Cape Fear and with the desire to remove to the south. Under these conditions, and with practically unanimous consent, the colony was abandoned in 1667, the colonists withdrawing to Albemarle, Virginia, and New England. By this event Clarendon county, the middle region, was left vacant, and the first and decisive step was taken toward the separation of Carolina into two distinct provinces.¹

At this juncture the Earl of Clarendon was driven from office and from public life in England, and the Earl of Shaftesbury, with the assistance of John Locke, became for a few years the most active member of the board of proprietors.² Shaftesbury’s interest was chiefly directed toward the southern part of the province, and his efforts, together with those of Sir John Colleton and the Barbadian adventurers,

208

resulted in the founding of the Ashley river settlements. Previous to this time the efforts of the proprietors to settle their province had not been especially successful. Notwithstanding liberal concessions,¹ the Cape Fear settlement had proved a failure, and Albemarle county contained only a few hundred people. The vast coast region of the province, with its sand-bars and narrow inlets, its deep rivers and inaccessible stretches of swamp and forest, still remained almost untouched. The proprietors now directed their attention chiefly to two objects, the settlement of the region south of Cape Carteret and the development of the province as a whole according to the most elaborate feudal model. In July, 1669, the Fundamental Constitutions¹ were issued, and that with the intention that they should take the place of all earlier concessions. Four later editions of the Constitutions were prepared, and for the next thirty years the proprietors made it one of the continuous objects of their policy to induce the colonists, especially of the southern part of the province, to accept them. They embodied a distinct and express reaction against the liberal policy which had hitherto characterized the attitude of the proprietors toward the province. In the preamble it was declared that the purpose of the proprietors in issuing them was to make the government of the province “more agreeable to the Monarchy under which we live” and to “avoid erecting a numerous democracy.”

The Fundamental Constitutions have a significance which is derived both from what they reveal concerning the nature of provincial institutions in general and from their influence on the history of Carolina in particular. They set forth, more clearly than any other document we possess, the feudal and monarchical idea of the province. Shaftesbury repeatedly stated that he considered them the best concessions which had been issued in any colony.² According to the plan which they contained, political power was, so far

209

as possible, to be concentrated in the possession of the nobility and the proprietors. The board of proprietors itself was organized under the headship of a count palatine, while among the remaining seven the powers of government, which in the case of Maryland were concentrated in a single hand, were distributed. A copy in miniature of the English court, with its treasurer, chancellor, justice, high steward, constable, admiral, was thus formed. The proprietors acting jointly as the palatine’s court had, among other powers, those of appointment, pardon, and the calling of parliaments. Each proprietor, in conjunction with certain commissions, was to be the head of a distinct court in which the business that was especially intrusted to him was transacted. The proprietors as a whole, together with the councillors of all the proprietors’ courts, formed a grand council.

The creation of this imposing executive was immediately connected with a change in the policy of the proprietors respecting the legislature. An effort was now begun to bring it into greater harmony with the earlier traditions of the county palatine, with the feudal type of government the acceptance of which the proprietors through the Constitutions sought to enforce. For the name “general assembly” was substituted that of “parliament.” Provision was made that it should meet biennially, and that it should consist of the proprietors or their deputies, the provincial nobility, and one representative from among the freeholders of every precinct. The electors should possess fifty acres of land each, and the property qualification of a representative should be the ownership of five hundred acres of land lying within the precinct for which he was chosen. The members should sit and deliberate together, but should vote in four distinct groups. If the majority of any one of the four estates—the proprietors’ deputies, the landgraves, the caciques, the representatives—should vote that a measure was not consistent with the Fundamental Constitutions, it should not pass. Provision was also made that all matters which were to be brought before parliament should be prepared in and approved by the grand council. This body, as we have seen, consisted of the proprietors resident in the province

210

—or their deputies—and the councillors of the proprietors’ courts. As in Maryland, so in this plan, the right of initiative was thus reserved by the executive. The palatine court was given the right to negative acts of parliament, except in two cases, and none of its acts should go into force till ratified by the palatine or his deputy, and by three of the other proprietors or their deputies. Moreover, the legislative sphere of the parliament was much less broad than that of the general assembly as specified in the Concessions of 1665. There is no recital of its powers in the Constitutions, but from the provisions of the document in general¹ it appears that it was to have only the formal power to regulate the granting of land, the erection of manors and baronies, the establishment of offices and courts, the making of war, and the doing of other things which were specified in the Concessions as fully within the sphere of the legislature. It voted taxes, and that of course was a powerful lever; but the evident intention of the framers of the Constitutions was, by the creation of machinery above it, to reduce the power of the Carolina legislature to a shadow.²

Of the Constitutions, two editions were prepared: one dated March 1, and the other July 21.³ The latter was an amended copy of the former, and was the edition which the proprietors first sent into the province as “the unalterable forme and rule of Government forever.” But notwithstanding this emphatic statement, in 1687 four of the proprietors, led by the Earl of Craven, issued a statement to the effect that the text of the Constitutions which was issued in 1669 was imperfect and not considered to be final. This, however, was denied by the colonists, and it was said that in no transaction with them had the proprietors exercised greater care than in the issue of the Constitutions of 1669.⁴

With the issue of the Concessions and Agreement and of the Fundamental Constitutions the custom was initiated among the proprietors of outlining at the beginning, and in more or

211

less idealistic fashion, the general features of the system of government which they proposed to erect. The custom was imitated by the proprietors of East and West Jersey and by William Penn. It gave character to much of later proprietary history, and helps to distinguish it from that of Maryland and New York. In the last-mentioned provinces no elaborate programmes, favorable or unfavorable to popular rights, were published, but government was suffered to adjust itself to conditions as they developed. In South Carolina, the Jerseys, and Pennsylvania an effort was made by the proprietors to anticipate the course of development, and to guide it in certain definite lines. The documents in which these plans were set forth, whether known as constitutions, concessions, or frames of government, stood on the border line between instructions and statutes. They were charters of government, or octroi constitutions, issued under the general authority which the proprietors had received to govern their provinces. Their provisions in many cases were elaborate, and in some cases were grotesquely ill adapted to the conditions of new settlements. In the end they all had to be modified or abandoned, while the fact that they were ever issued furnishes sufficient evidence of the impractical notions of many of the proprietors. In South Carolina the efforts of the proprietors to put the Fundamental Constitutions into force were continuous and very prolonged. Partly because of the reactionary character of the document, these efforts were persistently, and in the end successfully, opposed by the colonists. Since it is true that, until after 1690, the institutional development of the province was to a large extent conditioned by this struggle, it is necessary to outline its chief features.

Actually and by means of instructions the proprietors put some of the provisions of the Constitutions wholly or partly into force in South Carolina. When the decision was reached to found a colony south of Cape Romania, the proprietors sent a blank commission to Sir John Yeamans, with the request that he would insert the name of him whom he thought most suitable for governor.¹ Yeamans, though he still

212

retained the title of governor of Carolina, was at this time in the Barbadoes; moreover, because of his abandonment of the settlement at Cape Fear, he was distrusted by the proprietors. After having given assistance to the colonists who were about setting out from Barbadoes for Carolina, Yeamans accompanied them as far as the Bermudas, where he designated William Sayle as governor. In the documents accompanying this commission the proprietors admitted that the number of people who were expected at Port Royal would be so small that the Constitutions could not at once be put into force. There were as yet no landgraves or caciques among the colonists. For this reason, as a compromise, the proprietors, acting individually, appointed five deputies, and an instruction was issued that, as soon as they reached Carolina, the freemen should be called together and should elect five other deputies to be joined with those appointed by the proprietors to form the council. All officials were required to swear or subscribe fidelity to the proprietors and to the form of government by them established.

The instructions also provided that those who received grants of land within the province should, with their oath or declaration of fidelity, acknowledge their submission¹ to the Constitutions. This implied that the acceptance of the Constitutions was to be a condition without which colonists would not be permitted to settle in Carolina. It further implied that the proprietors intended to treat the Constitutions as executive orders, and that, if this theory prevailed, they would never be submitted to an assembly of the province for its acceptance or rejection. Many of the provisions of the document related to the organization of the council and courts, to the powers and titles of officials, to the granting of land, to the creation of a provincial nobility. These all were matters over which, after the abrogation of the Concessions and Agreement, the proprietors claimed full control.

By the instructions of 1669 provision was also made for a parliament of twenty members, elected by the freeholders of the province. Its acts, when ratified by the governor and three of the five deputies of the proprietors, should be in

213

force as provided in the Fundamental Constitutions. According to the plan contemplated in the Constitutions, the executive should possess the sole right of initiative. This right the proprietors soon began to claim, and continued to insist upon it as long as there was any prospect that it might be secured. Considerations such as these show how the proprietors might plan to secure their object solely by executive action.

But the royal charter provided that the proprietors should legislate with the assent of an assembly. The colonists, falling back on this, insisted that the Fundamental Constitutions must be regarded as a bill, and if they were ever to go into force it must be as a statute. They did this the more promptly, because it was the only way in which they could protect themselves against the reactionary provisions of the document, and ultimately secure what had once been granted in the Concessions and Agreement. They met the proprietors substantially with the demand that the Constitutions be abandoned, or be submitted to the parliament for its action.

This demand was formulated very early. While the colonists were at Port Royal, and before they decided to abandon that place for Albemarle Point, the elective members of the council were chosen. William Owen, one of the defeated candidates, challenged the legality of the election, and it was held a second time without change of result. With Owen soon became associated William Scrivener, one of the council and a deputy of Lord Berkeley.¹ These men were dissatisfied because Yeamans had appointed Sayle, a Puritan, as governor, instead of retaining the office himself. They also came to insist, as has already been stated, that all attempts to govern according to the Constitutions, until they were accepted by the colonists, violated the provisions of the charter concerning legislation. It followed from this, as they thought, that the people of the province were still legally entitled to the benefit of the Concessions of 1665. In the light of the early acts of the proprietors there was indeed much to be said for this view, and, as has been indicated,

214

it practically determined the attitude of the colonists throughout the province toward the Fundamental Constitutions.

In the summer of 1670 Governor Sayle and the council, wishing to restrain the profanation of the Sabbath and other abuses, considered whether or not, as provided in their special instructions, an assembly should be called. But they found that there were not sufficient freeholders in the settlement to admit of the election of twenty members. Therefore it was resolved that the necessary orders should be issued by the council. But while the orders were being discussed and published before an assembly of the people, Owen held an election and returned the names of those who were chosen as representatives.¹ No notice, however, was taken of this, and the orders were duly published. The dissentients then protested against the legality of this procedure, but without immediate result.

In the spring of 1671, after Sayle’s death and the accession of West to the governorship as a temporary appointee, Owen and Scrivener again sought to alarm² the colonists, especially certain newcomers, by the plea that, as the seal of the province had not yet been received, they had no assurance of their lands unless a parliament was chosen which should pass an act in confirmation of the grants. To this the governor replied that he considered that the instructions of July, 1669, gave him sufficient authority, with the advice of the council, to guaranty estates until the seal should arrive; then all grants should be sealed. This, with the declaration that it was his intention to call a parliament when a proper time came and when it became evident that the settlement needed laws, quieted opposition. But so angered was the governor and some of the councillors by this attack that both the assailants were declared incapable of holding public office till further orders, and Scrivener was suspended from the council. That Owen and Scrivener, however, were among the most intelligent men in the colony and not mere agitators, is evidenced not only by the arguments they used, but by the fact that both of them soon appear again as members of the council. In July, 1670, a parliament was held, but of its proceedings we know nothing.

215

In August, 1671, after the agitation caused by Owen and Scrivener had subsided, Captain Halsted brought to the colony from the proprietors a set of temporary laws.¹ These reveal anew the fact that the board intended to force upon the province the most important provisions of the Constitutions. These temporary laws provided for an elaborate official system like that of England, for the development as rapidly as possible of the provincial nobility and its incorporation with the council, and for the exercise by the council of the right of initiation and the other powers prescribed for the grand council in the Constitutions. Parliaments were to be called biennially. The creation of landgraves also began at this time, and the governor and council were ordered to have their baronies surveyed when any of the provincial nobility should desire it.

Among the first group of landgraves was Sir John Yeamans. About the time of his elevation to that rank Yeamans appeared in the province, and by virtue of his title took a seat in the council and claimed the governorship.² But West’s administration was popular, and Yeamans’s claim was viewed with disfavor by some of the colonists. Therefore the landgrave retired to his country house in disgust, but was presently called forth by his election as speaker in the parliament which West called in the early summer of 1671. There a contest seems to have occurred between the friends of the governor and those of the landgrave. Some, notwithstanding an express instruction to the contrary,³ thought that West’s appointment had not been made in the way prescribed by the proprietors’ instructions, and the parliament was for a time irregularly adjourned in order to permit a general discussion of the question. At the close of this discussion Yeamans announced that, according to the instructions, the consent⁴ of three of the appointed deputies was required to confirm the acts of the parliament; but only two,

216

besides West himself, who was deputy for the Duke of Albemarle, were living. The way out, as suggested by Yeamans, was that West should resign the office of governor and act as the third deputy. But this West declined to do. Then the parliament broke up, and the recently elected members of the council also withdrew from service. West at once ordered the parliament to meet again to elect members of the council, and in this body Yeamans urged the choice of such men as would “stand at the greatest distance from the Governor.”

In December, 1671, Yeamans in the council declared¹ that, as sole landgrave who was resident in the province, he was vice-palatine and hence entitled to the governorship. But it was resolved to make no change till positive directions came from the proprietors. They, as the event proved, had already taken action; for, as soon as they heard of the death of Governor Sayle, they issued a commission to Yeamans as his successor. This reached² Carolina in April, 1672, and at once terminated West’s first administration. In the instructions which were sent over at the time, the enforcement of the Constitutions and temporary laws was again commanded, and in particular the maintenance of the initiative of the council was required. “For there is nothing to be debated or voted by the Parliament but what is proposed to them by the Council.” John Culpepper came into office as surveyor-general when Yeamans received his commission as governor.

In the governmental system of South Carolina as actually organized the unique feature was the council, which took the place of the grand council of the Constitutions. Its organization, consisting one-half of appointed and one-half³ of elected members, has already been described. The introduction of the elected members involved an important departure from the form of the executive which existed in Maryland and New York. Though the introduction of this

217

group of members was a temporary device, they continued to form a part of the council for twenty years. They were elected by the parliament for an indefinite term, and in their case, as well as in that of the deputies, the right of removal was vested in the proprietors. Through them it was possible for the parliament and the colonists to make their wishes felt in the deliberations of the colonial executive. They tended to ally the council with the colonists. The council, as thus organized, could prepare bills for the assembly, expend money which had been voted by the parliament, levy military forces, and declare war or conclude treaties with the Indians. Its functions were almost legislative in character.

In addition to their place in the grand council the deputies of the proprietors were also organized as a substitute for the palatine’s court. As such they could call, and later prorogue or dissolve parliaments, pardon offences, elect to offices which were at the palatine’s disposal, erect forts, expend funds which were not specifically appropriated, negative acts of the grand council and assembly, and consent to legislation. In short, they could exercise all powers which were not otherwise granted. With the governor they constituted a majority in the grand council.¹ Though in the history of the province we hear but little of the palatine’s court, it is evident that in the plan of the Fundamental Constitutions it was intended to be a stronger body than the council.

Another feature of the council, of which we hear more in the records of the time, was this: As provided in the “temporary laws” of 1671 and 1672 the governor was named by the palatine, while each of the deputies was the nominee of an individual proprietor. This fact was held by Shaftesbury² at least to give the deputies a certain equality with the governor. The governor might be regarded as himself only a deputy. The expression of this view by Shaftesbury was occasioned by efforts of Yeamans to play an unusually prominent part as governor. He prepared or set on foot several improvements, such as the building of works of defence,

218

organizing a militia, building a house for the governor, and one for the entertainment of strangers.¹ These would involve larger expenditure and would call for additional contributions from the proprietors. Yeamans was also charged with subordinating the interests of Carolina to those of the Barbadoes and his own trade with that island. The letters of West and others informed the proprietors of the controversies which had preceded Yeamans’s appointment and of his ambitious policy as governor. This drew from Shaftesbury the statement that the distinction between the governor and the rest of the deputies was “a thing rather of order than of overruling power,” and the governor had no more right than any of the council to depart from the rules laid down by the proprietors. In the face even of a proprietor as governor the deputies should maintain the rights of the proprietary board, and not become partisans of the chief magistrate. This certainly emphasizes the conciliar element in Carolina to an extent which would scarcely have been possible in Maryland or New York. When this is taken in connection with the fact that the governor and council, so far as possible, exercised the right of initiating legislation, and that the council sometimes practically named the governor, one sees that the proprietors were justified in terming the council the “Senate of Carolina,” as they sometimes did.² But the event showed that the affiliations between the council—half elective as it was—and the commons in parliament were so strong that they stood together as a unit against the acceptance of the Fundamental Constitutions. The proprietors’ deputies were ex officio members of parliament, but the elected councillors necessarily had no seats there.³

Of West, Shaftesbury spoke in high terms, and presently added to his offices of storekeeper and deputy that of register or secretary. As the reports came in of the alleged extravagant schemes of Yeamans, the proprietors began to look about for his successor. In 1674 they made West a landgrave and appointed him governor.⁴ At the same time

219

seven of the proprietors adopted articles binding themselves to contribute annually £100 each for the period of seven years, to be expended partly in reducing the debts due from the board on previous expenditures and the rest in supplies which should be sent to the province for sale through an agent. This step was accompanied by repeated statements to the effect that they expected the province to soon become self-supporting and would incur no more debts among its inhabitants.¹ A return of eight per cent on their investment was expected. A set of agrarian laws, sent over at this time, provided for the laying out of seigniories, baronies, and colonies along the course of rivers in such proportions as to give the proprietors and nobility two-fifths of the land.

In 1682, under the influence of Benjamin Blake, Daniel Axtell, and Joseph Morton, a body of several hundred Presbyterians and other dissenters came to South Carolina from Somersetshire and other districts in England. Their purpose was to escape from the dangers which they feared would result from the prospective Catholic revival in England. In reward for their services the leaders of this enterprise were made landgraves, while Morton was in addition made governor.

A few months later certain Scotch Presbyterians, in order to escape from persecution by the Duke of York and Claverhouse at home, proposed to remove to the province under the lead of Lord Cardross. Though the number who actually came was not large, an emigration of several thousand was expected. In order to encourage them in this plan, the proprietors made a few changes in the Fundamental Constitutions. Of these the most important was one providing that, in case the council should neglect to propose fitting laws to be passed by parliament, the grand juries of the counties should submit the desired propositions; if the council should then neglect to initiate them, the parliament itself might take them up and pass them.² A prospect of exemption from the payment of rent after 1689 was also extended to settlers. This slightly liberalized edition of the Constitutions was now twice submitted in various

220

ways to the colonists. Among the elaborate orders which were issued for the granting of land was one repeating the condition that no one should receive an allotment until he had sworn submission to the Constitutions. This also was made a condition of admission to the council. The Scotch settled their colony at the fated Port Royal, where they were permitted to establish themselves to a large extent independent of the Ashley river settlement. Lord Cardross even claimed authority coordinate with that of the officials at Charlestown. This, when taken in connection with the natural aversion of Englishmen at that time toward the Scotch, and the fact that the advent of the new colonists had been accompanied by a renewed attempt to put the Fundamental Constitutions into force, occasioned much jealousy toward the new settlers. How serious or prolonged this might have become the brief existence of the new settlement makes it impossible to affirm. The really important consequence of the advent of the Scotch appears in the fact that it contributed toward the development of a system of local government in the province.

In 1682 the proprietors ordered that the province should be divided into three counties, Berkeley, Colleton, and Craven. Berkeley county should embrace Charlestown and extend from Sewee bay on the north to Stono creek on the south. Colleton was located to the south of this and Craven to the north. Though Colleton county was intended to include the Scotch settlement at Port Royal, not until near the close of the colonial period were steps taken to organize local government for any of the counties except Berkeley. Those, we shall see, were extremely imperfect. Until 1683 elections for parliament were held exclusively at Charlestown, freeholders coming thither from all the settlements to vote, or sending their proxies. This was now becoming a great hardship or an impossibility. An order was therefore issued that votes in the election of 1683 should be polled, not only at Charlestown, but at London in Colleton county.¹ In order to avoid attempts to vote in both counties, they also ordered that voting at the two localities should

221

occur on the same day. Ten members should be chosen from each of the counties.

The first part of the instruction was satisfactory to the colonists at Ashley river, but the second requirement, which gave to the sparsely settled Colleton equal representation with Berkeley county, aroused their opposition. Governor Morton and the council showed their sympathy with the settlement on Ashley river by disregarding the instruction and holding the election as usual. The parliament thus chosen passed several acts, among them being one for the protection of the colonists against prosecution for debts contracted out of the colony. This, as well as the conduct of the governor and council concerning the election, greatly offended the proprietors, and they ordered that the parliament should be dissolved and no other chosen except in compliance with their instructions. Governor Morton was removed from office, and a successor for him was diligently sought. Sir Richard Kyrie, a knight of Ireland, was appointed, but died six months after his arrival in America. Robert Quarry, afterward prominent in the admiralty and customs service, was elected to the office by the council, and discharged its duties for a brief time, though without appointment from the proprietors. Quarry, however, was soon charged with harboring pirates, and in September, 1685, West entered upon a brief third term as governor. He became involved in the controversy over the payment of quitrents, to which reference has been made in another connection. To him also the proprietors repeated their orders, that the revised Constitutions of 1682 should be subscribed and put into force. Realizing that the task imposed upon him was hopeless, West very soon resigned the office and left the colony.¹

Landgrave Morton was now restored to office, and called the parliament together in November, 1685. In obedience to instructions he required its members to subscribe the Constitutions of 1682. Twelve of the nineteen representatives refused to do so, on the plea that they had already subscribed those of 1669. Thereupon Governor Morton expelled them

222

from the house. The remaining seven, with the deputies, transacted the business of the session. But these measures were to no purpose. It was again found impossible to procure the acceptance of the Constitutions by the colonists, and Morton in his turn had to give way to James Colleton, a brother of the proprietor.

In the summer of 1686 a Spanish force from Saint Augustine made a descent upon the coast, plundering the country about the Edisto river and destroying Stuart Town, the settlement of the Scotch at Port Royal. The colonists at Charlestown and vicinity, forgetting for the time their domestic quarrels and their disputes with the proprietors, under the lead of Morton began fitting out an expedition of reprisal against Saint Augustine. They were absorbed in the task when Colleton arrived and assumed the governorship.

The governors who preceded Colleton had been provincials themselves, or men who identified themselves quite fully with the colonists. Colleton, though he had been a resident in Barbadoes,¹ was the first who failed conspicuously in this respect. His failure, however, is partly to be accounted for by the attitude which he found it necessary to assume toward the expedition against Saint Augustine. As England and Spain were then at peace, Colleton felt compelled to forbid the expedition, though the colonists considered that their honor demanded its prosecution. The governor thereupon threatened to hang any who persisted in it, and by this means forced its abandonment. In their chagrin some of the colonists later attributed his course of action to the desire for “a little filthy lucre” which might accrue from Spanish trade.

Colleton was a man of resolution, capable of arbitrary measures and made bold by his consciousness of the support of the proprietors. Through him they made one more effort to procure an acceptance of the Fundamental Constitutions. In the parliaments of 1686 and 1687 a committee undertook the task of proposing such changes as would make them acceptable, but their report soon became so voluminous that

223

it was laid aside. Then Colleton, “in some passion,” produced a letter from the proprietors in which, apparently because of their desire to secure the acceptance of the revision of 1682, they repudiated the edition of 1669 as an imperfect copy. The elected members of parliament then unanimously declared that the government should be directed solely according to the royal charter. They even went so far as to deny to the council the right of initiative. But during two sessions the proprietary deputies insisted on maintaining the initiative. Finally the proprietors ordered Colleton to call no more parliaments without instruction from them, unless some very extraordinary occasion required it. Therefore no laws were passed, the temporary laws were allowed to expire, and by 1690 no statute was in force in the province.

Colleton now undertook to govern the province alone, or with the aid of the appointed deputies, who he knew would support him. His rigorous exaction of quitrents, prohibition of the Indian trade, and punishment of discussion provoked an uprising. Paul Grimball, the secretary, was imprisoned and all the records were seized. On the inspired petition of a number of colonists and the advice of the proprietors’ deputies, and without calling the parliament, Colleton now proclaimed martial law. But so strong was the feeling in opposition to him, that he did not dare to attempt its enforcement or to keep the civil courts closed. In fact, it was only through the people acting as a militia that martial law could be enforced, and they were well-nigh unanimous in opposition to it.¹ Government had practically broken down, when Seth Sothell, the proprietor who had bought the share of the Earl of Shaftesbury, arrived as a fugitive from the Albemarle settlement.

The proprietors had already abandoned Colleton and had appointed Thomas Smith governor. He was one of the richest men in the province, and was soon after made landgrave. But Sothell brought with him a certificate of the proprietors that, by virtue of the clause in the Fundamental Constitutions which provided that the oldest proprietor who

224

happened to be resident in Carolina should be governor, he must be obeyed as such. If the Constitutions, so dear to the proprietors, were to be obeyed, Sothell’s claim must be recognized. But Sothell came as a refugee from the Albemarle settlement, whence he had been banished for alleged rapacity and gross misgovernment. Colleton and his adherents at once arrayed themselves against him. The opponents of Colleton, led by Andrew Percival, by Muschamp, the king’s collector of customs, and by others, supported Sothell in the hope thereby of escaping from the tyranny of Colleton. Sothell assumed the governorship, removed the deputies who opposed him, and called a parliament.

A violent conflict now ensued between the Sothell and Colleton factions. Sothell was publicly charged with treason, and the colonists were called upon to refuse obedience to his authority. But the parliament supported Sothell. He removed some of the deputies and procured from the parliament acts banishing Colleton and disqualifying Bull, Grimball, and Charles Colleton—who had recommended the proclamation of martial law—from holding office. By an unprecedented assumption of authority the ex-governor was required by an act of assembly to present himself for trial before the king’s bench at Westminster. But, notwithstanding the arbitrary character of some of those measures, a considerable number of laws¹ were passed by Sothell’s parliament which were of decided utility for the province. They related to the militia and defence of the province in general, to the building of roads, to taxation and the regulation of trade, to the fees of the governor, while among them was one for the naturalization of French and Swiss Protestants among the colonists. However questionable had been his career in Albemarle, Sothell’s conduct at Charlestown, so far as we know it, redounds to his credit.

But the proprietors, notwithstanding the provision of the Constitutions, refused to recognize Sothell, though at first they did not go farther than to order him to come home and answer charges. This command he did not obey. All the acts passed by his parliament relating to officials, courts, and

225

elections were disallowed. This not only left the French and Swiss aliens as before, but defeated the efforts of Collection’s opponents to punish him and his associates. After Sothell had been in office about thirteen months, 1690-1691, he was ordered to give place to Philip Ludwell, who was formerly secretary of Virginia and an adherent of Governor Berkeley. From him an adjustment and quieting of strife within the province was expected.

The accession of Ludwell to office marks the beginning of a change in the course of Carolina history. Both public and private instructions¹ in elaborate form were given to him, and for more than a decade thereafter these orders were referred to as standing rules of government. In the instructions themselves the proprietors state that they intend them to make void in the southern part of the province all former orders and temporary laws, and to be the only rule of government, save in the granting of land, till they should otherwise direct. Though the proprietors were not yet ready to abandon the Fundamental Constitutions, the drift was now clearly away from them and toward a government under the royal charter, which should retain only the features that were generally found useful in a proprietary province. The policy hitherto followed by the proprietors had made it impossible for government in South Carolina to reach even tolerably stable conditions. Recent experience had shown that the province at any time might fall a prey to despotism or anarchy, though its position on a disturbed frontier made stability and internal peace doubly necessary. Governors had followed each other in rapid succession, but without bringing internal peace. Though the expulsion of Colleton was immediately due to the timely appearance of Sothell, it was an event so unusual as to call for serious attention. By heading a faction in the province Sothell had been able to defy the proprietors for more than a year. After such events no one need have been surprised if the rule of the proprietors had been thrown off at any time. It was already more nominal than real.

By a most important communication, which was addressed

226

to Bothell by the leaders of the opposition in the province, much light is thrown on the workings of the proprietary system. “Most of the Gentlemen of this Countrey,” say the writers,¹ “are soe unhappy as not to know the Lords Proprietors, or to have any Correspondence with any except one or two of them, and they are discouraged from writeinge to those too, because they have not agreed in opinion with them concerning fundamentall Constitutions, Indentures for land and in matters of orderinge the Indian Trade, but when they have writt freely their minds have been chekt, and some dealt hardly with therefore. And the letters sent to the Lords Proprietors from the Councill, sealed and signed by the Commoners, have not been believed, and others not delivered but misrepresented by construction made according to the Letter of those four or five persons here who must, and we had almost said, dare not write but as shall please those who direct them. For though most of them be Lords Deputyes, yett they are putt in by the Governor here, and their persons and dangerous insufficiencies wholely unknown to the Lords who they represent. And this it is that these men which most of them here are known to be extremely preverse or ignorant men, are the only informers of matters here; which, however, would not bee of soe bad a consequence, if other persons could have an opportunity to speak for themselves. . . .This statement doubtless has a partisan coloring. But in spite of that it clearly reveals the source of weakness and failure in proprietary rule.

Though in the instructions to Ludwell several features of the Fundamental Constitutions were retained, the document itself was not expressly mentioned. In the private instructions the proprietors state that both Sothell and the people of Carolina had violated the Constitutions, and that Matthews, who claimed to be an agent of the colonists, had told them that the Constitutions were not recognized by the people of the province. Therefore, they add, “Wee have made your Instructions sutable to our Charter from the Crowne.” This, however, did not mean the total abandonment of the Constitutions, though it foreshadowed such a result.

227

Until this time, and even in the instructions to Ludwell, the proprietors clung to the exclusive right of initiative. Though the existence of an elective element in the council had helped to make such a claim endurable, the colonists had repeatedly ignored the pretension. The instructions to Ludwell stated that the governor’s council should consist of the proprietors’ deputies, thus implying that it should no longer contain an elective element. The inference is confirmed by the first clause of the private instructions, in which the governor was forbidden to call the grand council till the colonists should consent that it initiate legislation—which would be never. This act was the precursor of a concession in the matter of the initiative. On assuming office in 1693, Governor Thomas Smith informed¹ the legislature that the proprietors had consented that the right of initiating laws should be shared between the governor and council on the one hand and the assembly on the other. About this time also the terms “general assembly” and “commons house of assembly” came into general use, showing that the legislature had become permanently divided into two houses. With this naturally went the changes just referred to in the organization of the council and in the right of initiative. Full authority was also given the governor in these instructions to erect county courts and appoint the officials who were necessary for them. Provision was also made for the multiplication of counties as the growth of population should necessitate.

Since Ludwell’s authority extended over Albemarle, as well as over the southern counties, he was empowered to summon representatives from them all to a general assembly. But if it should prove impossible for members to attend from Albemarle,—as was actually the case,—he was then authorized to summon seven delegates each from Berkeley and Colleton counties and six delegates from Craven county. By the settlement, since 1685, of Huguenot exiles on the Santee the population of South Carolina had expanded toward the north, and now it was possible to begin the organization of a third county. But as the Huguenots,

228

owing to the repeal of the act of Sothell’s parliament, had not yet been naturalized, the instruction empowering them to elect representatives occasioned an outcry against alien rule. The six Huguenots from Craven county took their seats, but the assembly proved to be no more subservient than its predecessors had been. It passed an act giving the suffrage to every man in the province who was worth £10, irrespective of the time during which he had been a resident. Though Ludwell accepted this, it, with an act providing for the drawing of jurymen, was disallowed by the proprietors. The assembly demanded an act of oblivion and a confirmation of the judicial proceedings of the late administration. But before that resolve reached them the proprietors had issued a general pardon for all concerned in the late disturbances, except James Moore and Robert Daniel, two of the leaders of the opposition in Berkeley county.¹

During the discussion over indemnity the assembly, in response to an instruction, presented a statement² of grievances which touched all the main points at issue between them and the proprietors. The most important complaints were directed against the claim of the proprietors to legislate for the province by fixing the jurisdiction of courts, putting in force through the palatine court in Carolina such English statutes as they saw fit to select, attempting to govern in general by martial law, prescribing the number of representatives in the assembly. The assembly complained of the existence of two palatine courts,—one in England and the other in Carolina,—for one often negatived acts which the other had approved. Other complaints were directed against the recent change in the form of land grants, and against several matters of detail. Though these complaints brought no specific or immediate acts of redress, yet the proprietors, both publicly and privately, began to admit that it would be necessary to govern according to the charter. But at the same time they yielded only so far as it was necessary so to do. They retained the agrarian laws intact. Also in a special instruction to Ludwell, accompanying the

229

disallowance of Sothell’s acts, they forbade¹ the publication as laws of acts making changes in courts, juries, officials, and elections until they had confirmed them in England. Ludwell made concessions to the popular demand respecting the form of deed which should be used in land grants. He also approved of an habeas corpus act, an act relating to juries, as well as the one lowering the qualifications for the suffrage. Because of their dissatisfaction with these acts, and particularly with the one last named, the proprietors removed Ludwell, after he had been in office about a year. But his successor, Thomas Smith, though one of the most prominent men among the proprietary party in the province, because of the revival of the controversy over the payment of quitrents, soon threw up the office in despair.

John Archdale, one of the proprietors, was then sent over for the purpose, if possible, of restoring harmony. The question of quitrents was then uppermost. By the new governor’s conciliatory attitude and the concessions which he was empowered to make in reference to land grants, he allayed strife and won considerable personal popularity. His successor, Joseph Blake, also enjoyed a quiet administration, which continued from 1694 till the close of 1700. During that time the final revision of the Fundamental Constitutions was submitted² to the commons in assembly for acceptance. The articles concerning manors, leet-men, the system of proprietors’ courts, and certain other features of the system had been omitted, though the provisions for a nobility remained. The whole was reduced to forty-two articles, and their acceptance without change was requested. But a committee of the assembly proposed several amendments, which were directed against the right of the nobility to sit in the legislature and the size of their baronies, while they were intended to secure to the people their lands at the existing rents and prices. These proposals caused the proprietors to again lay aside the Constitutions, and thereafter they never appeared as an issue in Carolina politics.³

230

The earliest phase of the conflict between the executive and the colonists in that province thus reached its close.

The civil list in South Carolina, as in the other provinces, comprised the secretary or register, the surveyor-general, the receiver and treasurer, sheriffs, and justices. These offices were held under appointment from the proprietors or from their governors. The officials acted under commissions and instructions substantially as in other provinces. As the bestowment of baronies was not followed by the establishment of manorial courts, and only in a few instances by settlement, local government long remained undeveloped.

Just after the religious controversy of the years 1704 to 1706 had closed, the lower house secured and held for a number of years the exclusive right of naming the treasurer or public receiver, also the comptroller of the duties, the powder receiver, and all other officials who received fixed salaries from the public treasury. Originally the treasurer or receiver of the province had been appointed by one or more of the proprietors under the articles in the Fundamental Constitutions which provided for a treasurer’s court.¹ But as early as 1691, and perhaps earlier, this official was named in the revenue acts.² In the act levying duties for 1703 George Logan was thus appointed, and, as the act was continued till 1707, he retained the office until that year. But since in the church controversy Logan had chosen the side of the dissenters, Governor Johnson resolved that he should give place to some one else. But the commons house, in which the dissenters now had the majority, insisted that he should be continued in office. To Johnson’s suggestion of Major Parris for the place, they replied by charging the governor with trying to abridge their just right of control over the public moneys. They also believed that such control would be much safer in their own hands than in those of governors, many of whom were “needy courtiers come

231

abroad to enrich themselves.” In the course of the long dispute which followed the assembly refused to submit the question to the proprietors, but expressed themselves as ready to lay it before the queen and parliament for final decision. To this the governor assented, agreeing also to admit for the time being that the assembly possessed the sole right to appoint the receiver, provided it would not appoint Logan or any one else who during the recent troubles had made himself personally obnoxious to the government. But the house would not abandon Logan, though later he voluntarily withdrew from the contest. Then the house prepared and hastily passed an act declaring its right for the time being to name the public receiver and the other officials to whom reference has been made.¹ This was accepted by the governor. Captain George Smith was then elected receiver, the house not even recognizing a proposal of the governor to approve the selection. The act remained in the hands of the proprietors till 1718, when it was repealed. But the repeal was disregarded, and by a law of 1720 the act was declared to be still in force. But in 1721 another act was passed, vesting again the right of appointing the receiver, comptroller, and other designated officials in the general assembly. This continued to be the law during the period of royal government, though the share borne by the commons in the selection of these officials was far greater than that exercised by the other components of the legislature.²

← Vol. II, Pt. III, Ch. VIII   Table of Contents   Vol. II, Pt. III, Ch. X →