USA > South Carolina > The history of South Carolina under the proprietary government, 1670-1719, V.1 > Part 5
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In 1630 a grant was made by King Charles I to Robert Heath of all the territory known as Carolina ; but no colony was established under it. The first English colony
1 Hon. William A. Courtenay. In Memoriam, Daniel Ravenel. See also Coll. Hist. So. Ca., vol. I, 199, 200.
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planted in what is now South Carolina was that sent out under the charters of 1663-65 of Charles II.
The Spaniards claimed Florida, the northern limits of which were undefined, and Menendez. who had destroyed Fort Caroline and massacred its garrison, had in 1665 laid the foundation of St. Augustine and built the fort of San Mateo, which was so long to be a thorn in the side of the Carolina colonists.
As Rivers observes. notwithstanding the favorable de- scription which Verrazzano had given of our climate and country, and Ribault's account of the beautiful and com- modious harbor of Port Royal. a prejudice had arisen in favor of the more northern situations. But the success and prosperity of the colonies already established had awakened great interest in the mother country, and the vast and unexplored territory known as Carolina lying between Virginia admittedly under the domain of Great Britain. and Florida equally recognized as belonging to Spain. with its undefined boundaries, could not be allowed by his Majesty the King of England to remain unclaimed and unoccupied. So in the second year after the restoration. Charles II readily granted to some of his adherents and courtiers to whom he was indebted for dis- tinguished services. and who claimed to be excited "with a laudable and pious zeul for the propagation of the Chris- tian Faith and the Enlargement of our Empire and Domin- ions," a charter with extensive powers, for all the region lying south of Virginia extending from 31° to 36° north latitude, and westward within these parallels across the Continent, which was to be called Carolina. as it was now said, in honor of his Majesty, the said Charles Il of England.
CHAPTER II
EUROPEAN governments claimed their several posses- sions in America by right of discovery, by occupancy, by conquest. and by treaties with the Indians. It was deemed a sufficient ground for a king, upon which to base a claim. that a subject had sailed along a coast, and perhaps landed a boat's crew and proclaimed possession. and this to warrant the grant of lands beyond the shore, the nature and extent of which were entirely unknown. A foothold once obtained, dominion was asserted by occupancy over so much at least as the number of the colony enabled them securely to hold. Then followed in some instances so- called treaties - bargains by which for a few trinkets the natives were held to have ceded whatever right in the soil they may have had; or else upon some pretext of wrong, war was declared, the natives driven away or slaughtered. and title claimed by right of conquest.
England claimed her possessions as conquered or ceded territory, in which it was held that the King might make, alter, and change the law at will ; and that the common law therefore had no allowance or authority in them, they being no part of the mother country, but distinct though dependent dominions. They were subject, however. to the control of the Parliament. though not bound by any act unless particularly named.1
Blackstone's Com., vol. I, 108; Jacob's Lane Dictionary, title "Plantation." vol. V, 100. See the discussion of the doctrine in the V. S. Senate by Calhoun and Webster on the proposition to establish territorial government in New Mexico and California, February 24, 1849.
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The governments of the English Plantations or Colo- nies in America were of three sorts.
1. Royal or Provincial establishments, the constitution of which depended on the respective commissions issued by the crown to the governors and the instructions which usually accompanied their commissions; under the author- ity of which provincial assemblies were constituted with the power of making local ordinances not repugnant to the laws of England.
2. Proprietary governments, granted out by the crown to individuals in the nature of feudatory principalities with all the inferior regalities and subordinate power of legislation which formerly belonged to the owners of counties palatine ; yet still with these express conditions. that the ends for which the grant was made be substan- tially pursued and that nothing be attempted which might derogate from the sovereignty of the mother country.
3. Charter governments. in the nature of civil corpora- tions with the power of making by-laws for their own interior regulation not contrary to the laws of England ; and with such rights and authorities as are specially given them in their several charters of incorporation.1
This is the order in which Blackstone stated the three forms of colonial government of England; but chrono- logically the reverse is the order in which they were established. In June, 1579. Queen Elizabeth issued letters patent to Sir Humphrey Gilbert, authorizing him to dis- cover, occupy, and possess such remote "heathen lands not actually possessed of any Christian prince or people as should seem good to him or them "; but although he disposed of his patrimony and all he possessed in fitting out a fleet to avail himself of this gracious permission of his Queen, the enterprise failed. The first step in the 1 Blackstone's Com., vol. I, 107-109.
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work of English colonization of America was the grant. six years after the permission given to Gilbert, to his half- brother. Sir Walter Raleigh. This grant was in the nature of a charter. It gave to him
"and to his heires and assigns for euer free libertie and licence from time to time and all times for euer hereafter to discouer, search finde ont and view such remote heathen and barbarous lands countreis and territories not actually possessed of any Christian Prince nor inhabited by Christian people," ect.
The people in those remote lands he was given power and authority to correct, punish, pardon, govern, and rule,
" according to such statutes, lawes, and ordinaces as shall bee by him the saide Walter Raleigh his heires and assignes and euery or any of them deuised or established for the better governement of the said people as aforesaid."
Then follows a proviso which in some form is found in all the subsequent charters : -
"So always as the said statutes lawes and ordinance may be as neere as conveniently may be agreeable to the forme of the lawes statutes government or policie of England and also so as they be not against the true Christian faith nowe professed in the Church of Eng- land, nor in any wise to withdrawe any of the subjects or people of those landes or places from the allegiance of vs our heires and suc- cessours as their immediate soueraigue vnder God." 1
Under this charter Sir Walter Raleigh dispatched five fleets in succession in the years 1585 to 1587. and planted three small colonies on the coast of what is now North Carolina, which disappeared one after the other and left no trace.
No permanent English settlement was effected in what now constitutes the United States till the reign of James I. In 1606 a charter was given by the monarch
1 Charters and Constitutions - The United States ( Poore), 2 vol., 1379- 1381.
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to Thomas Gates and his associates, certain knights, gentlemen, merchants, and other adventurers. who were to divide themselves into two several colonies. Those from the city of London were to begin their plantations at some convenient place on the coast of Virginia: those from the cities of Bristol and Exeter and the town of Plymouth. at some convenient place on the coast of New England.1 Under the charter the dominion of Virginia was founded in 1607. and the New England colonies in 1620. That of Virginia and those of the New England colonies subsequently established were the charter gov- ernments mentioned by Blackstone, -civil corporations with power of making laws for their own interior regula- tions subject to the restriction of the charters.
The first British colonies in America were thus estab- lished under charter governments. Then followed a series of Proprietary grants. The first of these was of the Island of Barbadoes, which was granted to the Earl of Marlborough by James I, -a grant which was, how- ever, disregarded by his successor, Charles I, who, upon ascending the throne, granted to the Earl of Carlisle a charter of all the Caribbee Islands, including in the enumeration of them that of Barbadoes. This celebrated charter, which formed the precedent of all the Proprietary charters afterwards issued, was dated 2d of June, 1629.2
The next Proprietary charter was that by the same monarch in 1030 of Carolina or Carolana to Sir Robert Heath. This grant covered all the region lying south of Virginia, extending from 31º to 36° of north latitude and westward within these parallels across the Continent
1 Charters and Constitutions - The United States (Poure). 2 vol., 1888.
2 Edward's Hist. of West Indies, 1, 328 ; Pover's Hist. Barbadoes. 6-11.
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from ocean to ocean.1 Dr. Daniel Coxe of New Jersey, who claimed this patent through various assignments, and who wrote in 1721 a description of the territory claimed under the grant, observes that " Carolana and Carolina are two distinct tho' bordering Provinces, the east of Carolana joyning to the west of Carolina." The former, he states. " was granted by Patent unto Sir Robert Heath in the Beginning of the reign of King Charles I which said Sir Robert was the attorney general. and by him convey'd to the Earl of Arundel from whom it came by mean conveyances unto the present Proprietary."2 This admission by Coxe, who was claiming under the Heath grant that the eastern boundary of Carolana was the western boundary of Carolina, was induced doubtless to avoid conflict with the colonies established under the subsequent grants of 1663 and 1665, which covered the same territory. and under which the Proprietors had then occupied and held for fifty years. The grant to Heath, however. distinctly ran to " the ocean on the East." The claims to the province of "Carolana" continued to be prosecuted. but limited in this way to the country west of the settled portion of Carolina, and embracing the Mississippi. Upon the issue of the first charter of Caro- lina by Charles II the Heath patent was by order of coun- cil, August 12. 1663, declared void because of failure to
1 Colonial Records of No. Ca .. vol. I, 6; Hist. Sketches of So. Ca. (Rivers). 64.
2 A Description of the English Province of Carolann, by Daniel Coxe, 1721. For abstract of title see Colonial Records of No. Ca., vol. I. 519.
Hawks's Hist. of No. Co., vol. 1, 70. Dr. Daniel Coxe was physician to the queen of Charles IT, and also to Queen Anne. He was the ancestor of Tench Coxe of Philadelphia, the statesman and economist, sometimes called the father of the growth of American cotton. Dr. Coxe was also the principal proprietor of West Jersey. "The Southern States," De Bows' Review.
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fulfil its conditions, there having been under it but a few feeble and unsuccessful attempts at colonization.1 Then followed the grant of the charter of Maryland to Lord Baltimore, June 20, 1632 :2 and of Maine to -Sir Ferdinando Gorges, April 3. 1639.3
There were no charters granted during the existence of the Commonwealth in England. Upon the Restoration, Charles II rewarded his supporters. the Earl of Clarendon. the Duke of Albemarle. Lord Craven, Lord Berkeley. Lord Ashley, Sir George Carteret, Sir William Berkeley, and Sir John Colleton, by a patent dated March 24. 1663. granting them the province of Carolina.+ The next year he issued a patent to his brother, the Duke of York, after- wards James II. giving him the province of Maine and all the lands and rivers from the west of the Connecticut River to the east side of Delaware Bay. i.e. the States of New York and New Jersey ; 5 and immediately dispatched a fleet to wrest those lands from the Dutch. who had pos- sessed them under the name of the New Netherlands. Later. i.e. in 1681. the province of Pennsylvania was granted to William Penn, and so named in honor of Ad- miral Penn, his father, whose advances of money and services were thus requited.6
1 Chalmers's Pol. Ann. : Carroll's Collections, vol. II, 278: Hist. Sketches of So. Ca. (Rivers), 64. The King and Council declared Heath's charter void; but as it had not been legally so adjudged, Coxe's descendants obtained a recognition of their rights from the Board of Trade. and received from the Crown in 1768, in lieu of their claim to Carolina. 100,000 acres of land in the interior of New York. See Government of the Colony of So. Ca. (Whitney) ; Johns Hopkins University Studies. 13 series. 1-11, 24.
2 Charters and Constitutions- The United States : Poore), vol. I, 811.
3 Ibil .. 774.
4 Ii,id., vol. II. 1322 ; Statutes of So. Ca., vol. 1, 22.
5 Charters and Constitutions, vol. 1, 783.
6 Ibid., 1509.
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As Virginia was the first instance of a charter govern- ment, so it was the first of a Royal government. The charter of the famous London Company having been de- clared forfeited by the Court of King's Bench upon a writ of quo warranto in 1624, a Royal government was set up in its stead. The Island of Jamaica had been taken by the British from the Spaniards during Cromwell's rule. Upon the Restoration, Charles II, to conciliate the affec- tions of the colonists whose valor had annexed so impor- tant an appendage to his dominions, appointed as Governor of the island General D'Oyley, to whose exertions the possession of Jamaica was chiefly owing, His commission was dated 13 February, 1061. By his instructions he was to release the island from military subordination. to erect courts of judicature, and with the advice of a council, to be elected by the inhabitants, to pass laws suitable to the exigencies of the colony.1
The establishment of a Royal government in Jamaica was hailed as a blessing by the people of that island; but far otherwise was it regarded when, in 1663, such a gov- ernment was set up in Barbadoes. As this event was not without considerable influence upon the colony of Caro- lina, we shall have occasion to relate somewhat in detail the circumstances which brought it about. For the pres- ent it is sufficient to observe that at the time of the founding of the province of Carolina the three existing Provincial or Royal governments were those of Virginia. Jamaica. and Barbadoes.
The Proprietary charter of Maryland is usually referred to as the model of that of Carolina; 2 but both of these. as well as that of the patent of Charles I to the Earl of
1 Edwards's Hist. of West hvlies, vol. 1. 171.
" Chalmers's Pol. Ann .; Carroll, 251; Hist. Sketches of So. Ca. (Rivers), 79.
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Carlisle for the Caribbee Islands, are based upon that of Sir Robert Heath of Carolana ; which in its turn followed. but enlarged upon. that of the Earl of Marlborough and that of Sir Walter Raleigh. This last, the patent- to Raleigh, which was the first of all the charters, we recol- lect authorized and empowered Raleigh, his heirs and assigns, to govern and rule by such statutes, laws, and ordinances as he should devise, provided always that such statutes, laws. and ordinances should be as near as con- veniently might be agreeable to the laws of England. Sir Robert was empowered in his government to do like- wise, but very important additions and restrictions were made to the terms of his grant, and these were followed in all subsequent patents.
" Whereas," declared his Majesty, "our beloved and faithfull subject and servant Sir Robert Heath, Knight, our attorney Generall, kindled with a certaine laudable and pious desire as well of enlarging the Christian religion as our Empire & encreasing the Trade & Com- merce of this our kingdom." etc., " we have therefore granted to Sir Robert the territory described: And furthermore the patronages and advowsons of all churches which shall happen to be built hereafter in the said Region Territory & Isles and limitts by the increase of the religion & worship of Christ. Together with all & singular these & these soe amply Rights Jurisdictions privileges prerogatives Royaltyes libertyes immunityes with Royal rights & franchises whatsoever as well by sea as by land within that Region Territory Isles & limitts aforesaid To have exercise use & enjoy in like man- ner as any Bishop of Durham within the Bpriche or County Palatine of Durham in our kingdome of England ever heretofore had held used or enjoyed or of right ought or could have hold use or enjoy. And by these presents we make create & constitute the same Sr Rob- ert Heath his heires & assignes true and absolute Lords & Proprietors of the Region & Territory aforesaid & all other the premises for us our leires & successors saveing alwaies the faith & Allegiance due to us our heires & successors," etc.1
1 Colonial Records of Vo. Ca., vol. 1, 5.
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The province granted was thus constituted a County Palatine with Sir Robert Heath. his heirs and assigns, as Lords Proprietors. To understand, therefore. the nature of this grant. we must go back to the County Palatine in England. They were three of these, - Chester. Durham and Lancaster. Counties Palatine are so called. a palatio.1 says Blackstone, because the owners thereof, the Earl of Chester. the Bishop of Durham, and the Duke of Lancas- ter, had in these counties jura regalia as fully as the King hath in his palace regalem potestatem in omnibus as Brac- ton expresses it. They might pardon treasons. murders, and felonies, they appointed all judges and justices of the peace, all writs and indictments ran in their names as in other counties in the King's name, and all offences were said to be done against their peace, and not, as in other places, contra pacem domini regis. These palatine privi- leges were in all probability, observes this author. origi- nally granted to the counties of Chester and Durham because they bordered upon inimical countries, Wales and Scotland. in order that the inhabitants having justice administered at home might not be obliged to go out of the county and leave it open to the enemy's incursions ; and that the owners being encouraged by so large an authority might be the more watchful in its defence.2
Of the three. the County of Durham was the only pala- tine remaining when King Charles made his grant to Sir Robert Heath -and upon that model was the proposed government of Carolana. It was to be a viceregal one. But other important qualifications were prescribed.
1 The term " Palatine." from Comes Puliti, count of the palace, is a title formerly given to some great dignitary of the Royal household. It thus bemamy the title of a governor of some local district with the authority and privileges of Vice Royalty ; in England the County of Daurbem is a County l'alatine. 1 Statutes, 42.
" Blackstone's Com., vol. 1, 117.
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Raleigh had been empowered to make such statutes, laws, and ordinances as he deemed best; Heath's power was encumbered with a proviso. His laws must receive the assent of the people. He was empowered
"to forme, make, & enact, & publish ... what lawes souer may concerne the publicke state of the said province or the private profitt of all according to the wholesome directions of & with the counsell assent & approbation of the Freeholders of the same Province or the Major part of them who when & as often as need shall require shall by the aforesaid S Robert Heath his Heires & Assignes & in that forme which to him or them shall seem best, be called together to make Jawes & those to be for all men within the said Province," ect.1
To this, however, was added another proviso found also in subsequent charters, which enabled the Proprietors upon emergencies to dispense with the advice of the freemen.
" And because in the government of soe great a Province sudden chances many times happen to which it will be necessary to apply a remedy before that the Freeholders of the sayd province can be called together to make lawes, neither will it be convenient upon a continued title in an emergent occassion to gather together soe great a people therefore." Sir Robert and his heirs and assigns it was declared, "shall & may have power from time to time to make & constitute wholesome and convenient Ordinances within the Province aforesaid . . . which Ordinances we will that they be inviolably observed within the sayd Province under the paines expressed in them, soe as the sayd Ordinances be consonant to Reason & not repugnant nor contrary but (as conveniently may be done) consonant to the laws, statutes. & rights of our Realme of England as is aforesaid soe alsoe that the same Ordinances extend not themselves against the right or interest of any person or persons og to distravue, bind or burden in or upon his freehold goods or chattels or to be received anywhere than in the same Province or the Istes aforesay'd." 2
There was also this peculiar provision which was fol- lowed in the charters of Maryland and Carolina: ---
1 Colonial Records of No. Ca., vol. 1, 8. 2 Ibid., vol. 1. 8, 9.
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" Furthermore least the way to Honours & Dignityes may seem to be shutt & altogether barr'd up to men honestly borne & are willing to undertake this present expedition & are desirous in soe remote and far distant a Region to deserve well of us & of our kingdomes in peace & warre for that doe for ourselves our heires & successors give full & free power to the forsayd Sr. Robert Heath. Knight, his heires & assigned to confere favours, graces & honours upon those well desert- ing citizens that inhabit within the forsayd province & the same with whatever titles & dignityes (provided they be not the same as are now used in England) to adorne at his pleasure," 1 etc.
With these precedents before him, Charles II proceeded to reward the friends who had stood by him in his adver- sity. It is well to recall who these were.
The Earl of Clarendon had been his companion and counsellor, in exile, and after Cromwell's death had mate- rially contributed to the reestablishment of the monarchy. His daughter was subsequently married to the Duke of York, afterwards James II. and their children Mary and Anne became Queens of England. The history of this great man is too well known to need any extended notice here.
George. Duke of Albemarle. Master of the Horse, and Captain General of the Forces, was the famous General George Monk. No single person deserved more the title of the Restorer of the King, than he. His history is also well known.
William. Earl Craven, was an elderly man who had been distinguished in love and war thirty years before. who had led the forlorn hope at Crentznach with such courage that he had been patted on the shoulder by the great Gustavus, and who was believed to have won from a thousand rivals the heart of the unfortunate Queen of Bohemia.2 He had been elevated to the peerage by Charles I, and having afterwards during the civil wars
1 Colonial Records of No. Ca., vol. I. 11.
2 Macaulay's Hist. of England. IV. 42.
. . . ..
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zealously and ably espoused the Royal cause, had been, upon the Restoration, created Earl.1 For twenty odd years more, he was to serve the Stuarts and to be last to stand by that family. He was to survive all the other grantees.
John. Lord Berkeley, like Craven. had long been in the service of the Royal family. He had been knighted in 1638, by Charles I, and upon the breaking out of the rebellion. had been one of those very good officers (as Lord Clarendon calls them) who were ordered to form an army in the west. In the King's service he had achieved great successes. He had stood so high in the estimation of the Queen. that her Majesty had selected the city of Exeter under his protection as the birthplace of the Princess Henrietta Maria ; and had especially recom- mended "Jack Berkeley" to the favor of her Royal husband. He had been employed in the endeavor to negotiate terms for the unfortunate Charles. During the Commonwealth. Sir John remained in exile with the Royal family. Upon the restoration of the monarchy his Lordship was sworn of the Privy Council.2
Anthony Ashley Cooper, Lord Ashley (after whom the Cooper and Ashley rivers have been named), had been particularly recommended to Charles II by General Monk. as a person well fitted to be one of his council. Although regarded as a politician who had espoused the cause of monarchy, then of the Parliament, and then of monarchy. as it suited his ambition. vet he long retained the favor and confidence of the King, and by his distin- guished abilities became Chancellor of England, and was made Earl of Shaftesbury. He was again to forfeit the Royal confidence, and to die in exile. He was the con- stant friend and patron of the philosopher Locke, to whom 1 Burke's Peerage. 2 Ibid.
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