USA > South Carolina > A sketch of the history of South Carolina to the close of the proprietary government by the revolution of 1719. With an appendix containing many valuable records hitherto unpublished > Part 6
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It was however reserved to the proprietors, or their appointed magistrates, when any sudden occasion would prevent the calling of the Assembly, to pro- claim ordinances for preserving the peace or for the better governing of the people, provided such ordi- nances were in accordance with the laws of England, and did not affect the freehold or other property of the people.
It was granted to the proprietors to build towns and cities and form manors-to erect forts and other fortifications-to make war, and have complete mili- tary power in all respects as a general of an army
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has; and to suppress rebellions and establish martial law in the province.
The province of Carolina was to be distinct from all other provinces, and its inhabitants were to be liege subjects directly to the king, and could not be compelled to answer in any court out of the province except in the courts of England. The charter" offered particular encouragements to all who would settle in the province. The permission of transport- ing themselves and families was accompanied with the royal assurance of their protection as still a part of the English people, and of their right still to claim and enjoy all the privileges of British subjects.
To them also was given the freedom of commerce to and from the ports of England, without distinction as colonists ; and to export free of duty all tools and implements necessary to the cultivation and improve- ment of the land, and for seven years to import freely into England such agricultural productions as at that time were supposed likely to become the most valua- ble productions of the new province.
The proprietors were to establish such sea-ports as they pleased, and to have for themselves the revenues arising from the customs and duties; but these were to be assessed by the proprietors " by and with the con- sent of the free people, or the greater part of them."
The lands in the province which should be pur- chased or otherwise obtained from the proprietors, were to be held as the absolute property of those who should obtain them. The proprietors could them- selves dispose of all their share in the province.
The proprietors had power to confer, within the
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In
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province, marks of distinction and titles of honor, provided they were not the same as those conferred in England.
But the most important encouragement offered to the settlers was the religious freedom to dissenters from the Established Church of England. The charter conferred upon the proprietors the power of. granting, in such manner and with such restrictions as to them might seem fit, indulgence and freedom in matters of re- ligion, "and that no such person or persons, unto whom such liberty shall be given, shall be any way molested, punished, disquieted, or called in question for any difference in opinion or practice in matters of religious concernment, who do not actually disturb the civil peace of the province, county, or colony that they shall make their abode in; but all and every such person and persons may, from time to time and at all times, freely and quietly have and enjoy his or their judgment and consciences in matters of religion throughout all the said province or colony, they behaving peaceably, and not using this liberty to licentiousness, nor to the civil injury or outward dis- turbance of others."
At this time in England the dominion of the Pres- byterian party had just been superceded by that of the Episcopalians; and the injuries the latter had received, produced, as is natural, a spirit of intoler- ance against all dissenters and non-conformists. By the former party the use of the Book of Common Prayer had been forbidden, even in private houses ; and thousands of Episcopal clergymen had been driven from their benefices, and subjected to insult 7*
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and injury. The House of Commons in 1661, on the other hand, began the retaliation, by resolving to expel from among themselves all who would not take the sacrament according to the form of the Church of England. Episcopal ordination was de- clared necessary for preferment to the livings of the church ; and in consequence several thousand minis- ters, in one day, were obliged to leave their benefices. These and other extreme measures were enacted, that show how little harmony existed between the relig- ious parties at the period of the Restoration.
Of the eight proprietors of Carolina, all but the Earl of Shaftesbury were advocates of episcopacy. It may appear remarkable that in the charter, the civil rights granted to the colonists are secured to them by the king independently of the proprietors, while religious freedom was left subject to their will and restriction. , But their liberal interpretation of this clause of their charter will be manifest in the unrestricted toleration of all sects, which they ordained in the body of laws or frame of government afterward prepared for their colonists in Carolina ; a toleration the more to be admired when we consider the spirit of prosecution which still warmly existed in all denominations of Christians in the mother country .**
But if we compare the charters of Connecticut [1662] and Rhode Island [July, 1663] with that of our own colony [March, 1663] it will be evident
* The charter " had an overplus power to grant liberty of conscience, although at home was a hot persecuting time." (Archdale's Descript. of Carol.) See also Case of Dissenters, in Appendix.
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that the self-interest of Clarendon and his associates denied to Carolina many civil privileges, which it would not have seemed strange at that time to grant. The colonists of Connecticut elected all their officers without interference, made their own laws without the concurrence or veto of the king, and administered justice without appeals to the English courts. In Carolina, on the contrary, the governor and all superior officers were appointed by a body of noble- men separated from the colonists by the breadth of the Atlantic ocean, all laws were subject to the negative of the same noblemen, and appeals were allowed to the courts of England. The charter of Rhode Island constituted so pure a democracy, that it has been cherished as a system of republican government till our own days. Under that of Carolina, on the other hand, so pure an aristocracy was contemplated that the preamble of the subsequent "unalterable laws" of 1669, avowed the object of the proprietors to be an avoidance of a "numerous democracy." Even the proprietary charter of Maryland [1632], which is said to have been the model of that of our colony, was more liberal to the civil and religious equality of the settlers, and also secured to them an untram- meled participation in framing their own laws. In preparing the proprietary charter of Carolina, the royal power appears not to have been so much respected, nor the welfare and freedom of the settlers so much regarded, as the pecuniary advantages and political importance of the lords proprietors then- selves, which we will endeavor to show in the follow- ing chapter.
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CHAPTER IV.
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The Proprietors dissatisfied with the results of their Colonial Policy- Treaty between England and Spain-A more perfect form of Govern- ment designed for the whole Province-The Fundamental Constitu- tions-The Founding of a New Colony to be governed by these Con- stitutions-The Settlement directed to be made at Port Royal-Wm. Sayle appointed first Governor-Jos. West commander of the fleet- Instructions to Sayle, West, and other Officers-Arrival at Port Royal-Leave Port Royal and settle on Ashley River-Old Charles Town-Death of Sayle.
THE beautiful and commodious harbor of Port Royal, which had excited the admiration of Spanish and French voyagers, became also the chosen spot for the first English settlement in Carolina. The colony in Albemarle had been begun by immigrants from Virginia before the proprietors obtained their charter ; and its vicinity to the government of Sir William Berkley prompted the immediate extension of the proprietary authority over the settlers. But the hearts of the proprietors were fixed on Port Royal. In 1664, they dispatched to Barbadoes the ship John & Thomas, with arms and ammunition to be sold to all who desired to undertake, on liberal offers, a settlement at Port Royal. But the inhabit- ants of Barbadoes who wished to remove to Carolina, had in August, 1663, sent out commissioners in the Adventure, to explore the coast; and it was, no doubt, on account of the relation which they gave of the hostile disposition of the Indians, and the pres- ence of Spaniards at Port Royal, and on account of their representation of the advantages of Cape Fear
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River, that Major John Yeamans and his associates selected the latter place. Their choice was acceded to by the proprietors whose principal aim was to gain settlers for any part of their vast territory.# Yet soon after Yeamans was made governor of Clarendon county at Cape Fear, and the region extending thence to the southernmost limit of Carolina, it was declared that his commission should not be a hin- drance to the appointment of another governor "in the proposed settlement to the south of Cape Romania,"+ which was near the mouth of the Santee, and soon obtained the name of Cape Carteret, in compliment to one of the proprietors.
The third colony which it was now determined to form, was destined also for Port Royal; and it was the design of the proprietors to establish there, upon a constitutional basis, a system of government, com- mensurate with the magnitude of their dominion, and the high powers which they derived from their charter.
Six years had passed since they had been made the absolute lords of Carolina, and they had reason to be dissatisfied with the results of their efforts to colonize the country. At Chowan and Cape Fear, the increase of population and the development of the productiveness of the land had been retarded by the selection of unfavorable situations. Instead of the realization of sudden wealth, the colonists were contented if they gained the comforts of life from raising cattle, cultivating an untried soil, (chiefly
* Hilton's Relation.
MS. from papers in London.
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with tobacco,) or felling the forests for the exporta- tion of lumber. The proprietors did not, merely from motives of benevolence, concede extensive privileges and contribute their private means for the advance- ment of the colony. They had hoped for a large remuneration in a few years. But the profits of the little commerce that had begun in Albemarle and Clarendon, were reaped by the active shipowners of New England; and there remained only the rents of land to reimburse the heavy expenditure of the pro- prietors. Yet when the first payments became due, disturbances arose, the quit-rents were remitted, and for the sake of peace the settlers were further in- dulged with such changes in the terms of their lands as they themselves desired.
In the mean time, the treaty [1667] between Eng- land and Spain, acknowledging the claims of the English possessions in America, was calculated to encourage the proprietors in their contemplated set- tlement at Port Royal; to the accomplishment of which they now directed their earnest efforts. Wil- liam Sayle had lately returned from a voyage among the isles along the coast of Florida," and the proprie- tors, as we have noticed, solicited and obtained the addition of the Bahama group to their former grant. About this time, their previous indefinite policy with respect to their colonies became more settled under the influence of the Earl of Shaftesbury, ; to whom,
* See Appendix, Ext. Winthrop's New Engl.
t The Earl of Clarendon, who lived in exile, took no active part in the affairs of the colony. The same remark may apply to the aged Duke of Albemarle, who, though elected in Oct., 1669, the first palatine, survived but a few months. Sir Jno. Colleton was dead. His brother had become proprietor in his stead.
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it is believed, was committed the preparation of the plan for founding the new colony. The distin- guished abilities of Locke, the friend of Shaftesbury, were engaged in this important task, and the celebrat- ed " Fundamental Constitutions," which he framed, were solemnly adopted by the proprietors in July, 1669 .*
The peculiar system of government designed by this constitution, will be seen in a brief view of some of its provisions.
One of the proprietors was chosen palatine or gov- ernor, with regal authority within the province. At his death, the oldest of the remaining proprietors should be his successor.
An hereditary nobility was created, consisting, besides the eight lords proprietors, of two orders, namely landgraves and caciques. Their dignity was supported by grants of large estates, and secured by making these estates forever inseparable from the titles and privileges of the respective orders.
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The province was divided into counties; each county into eight seignories, which should belong to the eight lords proprietors; eight baronies, which should belong to the provincial nobility ; and four precincts, each containing six colonies, which were reserved for the people.
Each seignory, barony, and colony contained 12,000 acres, which made each county 480,000 acres, or
* Locke also composed, at the request of Shaftesbury, a treatise on the Growth and Culture of Vines and Olives, the Production of Silk, &c. See his works. That Locke wrote the Constitutions is proved by the proprietors calling them "the excellent system of Locke." See Appen- dix. Lett. to Ludwell, 1693.
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750 square miles. Of this land, the eight proprie- tors would have 96,000 acres; and as there were to be as many landgraves as counties, and twice as many caciques, each landgrave's share was ap- pointed to be four baronies, or 48,000 acres, and each cacique's share, two baronies, or 24,000 acres. There were left three-fifths of each county, or 288,000 acres, for the people.
These proportions of land and of the provincial nobles, were to be invariably preserved as an increase of counties should be made in the province. The effects of this arrangement might be seen from the mode of establishing the parliament. "There shall be a parliament consisting of the proprietors, or their deputies, the landgraves and caciques, and one free- holder out of every precinct to be chosen by the free- holders of the said precinct respectively. They shall sit all together in one room, and have, every mem- ber, one vote."
The landgraves and caciques were created by the lords proprietors ; and consequently the parliament, composed in this manner, would have given a major- ity to the aristocracy until nine counties should have been formed, when the representatives of the people would have obtained a majority of one vote. But this would have been of no avail to the democratic element of the government, since the proprietors themselves had a vote on all laws passed by the Provincial Parliament. In carying out this system, other provisions were included in the fundamental laws, resuscitated, perhaps, from the times of King Alfred, but unsuited to the usages of the colonists,
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and discordant with their notions of personal free- dom. Any lord of a seignory or barony was per- mitted to lease, for a term of years, a part of his estate; and if it were in one piece, containing between 3,000 or 12,000 acres, it might constitute a manor, by grant of the palatine's court. The lord of each seignory, barony, or manor, could try his leetmen or vassals, in all civil and criminal cases, without appeal, except by previous. registered agreement. Nor could " any leetman or leetwoman have liberty to go off from the land of their particu- lar lord and live anywhere else, without license obtained from his said lord, under hand and seal."
In framing also the higher judicial tribunals, the wisdom of the legislator did not overlook the impar- tial administration of justice ; but the power and interests of the proprietors and nobles were made pre- eminent, and their position and honors, perhaps, too much exalted above the people. There were eight superior courts, the palatine's, chancellor's, chief jus- tice's, constable's, admiral's, treasurer's, high steward's, and chamberlain's; and besides these, county courts and precinct courts. Among the officers of the supreme courts, were vice-chancellors, recorders, jus- tices of the bench, masters, marshals, lieutenant-gen- crals, consuls, proconsuls, under-treasurers, auditors, comptrollers, surveyors, vice-chamberlains, and pro- vosts.
The chief executive authority was in a grand council, which had power to determine controversies between the proprietors' courts, arising from conflict- ing jurisdictions and methods of proceeding-to make
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peace and war-to conclude treaties with the Indian tribes-to issue general orders for raising, directing, or disbanding the forces by sea or land-and to dis- pose by their orders on the treasury of all money granted by acts of the parliament.
Whatever matters were proposed in parliament must first have been proposed and passed by the grand council. While the parliament was biennial, (and could be dissolved by the governor with the con sent of any three deputies,) on the other hand, the grand council met monthly, and oftener if necessary. It was to consist of the palatine and seven proprie- tors, or their deputies, and the forty-two councilors of the proprietors' courts; and these were so chosen as to give a preponderance of power and influence to the proprietors and their nobles.
Fifteen clauses of the Fundamental Constitutions relate to religion. The most peculiar of these enact that every person above seventeen years of age should, under penalty of forfeiting the benefit and protection of law, be a member of some church or profession, and of only one at a time; that no one should hold an estate, or even dwell within the province, who did not acknowledge a God, and that he is publicly and solemnly to be worshiped ; but this was not to exclude Jews, or heathens, provided seven or more of them agreeing in their persuasion, should form a church and adopt a name to distinguish themselves from others. "No person whatsoever shall disturb, molest, or persecute another for his speculative opinions in religion, or his way of wor- ship."
-*- V.
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It is worthy of notice also, that no law passed by the parliament could become permanently of force unless ratified by the seals and signatures of the pa- latine himself and three more of the lords proprie- tors ; that no commentaries should be made on the laws or any part of the Fundamental Constitutions ; that all laws should expire, without a repeal, at the end of every sixty years ; that juries should render their verdicts by a majority of the twelve; that no one should plead another's cause till he had taken an oath in open court that he did not plead for money or reward ; that every freeman should "have abso- lute power and authority over his negro slaves ;" that the owners of land, upon any title or grant what- soever, should, after 1689, pay to the proprietors an annual rent of a penny an acre ; that any alien could become naturalized by subscribing the Fundamental Constitutions ; and that no one in the province should be considered a citizen, who did not after seventeen years of age subscribe the same and promise to defend and maintain them to the utmost of his power.
Such was the grand model and favorite plan of government, -which, the proprietors said in their preamble, we have agreed " to be perpetually estab- lished amongst us, unto which we do oblige ourselves, our heirs and successors in the most binding ways that can be devised ;" and which they also very truly stated to be for "establishing the interest of the lords proprietors with cquality and without confusion, and that the government of this province may be made most agreeable unto the monarchy under
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which we live, and of which this province is a part, and that we may avoid erecting a numerous democracy."
At the time of the adoption of these Fundamental Constitutions, the officers to conduct the expedition to Port Royal, and to govern the colony, had been already chosen, and their commissions and instruc- tions prepared.
The commission of Gov. Sayle [July 26, 1669] conferred upon him the executive power, restricted by the advice and consent of a majority of the council. The acts of the governor and council were also to be conformable to the instructions annexed to the commission, and to the Fundamental Constitu- tions and form of government transmitted at the same time, engrossed on parchment and under the hands and seals of the proprietors.
If Governor Sayle should leave the province, he was empowered, with the approbation of a majority of the council, to appoint a deputy governor with the same powers that had been conferred upon him- self. Or in case of Gov. Sayle's death, or departure without the nomination of a deputy, then the coun- cil should appoint a governor to act until the pleasure of the lords proprietors could be made known. In a new settlement many things were necessarily left to the discretion of the governor. But as the inter- ests of the proprietors were most affected in the dis- posal of land, it was strictly enjoined that grants of land should be issued by the governor only with the consent of a majority of the ten councilors, that is of six, three of whom should be deputies of the proprietors.
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The instructions referred to in this commission, state that as "the number of people which will at first be set down at Port Royal, will be so small, together with want of landgraves and caciques, that it will not be possible to put our grand model of gov- ernment in practice at first, and that notwithstanding we may come as nigh the aforesaid model as is prac- ticable-First, as soon as you arrive at Port Royal, you are to summon all the freemen that are in the colony, and require them to elect five persons, who being joined to the five deputed by the respective proprietors, are to be your council, with whose advice and consent, or at least six of them, all being sum- moned, you are to govern according to the limitation and instructions following, observing what can at present be put in practice of our Fundamental Constitutions and form of government. Secondly : You are to cause all the persons so chosen to swear allegiance to our sovereign lord the king, and sub- scribe fidelity and submission to the proprietors and the form of government by them established. But in case any man for religion's sake be not free to swear, then shall he subscribe the same in a book for that use provided, which shall be deemed the same with swearing."
Gov. Sayle was further instructed to select, with the aid of council, a suitable spot on which to build a fort, under the protection of which the first town should be placed. In this fort their stores of all sorts should be kept. If the town should be built on an island, the whole island should be for the people; if on the main land, the adjacent lands should be for
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the people, in order that they might at first dwell near each other. But no lands for the people, the proprietors, or nobility, were to be taken within two miles and a half of any Indian town (if on the same side of a river), as it was hoped that the Indians would be induced to become a part of the colony.
With the consent of council, the governor should establish " such courts and so many" as should for the time be necessary for the administration of justice, till the "grand model of government" could be put in execution.
The governor was instructed " to summon the free- holders of the colony and require them in our names to elect twenty persons, which, together with our deputies, for the present are to be your parliament, by and with whose consent, or the major part of them, you are to make such laws as you shall from time to time find necessary; which laws being ratified by you, and any three of our five deputies, shall be in force as in that case provided in the twelfth and other articles of our Fundamental Constitutions and form of government."*
To induce speedy immigration, all free persons above sixteen years of age that should come to settle in the colony before the 25th March, 1670, should have 150 acres of land for himself, and 150 more for every able man servant he should bring with him,
* The power granted by Charles II. to the eight proprietors, "who again, by common consent, centered that power in four of them, viz. : in a palatine of their own election, and three more, who were em- powered to execute the whole powers of the charter, and is called a pala- tine's court, their deputies in Carolina executing the same, as from their principals they are directed."-Archdale's Descript. of Car.
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