USA > South Carolina > The history of South Carolina under the proprietary government, 1670-1719, V.1 > Part 20
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29
1 Hewatt's Hist. of So. Ca., vol. I. 116-117. 2 Ramsay's Hist. of So. Ca., vol. I, 200.
253
UNDER THE PROPRIETARY GOVERNMENT
time when Ramsay wrote, and for years after counsel were not allowed the accused in criminal trials. It was one of the anomalies of the English law against which Sir William Blackstone protested (1765),1 and which remained un- remedied until 1836.2 The charter had given the Proprie- tors power to make war upon "pirates and robbers" as public enemies : this did not confer upon them jurisdiction of piracies generally. Hewatt, the historian, has doubtless confused the incidents in regard to the pardon and indem- nity demanded by the people growing out of Colleton and Sothell's administrations with those relating to the pirates.
The charges against the colonists of Carolina in this mat- ter are no more consistent than just. They are accused on the one hand of enacting a jury law, by the provisions of which pirates might escape conviction ; and on the other of bringing over the English habeas corpus act to rescue any that the juries might convict, and this because the Governor would not pardon except so far as authorized by the Proprietors.3 This accusation involves the Proprietors in England as much as it does the colonists in Carolina ; for it implies that the judges and magistrates appointed by the Proprietors would protect the pirates if the juries did not, and discharge them on habeas corpus. The truth is, that neither the Proprietors nor their Governor had any jurisdiction over piracy on the high seas, and no power to discharge or pardon. Piracy is an offence against the law of nations, and by the common law of England, when com- mitted by a subject. a species of treason. and until the Statute 28 Henry VIII was cognizable only in the Courts of Admiralty.+ The Statute of Henry VIII had not yet
1 Blackstone's Com , vol. IV, 355.
2 Encyclopedia Britannica, title " Criminal Law," Edmund Robertson.
3 Hewatt's Hist. of So. Ca., vol. I, 116.
+ Blackstone's Com., vol. IV, 71.
. . .
254
HISTORY OF SOUTH CAROLINA
been made of force in the province. We shall see in a controversy over the succession to Governor Blake. in 1700, that it was maintained that the charter did not empower any officer of the Proprietors to try persons for acts com- mitted out of their dominion, and that hence a Royal com- mission was necessary to a judge in admiralty.1 .The government in England had, therefore, required the pas- sage of acts in the colonies providing commissions in admi- ralty ; and his Majesty on the 22d of January. 1687, had issued his proclamation of pardon to all who would come in and accept its terms.2 It was not, therefore, the Pro- prietors who granted the indemnity to these people. as Hewatt asserts, but King James. The government in England had required the passage of acts providing com- missions in admiralty, but as yet it had appointed no Vice Admiral or prosecuting officer.
Piracy, it is true, by international law is an offence against all nations and punishable by all ; and pirates may be pursued in any country where they may be found with- out regard to the question on whom or where the piratical offence has been committed.3 This we shall see to be the law announced by Chief Justice Trott in the famous case of Stede Bonnet in 1718, in a charge which is quoted by law writers as correctly laying down the rule.+ But sup- posing the courts of Carolina common law and admiralty to have been fully organized. could this feeble colony, struggling yet for its own existence, have been expected to take upon itself the yindication of the law of nations because pirates of the Red Sea happened to be shipwrecked on the coast of the province ? The criticism of the con-
1 Sep post.
: Public Records of So. Ca. (MISS.).
3 Kent's Com. (12thed. ), vol. IV. 180.
+ Phillimore on International Late, CCCLVI.
-
255
UNDER THE PROPRIETARY GOVERNMENT
duet of the Carolinians in this matter, it must be remem- bered, relates to the first thirty years of the colony ; there is no question of the vigor of their efforts against the pirates after that time. The colonists of Carolina have been held by historians to an accountability in the matter altogether unwarranted by the circumstances in which they stood. There is no reason to suppose that the jury law and habeas corpus act were at all connected with that subject.
As before observed, it was well known that the whole southern coast of America and the West India Islands were infested by pirates before any settlement was attempted in Carolina. The charters of the province refer to pirates and Indians as the enemies in particular with whom the colonists would have to contend. The relation of the early settlers was the same to one as to the other. They looked with dread upon both, and no doubt met the one and the other alike with conciliation or resistance as their necessities demanded or their circumstances war- ranted. It was not until 1687 that the British Govern- ment itself made any practical effort for the suppression of piracy. During the period of open war between Eng- land and Spain letters of marque and reprisal had been freely issued. nor was much inquiry made to ascertain whether the buccaneers and privateers had taken the trouble to obtain the authority of such commissions. Charles II. upon his restoration, ordered that every encour- agement and protection should be given these adventurers ; nor did his Majesty disdain himself to become a partner in the buccaneering business. One of the causes of the difference which existed between Clarendon and Lord Ashley, two of the Proprietors of Carolina, arose out of this matter. Clarendon was opposed to the employment of privateers. Once they were countenanced. he said,
256
HISTORY OF SOUTH CAROLINA
they brought unavoidable scandal and a curse upon the justest war. " A sail ! A sail ! " he declared, "is the word with them. Friend and Foe is the same. They possess all they can master, and run with it to any ob- scure place where they can sell it, and never attend the ceremony of an adjudication." But Ashley, on the other hand, having secured the appointment of Treasurer of Prize Money, encouraged his Majesty in their maintenance.1 Once the taste for such a life had been acquired and the profits of it experienced, it required more than a formal declaration of peace to dissolve these roving bands and put an end to their plunder. It is, indeed, related that King Charles himself continued to exact and receive a share of the booty even after he had publicly issued or- ders for the suppression of this species of hostility. As before mentioned. Henry Morgan, the most famous of the buccaneers. was knighted by his Majesty and made Deputy Governor of Jamaica, doubtless in a measure from the good understanding that prevailed between the King and himself in their copartnership.2 But little attention was paid. therefore, to his Majesty's orders when, during the nominal peace between Spain and England, he found it to his interest to avow his purpose by putting an end to piracy. Upon the accession of James, however, a more serious effort was made to this end. In August, 1687, a small fleet was dispatched under Sir Robert Holmes with a commission " for suppressing pirates in the West Indies." 3 A copy of this commission was sent to the Proprietors, with instructions for their cooperation. Pirates and sea- rovers coming unto any of the ports of the province were
Lite of Clarendon, Oxford. MDCCLIX, 212.
: Bryan Edwards's Hist. West Indies, vol. I, 169.
3 Changers's Pol. Ann. ; Carroll's Coll., vol. 11, 319; Hist. Sketches of So. Ca. (Rivers), 147.
257
UNDER THE PROPRIETARY GOVERNMENT
to be seized and imprisoned, and their ships' goods and plunder were to be taken and kept in custody until his Majesty's Royal pleasure should be known. These in- structions the Proprietors at once forwarded to the Gov- ernor, and washed their hands of all further responsibility. Sir Robert Holmes's commission, it may be observed in pass- ing, granted him for three years all the goods and chattels taken by him from pirates or privateers,1 rendering his service one scarcely less of plunder than that of the pirates themselves. Together also with the instructions for the suppression of piracy and copies of Sir Robert Holmes's commission, there was sent a notice that his Majesty had learned a wreck had been discovered near the coast of Hispaniola, from which a considerable quan- tity of silver and other treasures had been taken and carried into divers parts of his dominions in America, and warning the colonists not, indeed. to leave the wreck and its treasures to its owners, but that the King claimed one full moiety of all treasure and riches taken from the bottom of the sea as being by the ancient ordi- nances of admiralty due to his Majesty. Sir Robert was to have all the treasure he could capture from the pirate, and the King was to have his full share of all that could be found in wrecks. Under Sir Robert's commission his interest was certainly not to protect commerce and the colonies from the pirates, but rather to let the pirates get all the treasure they could, and then to retake the treasure from them and appropriate it to himself.
Just what assistance the Carolinians gave Holmes, ob- serves a writer upon this subject, is not known.2 But a more pertinent historical inquiry, perhaps, will be : what
1 Coll. Hist. Soc. of So. Ca., vol. I, 120.
" S. C. Hughson, Johns Hopkins Univ. Studies, 12th Series, V, VI, VII. 26.
258
HISTORY OF SOUTH CAROLINA
assistance did Sir Robert give to the Carolinians? The Proprietors extended to them the King's orders to seize all pirates who should enter their ports. But how was this to be done? Pirates are men of war; armed men, manning armed vessels. The scourge had been that, by means of their arms, they could descend upon and plunder not only merchant vessels but small peaceable communi- ties. Thus it was that Morgan had swept down upon and plundered Porto Bello and Panama, and carried off large treasures from them. Again we ask, were the Carolinians, surrounded as they were by hostile Indians, in danger of Spanish invasion, now also threatened by the French on the Mississippi, governed by a feeble board in England, who, while unable to afford them protection from any of these dangers, three thousand miles away, were harassing them in their government - were the Carolinians, in a state of civil turmoil, weakness, and danger, to incur the ani- mosity of new enemies and to invite the special attention of the pirates whom the British fleet under Holmes could not or would not suppress ? But suppose that in obedience to the instructions of the Lords Proprietors the colonists had valiantly determined to seize, prosecute, condemn, and execute all pirates who should venture upon their coast, where was the legal machinery provided for their doing so? A commission in admiralty has been authorized by the act passed in Colleton's time. But as yet there was no Vice Admiral, no Marshal, no Clerk ; no court organized for the purpose. While the Lords Proprietors were amus- ing themselves with the making of Landgraves and Ca- ciques, and bestowing upon them baronies and manors. for the practical business of administering justice, they had no Attorney General to prosecute, and but one person to sit in condemnation as Judge, and to exeente his own decree as Sheriff. The same person was to arrest and drag into
259
UNDER THE PROPRIETARY GOVERNMENT
his court the aceused : then to mount the bench and con- demn ; then to take the prisoner to his execution or to see at least that the stripes he had awarded were well laid on by some other criminal assigned by him to the task. It was in this condition of society that the colonists were called upon to enforce the laws against offences not committed against themselves. nor within the limits of their province. It was not until April 12, 1693, that the Proprietors author- ized the Governor to appoint some fitting person Attorney General for the prosecution of crimes. Nor does it appear that such a man was then to be found in the province. More than a year after. August 13. 1694, the Proprie- tors announced that they had appointed Ferdinando Gorges of the Inner Temple Attorney General of the province of Carolina ; I but the honor was not sufficient to induce that gentleman to come out, and it was not until nearly three years after that Nicholas Trott, the first Attorney General for South Carolina, was appointed.
Hewatt states that about the time of the passage of the habeas corpus act and the jury law by the Parliament of Carolina (1692), forty men arrived in a privateer called the Loyal Jamaica, who had been engaged in a course of piracy. and brought into the country treasures of Spanish gold and silver. These men, he says. were allowed to enter into recognizance for their peaceable and good be- havior for one year with securities, till the Governor should hear whether the Proprietor would grant them a general indemnity. At another time, he goes on to say, a vessel was shipwrecked on the coast, the crew of which openly and boldly confessed they had been on the Red Sea plundering the dominion of the Great Mogul.2 Hewatt does not give his authority for the statement in regard to
1 Coll. Hist. Sor. of So. Ca., vol. I, 186. 2 Hewatt's Hist. of So. Ca., vol. I, 115.
260
HISTORY OF SOUTH CAROLINA
the passengers of the Loyal Jamaica, but Dalcho, in his Church History, gives the names of twenty-one of them, among which are some of the most honored names in South Carolina.1 Fortunately, two books of miscellaneous records are preserved, one in the Secretary of State's office in Columbia, and the other in the Probate office in Charleston, which together explain the circumstances and refute Hewatt's allegation that these persons had been engaged in piracy. Some of them, it is true, had been engaged in a cruise as privateers under a commission from King William against the French. The story is probably based upon a letter of Edward Randolph, the collector of the King's customs in America, which we shall have oc- casion to quote a little later, in which the most reck- less charges were made against the colonists, not only in Carolina. but in every other province in America. In this letter of 1696, Randolph, complaining that Governor Blake was a favorer of illegal trade, states that, about three years before, seventy pirates, having run away with a vessel from Jamaica, came to Charles Town, bringing with them a vast quantity of gold from the Red Sea. That they were entertained and had liberty to stay or go to any other place : that the vessel was seized by the Governor for the Proprietors and sold.2 There is no record that the Loyal Jamaica was so seized. But in a fragment of the journal of the Grand Council found in Grant Book of 1672-94, in the Secretary of State's office in Columbia, to which we have alluded, there is a list of twenty-two persons who were required to enter into recognizances upon their arrival in that vessel, doubtless under the in- structions which were sent out with the copy of Sir Robert Holmes's commission, in order that the validity of her com- mission might be examined. This record gives the names
1 Ch. Hist., 15. 2 Coll. Hist. Soc. of So. Ca., vol. II, 196.
261
UNDER THE PROPRIETARY GOVERNMENT
of the persons, the amounts of their recognizances, which, except in the case of the captain, George Reiner, one Joshua Wilkes. and one James Gilchrist, were merely nominal, and gives also their sureties. Among these per- sons were Thomas Pinckney, Robert Fenwick, and Daniel Horry. The sureties for Thomas Pinckney were . Sir Nathaniel Johnson and Francis Noble, Gentleman ; for Rob- ert Fenwick, Sir Nathaniel Johnson and John Alexander ; for Daniel Horry. Isaac Massique (Mazyek ?) and Peter Girard. It is probable that all but the captain. Wilkes. and Gilchrist were merely passengers.1 In the Miscella- neous record book in the Probate office in Charles Town there are depositions of Honory Perry, Thomas Pinckney,
1 In Grant Book, Secretary of State's office, 1672-94, p. 78, we find this entry : "The under named persons arrived in this part of the Province the -- day of April Anno Domini 1692 in the shipp called the Loyal Jamaica commonly called the Privateer vessell. Each man entered into Recogni- zance with securities in the month of May 1692. In the sums to their names annexed for one year or until the government heard from England.
=
It
John Watkins 0.50
James Moore Esq Cap: Edmund Billinger 0 25
Richard Newton
0.50
Cap: George Dearsley Edward Rawlins 0.25
Roger Gosse 0.40
Maj Robert Daniel Charles Burnham . 0.20
Adam Richardson 0.50 Robert Gibbes Esq. William Beardesly 0 25
Edmund Mendlicotte 0 50
Cap: Charles Basden Peter Girrard 0.40
William Ballok 0 40
John Sullivan Edward Loughton 0.20
Christopher Linkley 0 40
Cap: Charles Basden William Smith 0 20
Thomas Pinckney
0.60 S. Nathaniel Johnson Kn: Francis Noble. Gen . 0.80
Cap: George Reiner
400 @ John Alexander William Smith 200
Joshua Wilkes 1006 John Alexander David Maybank 50
Robert Fenwicke
0 60 S. Nathaniel Johnson John Alexander 0 30
James Gilchrist
100 John Alexander. Andrew Baugh 50
Francis Blanchard
0.40 Peter La Salle John Thomas 0.20
Roger Clare 8 20 Charles Barslen. Henry Hillory 0.15
William Crosslye
Charles Barsden Henry Hillory 0.15
Daniel Horry 0 50 Isaac Majeigne Peter Girard . 0.25
Daniel Rawlinson 0.60
Nicholas Marden Francis Fidling 0 80
Robert Mathawy 0.60 Anthony Shory. Francis Fidling 0 20
William Walesley 0.60 William Williams John Lovell . 0 30
Richard Abrira 0.60 William Popell Nicholas Barlysom 0,30
John Palmer 0.40 Joseph Palmer John Guppel! 0 20
@ $ 8000.
5 $ 2000.
262
HISTORY OF SOUTH CAROLINA
Christopher Linkley, and Edmund Medlicott, taken before the Council on the 20th of August, 1692, in the case of a vessel claimed by Jonathan Amory, which probably ex- plains the matter. In these depositions they state that they had been on a cruise against the French under a commission from King William and Queen Mary, and had captured the vessel in question and taken her into Jamaica, where she was condemned and sold as a prize. This is doubtless the foundation of Randolph's story of pirates running away with a vessel from Jamaica, and bringing her into Charles Town, and also of Hewatt's story of the forty pirates which has been seized upon and amplified by other writers. Perry, Pinckney, Linkley, and Medli- cott, all young men under twenty-five years of age, had been engaged in an adventure under a Royal commission, as privateers in times of open and flagrant war between England and France. Privateers under a regular com- mission from William and Mary were very different from the piratical crew encouraged by Charles II. They were no more pirates than were the sailors of the allied fleet who about the same time burnt the French ships in the bays of Cherbourg and La Hogue.
Poe's charming romance of the Gold Bug, in which the scene of the search for Kidd's buried treasure is laid upon Sullivan's Island, has given currency to the idea that Kidd at some time visited Charles Town, and it has been said that a number of his crew were in Carolina.1 But the authority referred to does not, we think, bear out the suggestion. Two affidavits are found in the old book of miscellaneous records in Probate office, Charleston, just referred to, made by two mariners -one of New York - then in this province, to the effect that they knew one Samuel Bradley, who appears to have been charged
1 The Caroling Pirates and, Colonial Commerce (Hughson), 46.
263
UNDER THE PROPRIETARY GOVERNMENT
with being one of Kidd's men. They depose that they had been passengers on board the ship Adventure, Kidd. commander, in a voyage from Madagascar to the Island of St. Thomas, and had seen Bradley on the ship in a weak and sickly condition, taking no part with the piratical crew. but, on the contrary, continually protesting against their course ; for which he was ultimately put ashore on a rock on the Island of Antigua. There was probably no port on the coast of America -and, for that matter, in Europe - then, in which mariners who at some time had been engaged in piracies could not be found. pardoned or unpardoned. So, too, the place of Kidd's hidden treasure is variously located all along the Atlantic and Gulf coasts.
Sothell had wisely attempted to incorporate the French into the political body of the colony, and to facilitate them in the settlement of the hitherto unoccupied lands on the Santee; but Ludwell pursued a reactionary course in re- gard to these people. The Grand Council, on June 21, 1692, in issuing an order for the better observance of the Lord's Day by prohibiting the haunting of punch houses during the time of divine service, further ordered " that the French ministers and officers of their church be advised that they begin their divine service at 9 o'clock in the morning and about 2 in the afternoon of which they are to take due notice and pay obedience thereunto." The Huguenots complained to the Proprietors of the threats made their estates and marriages, whereupon the Proprie- tors wrote to the Governor and Council on April 10, 1693:1_
" The French have complained to us that they are threatened to have their estates taken from their children after their death because they are aliens. Now many of them have bought the land they enjoy of us, and if their estates are forfeited they escheat to us, and
1 Hist. Sketches of So. Ca. (Rivers), 176 ; Appendix, 437.
264
HISTORY OF SOUTH CAROLINA
God forbid that we should [take] the advantage of the forfeiture, nor do we so intend and therefore have sent our declaration under our hands and seals to that purpose which we will shall be registered in the Secretary's and Registrar's Office, that it may remain upon record in Carolina, and be obliging to our heirs successors and assigns. They also complain that they are required to begin their Divine wor- shipp at the same time that the English doe, which is inconvenient to them in regard that severall of their congregations living out of Towne are forced to come and go by water, & for the convenience of such they begin their Divine Worshipp earlier or later as the tide serves, in which we would have them not molested. They Complain also that they are told the marriages made by their ministers are not lawfull because they are not ordained by some bishop and their chil- dren that are begotten are bastards. Wee have power by our patent to grant liberty of Conscience in Carolina. And it is granted by an act of Parliament here, and persons are married in the Dutch & French churches by ministers that were never ordained and yett we have not heard that the children begotten in such marriages are reputed un- lawful or bastards and this seems to us opposite to that liberty of conscience their Majesties have consented to here, and we pursuant to the power Granted us have Granted in Carolina. Wee desire these things may be remedied and that their Complaints of all kinds be heard with favor and that they have equal Justice with English- men and enjoy the same privileges ; it being for their Majesties service to have as many of them as we can in Carolina. Wee would have them receive all manner of just encouragement whatsoever," etc.
Ludwell was no more successful in his government than his predecessors. In attempting to appease both the Pro- prietors and the colonists, he satisfied neither. The Pro- prietors had abandoned the Fundamental Constitutions in name, but by their instructions they strictly retained their agrarian regulations and surrendered no power claimed for themselves. To gratify the leaders of the people in a measure, however, ampler provisions were made for grant- ing them lands by the Governor, and the legislative privi- leges of the Assembly were defined and extended in cases in which the publie peace and welfare required enactments, provided they did not " diminish or alter any powers granted
265
UNDER THE PROPRIETARY GOVERNMENT
to the Proprietors." It is evident that while Ludwell had refused the demands of the Assembly in the matter of the indemnity, he had lost the confidence of the Proprietors. " We are glad to hear that you gain on both parties," they wrote. "and approve of your design to open their eyes. Avoid the snare Colleton fell into, who was popular- at first; but the Goose-Creek men fearing the loss of their power offered him an excise for his support, and in return made him turn out seal deputies and disoblige others to please them: yet afterward called out against his avarice whereby he lost the opinion of the people. We hear they are playing the same game with you by offering a gift of a thousand pounds. James Moore is at the head of this faction. And in return you had an act of indemnity which you had not the power to grant. . . . We observe you say the Goose-Creek men are resolved to oppose all we shall offer; therefore they ought not to be employed. You say Sir Nathaniel has hopes for himself, were the government changed to the king. This cannot be from William, because he quitted the Leeward Islands on account of refusing to take the new oaths. Watch his ac- tions." 1 The Governor was thus distrusted by both parties.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.