USA > North Carolina > History of North Carolina: The Colonial and Revolutionary Periods 1584 1783, Volume I > Part 4
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man of winning manners and commanding intellect, had been one of the twelve Parliamentary commissioners who went to Holland to invite Charles to return to England to ascend the throne of his ancestors. Sir George Carteret, while gov- ernor of the island of Jersey, had defended his post against the Parliamentary forces in a most gallant manner and had surrendered at last only at the command of Charles himself. The last in the list, Sir John Colleton, had been a valiant sol- dier for the king in whose service he expended a large fortune. Upon the downfall of the royal cause, he emigrated to Barba- dos and for a time kept that colony loyal to the Stuarts.
If a monarch was ever justified in using crown lands to reward the services of his friends, Charles II was surely jus- tified in rewarding these men. Not to have done so would have entitled him to first rank among the world's ingrates. To them he owed everything-the assurance of his personal safety, the restoration of his House to its ancient dignity, and the recovery of his throne. If subjects were ever justi- fied in accepting gifts from their sovereign, the Lords Proprie- tors of Carolina were surely justified in accepting them from Charles Stuart. At great risk to their lives, their fortunes, and their honor, they had rendered him inestimable services. He was an exile, and they restored him to his country ; he was a beggar, and they made him a king. What they had done for him was an incomparably greater personal service than any similar service Sir Walter Raleigh ever rendered Queen Elizabeth. Yet among the historians of North Carolina there are those who acclaim Elizabeth's gift of this same re- gion to her ambitious subject, and his acceptance of it, as acts of profound statesmanship and genuine patriotism but who condemn utterly the "careless generosity" of Charles and the "rapacity" of his "parasites."1 To such an extent do our prejudices often confound our judgment !
The names of the Lords Proprietors, and of the king, are all found today on the map of the Carolinas. In North Carolina are Albemarle Sound and Craven and Carteret counties; in South Carolina, Clarendon and Colleton counties, Berkeley Parish, and the Ashley and Cooper rivers. The name of the two states commemorates the royal grantor. The assertion is often made, it is true, that their name originated in honor of Charles IX of France, but the facts do not sustain this contention. In 1562, Ribaut
1 Hawks: History of North Carolina, Vol. I, pp. 28, 234; Vol. II, p. 74.
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founded a Huguenot colony near the present site of Port Royal, South Carolina, which he called Charles-fort. A year later the settlement was abandoned. In 1564, Laudonniere founded another Huguenot colony on St. John's River in Florida and called it Fort Caroline. This colony was de- stroyed by the Spaniards. Both Charles-fort and Fort Caro- line were named in honor of Charles IX, but these names were applied to the forts only; for the region immediately around Fort Caroline, the French used the Spanish name, Florida, while the entire region from the southern extremit. of Florida to the fiftieth degree, north latitude, they called "New France." The name "Carolina" is not found on any of the early French maps. This name was first applied to the whole region in the charter of 1629 to Sir Robert Heath in honor of Charles I, and was retained in the charter of 1663 in honor of Charles II. Writing in 1666, the Lords Proprietors state that "Carolina is a fair and spacious province on the continent of North America, so called in honor of his sacred majesty that now is, Charles the Second, whom God preserve."
In adopting the proprietary form of government for the new colony, Charles followed the precedents set by Elizabeth in her charter to Raleigh and by Charles I in his charter to Heath. The model was the County Palatine of Durham. This interesting experiment dated back to the reign of William the Conqueror. For the better security of his kingdom against his hostile neighbors on the north, William erected along the Scottish border the great County Palatine of Dur- ham over which he placed an executive upon whom he con- ferred many of the powers and attributes of sovereignty. The palatine exercised the feudal privileges of escheats, for- feitures, and wardship, and had possession of mines, forests, and chases. Within his palatinate, he was supreme in both civil and military affairs. He erected courts and appointed all justices and judges. Writs and indictments ran in his name just as in other counties they ran in the king's name, and offenses were said to be committed against his peace and dig- nity just as elsewhere they were against the peace and dig- nity of the king. He exercised admiralty jurisdiction over his coasts and rivers. He could pardon murders, treason, and other felonies. He had his own mint and coined his own money. He raised, equipped, and directed his military forces. He could incorporate towns and cities. Although the amount of revenue to be paid by the palatinate to the Crown was fixed by Parliament, the palatine and his officers determined how it should be raised and collected. Thus while
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the Durham Palatinate was a constituent part of the king- dom, in actual administration it had a distinct machinery of its own. In order that no great feudal family might be founded to inherit these viceregal powers, William wisely conferred them upon the Bishop of Durham.
Such was the model to which Charles II turned when he came to erect the province of Carolina. In his charter, he declared that the Lords Proprietors should have, exercise, and enjoy all their "rights, jurisdictions, privileges, prerog -. atives, royalties, liberties, immunities, and franchises," "as amply, fully, and in as ample manner as any Bishop of Dur- ham, in our Kingdom of England." The object of the Lords Proprietors was to plant colonies within their grant from which of course they anticipated large financial returns; their motives were declared to be "a laudable and pious zeal for the propagation of the Christian faith" and the enlarge- ment of the king's empire. To enable them to carry out these objects effectively, "full power and authority" was given them to create and fill offices; to erect counties and other political divisions for administrative purposes; to in- corporate ports of entry, towns and cities; to establish courts of justice for the punishment of offenses even to the extent of "member and life"; to commute punishment and pardon offenses ; to collect customs, fees and taxes levied by the Gen- eral Assembly; to have the advowsons of churches; to grant titles of honor provided they were not the same as those in use in England; to raise and maintain a militia, and to com- mission officers, build forts, put down and punish rebellion, declare martial law, and wage war against the Indians or other enemies by land or by sea. While these extensive pow- ers were granted to the Lords Proprietors, great care was exercised to preserve the rights and privileges of the people. Laws were to be enacted "by and with the advice, assent an l approbation of the freemen, or of their delegates or deputies" who were to be assembled from time to time for that purpose. All laws were to be "consonant to reason" and as near as possible in harmony with the laws of England. The colonists were to be liege subjects of the English Crown and were to enjoy all "liberties, franchises, and privileges" of the king's subjects resident within his realm of England. They were to have the right to carry on trade and commerce, and no customs were to be laid upon their goods except such as were "reasonably assessed * by and with the con- sent of the free people, or the greater part of them." They could not be compelled to answer to any suit, or tried for any
Reverse
SEAL OF THE LORDS PROPRIETORS OF CAROLINA
Obverse
CAROLIN
SARIHOLTAS
SALIKOG
ANONIMO
GNYM
JE JE
SIGILLY
VM
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crime in any place beyond the bounds of the province, but they were allowed an appeal to the Crown. Liberty of con- science was guaranteed.
Though the Lords Proprietors derived from their charter ample powers of government, the uncertainty with which they exercised them resulted in weakness and confusion. Plan after plan was promulgated, ordered to be put into execu- tion, and then abandoned for some new scheme. In 1663 they sent to Sir William Berkeley instructions for the establish- ment of a government in Albemarle, but two years later this plan gave way to a more elaborate scheme called the Conces- sions of 1665. The Concessions in their turn were supplanted in 1669 by the Fundamental Constitutions drawn by John Locke under the directions of Shaftesbury, but along with the order to put them into effect came instructions modify- ing their provisions. Adopted and signed by the Lords Pro- prietors July. 21, 1669, and declared to be unalterable and perpetual, the Fundamental Constitutions speedily ran through four revisions and were finally abandoned alto- gether. The Lords Proprietors continued this sort of tinker- ing with their government for some years, with the result that "for the first fifty years of the life of the colony," as Doctor Bassett justly remarks, "the inhabitants could not be sure that their government was stable." 2
The government of Carolina during the proprietary peri- od presents a theoretical as well as a practical side. The former found expression in the Fundamental Constitutions in which the Lords Proprietors embodied their ideal of a colonial government.3 Their purposes were to secure a stronger government, to establish their own interests with equality and without confusion, to set up a government in harmony with monarchy, and to "avoid erecting a numer- ous democracy." For the accomplishment of these aims they devised with endless details an elaborate and complicated scheme of government semi-feudal in character, and an arti-
2 Bassett, John Spencer: The Constitutional Beginnings of North Carolina, p. 35 (Johns Hopkins University Studies, 12th Series, No. III).
3 The Fundamental Constitutions have been so often and so fully analysed and discussed that I do not feel it necessary to present such an analysis here. The reader who wishes fuller information is re- ferred to the following: Bassett. J. S .: The Constitutional Begin- nings of North Carolina (J. H. U. Studies. 12th Series. No. III) ; Ashe, S. A. : History of North Carolina. Vol. I, Ch. IX ; Davis, Junius : Locke's Fundamental Constitutions (N. C. Booklet, Vol. VII, No. 1).
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ficial arrangement of society based upon an equally artificial division of land. No pains were taken to fit the constitution to the needs or the interests of the people. To say this, however, is not to condemn the Fundamental Constitutions unreservedly for they contain many liberal and enlightened provisions. Among them are the requirements for the regis- tration of births, marriages, and deaths; the registration of land titles; a biennial parliament; the right of trial by jury; and perfect toleration of all forms of Christian worship. In- deed, to quote Doctor Bassett, "Their reactionary features were hardly worse than their generation, and their liberal fea- tures were much better than their time." The Lords Proprie- tors were fully conscious of the impracticability of putting them into full operation at once and contented themselves, therefore, with instructing Governor Carteret "to come as nigh it" as possible.
The practical side of the constitution is found in the gov- ernment as it really developed. This of course grew out of the actual needs and experience of the people. The first adminis- tration was organized in accordance with the plan set forth in the instructions to Governor Berkeley of 1663. "Full pow- er and ample authority" were conferred upon him to appoint a governor and six "fitting persons" as councillors. The gov- ernor and his councillors were authorized to appoint all other officials both civil and military, except the secretary and the surveyor whom the Lords Proprietors themselves were to select; and together with the freeholders, or their representa- tives, were to form the General Assembly with power to make "good and wholesome laws" for the colony. The instructions also contained specific directions concerning the granting of land.
Two years later the instructions of 1663 were superseded by the Concessions of 1665. In this plan the Lords Propri- etors reserved to themselves the selection of the governor, the register, the secretary, and the surveyor-general. With the governor was to be associated a Council composed of any even number from six to twelve to be selected by the governor. The legislative branch of the government, the powers of which were limited only by the veto of the Lords Proprietors, was to be composed of the governor and Council and twelve repre- sentatives chosen by the freemen; all were to sit together as a single body. Such courts as were necessary were to be pro- vided by the General Assembly but all judicial officials were to be appointed by the governor. Land was to be granted upon terms which, to say the least, were not illiberal. Per-
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sonal and property rights were secured by ample guarantees ; and special provision was made for securing to the people the right of petition to the Lords Proprietors touching any griev- ance they might have against any colonial official.
Under this plan, the Lords Proprietors contemplated organizing within their grant several separate and distinct governments, or counties. Each was to have its own adminis- tration, but all were to be organized on the same basis. Three only of these counties were actually organized. They were: (1) Albemarle, which embraced the territory lying north of Albemarle Sound; (2) Clarendon, which embraced the region about the mouth of Cape Fear River; and (3) Craven, which embraced the territory south of Cape Romaine. Of these coun- ties, Clarendon was soon abandoned and Craven lay wholly
SEAL OF THE GOVERNMENT OF ALBEMARLE
without the region that subsequently became North Carolina; it developed into the province of South Carolina. Albemarle was the parent settlement of North Carolina and alone of the three concerns us.
As the county of Albemarle expanded into the province of North Carolina, so the constitution of North Carolina as a proprietary was an evolution from the plan of government actually established in Albemarle. At its head were the Lords Proprietors each of whom held one of the eight great offices created by the Fundamental Constitutions, viz: palatine, ad- miral, chamberlain, chancellor, high constable, chief justice, high steward, and treasurer. Corresponding to each of these offices was to be a court, presided over by the official whose name it bore, with supreme jurisdiction of such matters as fell within the sphere of that official's duties. As the Lords Pro- prietors remained in England, each was represented in Caro- lina by a deputy. Their first organization under this plan was effected in October, 1669, when the Duke of Albemarle became
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the first palatine. Although the other great offices were also filled and a show was made of keeping them up, they never exercised their functions and were nothing more than names. The palatine, however, who was always the eldest of the Lords Proprietors, really became an active factor in the government. He presided over the meetings of the Lords Proprietors and with three others constituted a quorum; his court, consisting of himself and the other Lords Proprietors, was the only one of the eight great courts ever organized and exercised many important functions; while his deputy, sometimes called the vice-palatine, was governor of the province.
The governor and his Council were the executive authority within the colony. It is important to remember that through- out the colonial period, the governor was never the represen- tative of the people, but during the proprietary period he rep- resented the Lords Proprietors, during the royal period, the king. In all important matters his conduct was determined by instructions from his superiors, and in any conflict between them and the people it was his duty to promote the interests of the former rather than of the latter. He was the medium through which the Lords Proprietors communicated their wishes and commands, and he was required to keep them fully informed about colonial affairs. In most of his important functions he could act only by and with the advice and consent of his Council, but as the councillors were generally his crea- tures this limitation on his power was more apparent than real. He called and presided over the meetings of the Council. With the advice and consent of the Council, he issued writs for the election of delegates to the General Assembly, and he con- vened, prorogued, or dissolved the Assembly at will. No law could be passed without his concurrence. He could reprieve persons convicted of crime pending an appeal to the Lords Proprietors. Acting with the Council, he appointed subordi- nate judicial and administrative officials; administered to the higher officials the proper oaths of office and allegiance ; issued and revoked military commissions; and suspended, or other- wise punished public officials, civil, military, or religious, who violated their trust. Upon order of the Council, he issued war- rants for land grants. All business between his government and other colonies was conducted through him. He was com- mander-in-chief of the militia and was charged with the duty of enforcing the laws, preserving order, and protecting the colony from domestic and foreign enemies. From time to time, he exercised numerous minor functions such as receiv- ing the probate of wills, granting letters of administration,
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taking the census, and the like. The tenure of office, except in the case of William Drummond who was appointed for three years, was during the pleasure of the Lords Proprietors. Be- sides certain fees the governor received a salary paid by the Lords Proprietors out of funds arising from quit-rents and the sale of land. During a vacancy in the office, the govern- ment was administered by the president of the Council.
The course of the development of the province may be traced in the wording of the commissions of the Lords Pro- prietors to their governors. In 1664 Sir John Yeamans was commissioned "Governor of our county of Clarendon" and William Drummond was appointed to the "Government of the County of Albemarle." Both of these counties, or govern- ments, were within the territorial limits of what is now North Carolina. Although the settlement within Clarendon County was soon abandoned, the Lords Proprietors adhered for sev- eral years to their original plan of erecting a number of sepa- rate and distinct governments within their province. With the exception of Thomas Eastchurch, the first five successors of Drummond were governors of Albemarle only. The case of Eastchurch is particularly interesting on this point. Two commissions bearing the same date were issued to him, one as "governor and Commander in Cheife of that part of our Province called Albemarle," the other as "Governor and Commander in Cheife of all such settlements as shall be made upon the Rivers of Pamleco and Newse." At that time, 1676, it was the purpose of the Lords Proprietors to crect the re- gion between Albemarle Sound and Cape Fear River into a government separate and distinct from Albemarle. The last "Governor of our County of Albemarle" was Scth Sothel whose commission was issued in 1679. Two years later ap- pears the first indication of a change in the policy of the Lords Proprietors. In 1681 Henry Wilkinson was appointed "Gov- ernor of that part of the Province of Carolina that lyes 5 miles south of the River of Pamlico and from thence to Vir- ginia." But Wilkinson never came to North Carolina and the government was administered by Sothel until 1689.4
In the meantime it had become customary to refer to that part of the "Province of Carolina" north of Cape Fear River as North Carolina, that to the south, as South Carolina. The effect of this natural division on the policy of the Lords Pro- prietors is seen in the commission of Phillip Ludwell, 1689, who was "appointed to be Governor of that part of Carolina
4 Andrews, Charles MacLean :
"Captain Henry Wilkinson" (South Atlantic Quarterly, XV-3).
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that lyes North and East of Cape Feare." Two years later the Lords Proprietors, again changing their policy, deter- mined to have but one administration which should embrace the whole of Carolina. Accordingly in 1691 they commis- sioned Ludwell "Governor and Commander in Cheif of Caro- lina," but fearing that this arrangement might prove imprac- ticable, they authorized him to appoint a "Deputy Governor of North Carolina." Ludwell's successor, John Archdale, was commissioned in 1694 "Governor of our whole Province of Carolina," with authority "to constitute a Deputy or Dep- uty Governors both in South & North Carolina." The Lords Proprietors adhered to this policy until 1712, conferring like authority upon each of their governors during those years. As the governors resided at Charleston, they chose to admin- ister the affairs of South Carolina in person, and those of North Carolina through deputies. This fact had import- ant results in the history of North Carolina. It tended to diminish the dignity and influence of the executive branch of the proprietary government and correspondingly to increase the influence and authority of the legislative branch. The re- sult was detrimental to the interests of the Lords Proprietors and favorable to the development of democratic ideals. Ac- cordingly, in 1710, the Lords Proprietors resolved to abandon the experiment and to appoint a governor of North Carolina "independent of the governor of South Carolina" who should be their immediate representative and responsible immedi- ately to them. This decision was carried into effect in 1712 when Edward Hyde was commissioned "to be Gov" Capt Gen11 Adm11 Command' in Cheife of that part of ye province of Car- olina that lyes Nº & Et of Cape ffeare Called Nº Carolina." Hyde's appointment marks the final separation in the gov- ernment of the two provinces, and thenceforward the gover- nors of North Carolina were again selected by the Lords Pro- prietors and held office at their pleasure.
The governor was assisted in the administration by a Coun- cil. The organization of the Council, and the method of se- lecting its members, varied with the varying moods of the Lords Proprietors. In 1663 they directed Governor Berkeley to select a Council of six. Two years later they fixed its mem- bership at any even number from six to twelve, inclusive, to be determined by the governor. In 1670, probably with the idea of making the Council more representative of the varied colonial interests, they changed the number to ten, five of whom were to be their own deputies selected by themselves
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and five to be selected by the General Assembly. This plan was continued until 1691 when, the Council having become an upper house of the General Assembly, the Lords Proprietors instructed the governor to consider the deputies alone as members. At the same time it was determined that each of the Lords Proprietors should be represented in the province by a deputy. Finally in 1724 the deputies were abolished and the Council was organized with twelve members selected by the Lords Proprietors. The functions of the Council were two-fold, executive and legislative. Together with the gov- ernor it composed the executive branch of the government and was charged with many important duties ; independently of the governor its executive functions were inconsiderable. Upon the death or absence of the governor, the Council chose a president who administered the government until the va- cancy was filled.
The Council also formed part of the legislative branch of the government. Prior to 1691, the legislature, usually called the General Assembly but sometimes referred to as the Grand Assembly, was composed of the governor, the councillors, and the delegates of the people sitting together as one body. After that date the Council became an upper house, and the delegates a lower house called the House of Commons. This develop- ment was the result not of design but of custom, and came about in a thoroughly characteristic English way. As acts of the Assembly were not valid until signed by the governor and three deputies, it became the custom of the governor and deputies to meet independently of the Assembly to consider such measures as the Assembly presented for their signa- tures. Thus the deputies, probably feeling that it was un- necessary for them to pass twice on the same matters, gradu- ally dropped out of the larger body and after a while came to be thought of as a separate and distinct legislative chamber. The Lords Proprietors formally recognized them as such in 1691. At the same time the five councillors elected by the As- sembly were dropped from the Council leaving that body com- posed of the deputies only.
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