USA > South Carolina > The history of South Carolina under the proprietary government, 1670-1719, V.1 > Part 8
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for but a good store of English inhabitants. He gave to the sound his own name, but it has not retained it.
Returning to his vessel, on the 7th of July Sandford took in some fresh water, proposing that night to leave Port Royal and return homeward, the discovery he had made exceeding all his own and he was confident would answer all other expectations. He purposed also to spend some days in viewing the country of Kiawha, the Indian of that nation remaining still with him for the purpose of guiding him thither.
A little before night the Cacique of Port Royal came aboard, bringing with him his sister's son. He inquired of Sandford when he would return, and pointing to the moon asked whether he would come within three times of her completing her orb. Sandford told him no; but in ten months. He seemed troubled at the length of time and begged him to come back in five. Sandford insisted upon the first number he had given. This being settled, the Cacique gave Sandford the young fellow to take with him, telling him he must clothe him and bring him back when he returned. Then he asked Sandford when he would sail, and when informed that he would do so that night, he importuned him to stay till the next day, that he might prepare him some venison.
Sandford was much pleased with this adventure and with the offer of the Cacique to let his nephew go with him, he leaving an Englishman in his room, for the mutual learning of their language. This he could do, for one of his company, Mr. Henry Woodward, a surgeon. had proposed to stay with the Indians for the purpose. Sandford determined, therefore, to wait until the next morning. to see if the Indians would remain constant to their purpose. Then taking Woodward and the young man with him, in the presence of all the Indians of the
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place and of the fellow's relations, he asked if they ap- proved of his going with him. They all with one voice consented. He then delivered Woodward to the Cacique in the sight and hearing of the whole town, telling them that when he returned he would require him at their hands. They received Woodward with expressions of great joy and thankfulness. The Cacique placed him by himself on the throne and then led him forth and showed him a large field of maize, which he told him should be his ; then brought him the sister of the young man who was going with Sandford, to tend and dress his victuals and to take care of him so that her brother might be better used by the white men. Sandford, after staying a while. being wondrous civilly treated after the manner of the Indians, and giving Woodward formal possession of the whole country to hold for the Lords Proprietors. returned aboard and immediately weighed anchor and set sail.
The morning of the 10th of July Sandford found himself before the river that led into the country of Kiawha in the present Charleston harbor, but the Indian of the place, who had remained with him all the while solely for the purpose of piloting him into the harbor, mistook the entrance, and Sandford under his direction had stood away some two leagues before the pilot saw his mistake. It was now too late, for the wind was so that he could not fetch the river again and even if the weather had been fair could not enter it before night; but the appearance of the heavens forbade his lying that night upon the coast. The river he described as lying between Harry Haven (Edisto) and Cape St. Romana, and found seven or eight fathoms of water very near the shore and not the least ap- pearance of shoals or dangers in any part of it. It showed a very fair large opening, elear of any flats barring the
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entrance - only before the eastern point he saw a beach, but which did not extend far out. He persuaded himself that it led to an excellent country, both from the com- mendation the Indian gave it and from what he had seen at Edisto. Wherefore, in hopes that it might prove worthy the dignity. he called the river Ashley, from the Right Hon. Lord Ashley, and to take away, he says, every vestige of foreign title, he blotted out the name of St. Romano and called the cape. Cape Carteret. in honor of Sir George Carteret, a Proprietor of Carolina.
On the 12th of July. about noon, Sandford and his company entered Charles River, the Cape Fear. and landed. to the great rejoicing of their friends, who received not, he says, their persons more gratefully than the favorable report they brought with them of the country they had seen and examined, in which they found ample room for many thousands secured from any danger of massacre with such accommodation, to boot, as scarce any place can parallel. in a clime perfectly temperate, and where the soil cannot fail to yield so great a variety of production as will give an absolute self-sustenance to the place without foreign dependence and also furnish a trade to the king- dom of England as great as that she has with all her neighbors, "and." he concluded, "under our Sovereign Lord the King within his owne Dominions and the Lands possessed by his Naturall English subjects universall Mon- arch of the Traffique and comodity of the whole world."
Chalmers in his Politied Annals 1 asserts that Sir John Yeamans remained with the Barbadian colony on the Cape Fear and ruled them with the affection of a father, rather than with the authority of a Governor, and thus insured a seven years' peace to the attempted colony, which was only disturbed by the selfishness of individuals : and
1 Carroll's Coll., 289.
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in this story he has been followed by other historians thus misled by him.1 But Saunders, in his prefatory note to the first volume of the colonial records of North Caro- lina. points out the inaccuracy of this statement. Sir John, as we have seen, arrived there with his small colony in October, 1665. but abandoned them and returned immedi- ately to Barbadoes ; where he was a member of the King's Council, taking an active part in the affairs of the island during the years of his supposed benign rule at Cape Fear.
The Barbadian settlements on the Cape Fear were, in fact, broken up in the summer or early fall of 1667; the colonists not coming to South Carolina, as stated by Chal- mers, but going, some up to the Albemarle settlement and some to Nansemond County in part, and in part to Boston.2
1 Hist. Sketches of No. Ca. (Rivers), 71.
2 Colonial Records of Vo. Ca., vol. I, 148-151, 157-159, 177-208.
A . ..
CHAPTER IV
IN the early part of 1669 Lord Ashley, not yet the Earl of Shaftesbury, assumed a leading part among the Proprietors, and their previous indefinite policy in regard to the colonies was abandoned under his influence for a determined course. His first step was to prepare and formulate a plan of government for the great province they were to found. For this purpose he engaged the assistance of his friend, the celebrated philosopher John Locke, who was then living with him at Exeter House, his Lordship's London residence as his private secretary. The result of their collaboration was the production of the famous " Fundamental Constitutions " drawn by Locke in March of that year. and which, with some modifications, were solemnly adopted by the Proprietors in the July following.
This most extraordinary scheme of forming an aristo- cratic government in a colony of adventurers, in the wild woods, among savages and wild beasts began with this formal recital :-
"Our Soveregn Lord the King having out of his royal grace and bounty granted unto us the Province of Carolina with all the royalties, properties, jurisdictions and privileges of a County Palatine, as large and ample as the County Palatine of Durham with other great Privi- ledges for the better settlement of the government of the said place, and establishing the interest of the Lords Proprietors with equality. and without confusion: and that the government of the Province may be made most agreeable to the Monarchy under which we live and of
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which this Province is a part, and that we may avoid erecting a numerous democracy ; we the Lords Proprietors of the Province aforesaid have agreed to the following form of governments to be perpetually estab- lished amongst us, and unto which we do oblige ourselves, our heirs and successors in the most binding ways that can be devised." 1
The charter constituted the province a County Palatine. The first provision necessary therefore was to determine who should be the Palatine. The first clause of the con- stitution accordingly provided that the eldest of the Lords Proprietors should be the Palatine : and upon his decease the eldest of the seven surviving Proprietors should always succeed him. Then seven other chief officers were pro- vided, viz. an Admiral, Chamberlain, Chancellor, Constable, Chief Justice. High Steward, and Treasurer, the places of which should be enjoyed by none. but the Lords Proprie- tors to be assigned at first by lot, and upon the vacancy of any one of these seven great offices by death or otherwise the oldest Proprietor should have his choice of such place.
Seizing upon the clause in the charter which we have traced from that of Sir Robert Heath. which empowered the Proprietors to confer marks of favor and titles of honor upon such of the inhabitants of the said province as they should think fit, and as this instrument expressed it. in order that the government might be made most agree- able to monarchy and avoid erecting a numerous democ- racy, the whole province was to be divided into counties ; each county into eight seigniories, eight baronies, and four precincts ; each precinct into six colonies. These terri- torial divisions were made for the support of the proposed aristocracy, and for this purpose it was provided.
"4 Each signory, barony, and colony shall consist of twelve thou- sand acres: the eight signories being the share of the eight proprietors, and the eight baronies of the nobility: both which shares being each
1 Statutes of So. Ca., vol. I, 43 ; Colonial Records of No. Ca., vol. I, 157.
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of them one fifth of the whole are to be perpetually annexed, the one "to the proprietors, and the other to the hereditary nobility; leaving the colonies, being three fifths among the people; so that in setting out and planting the lands, the balance of the government may be preserved."
As each seigniory, barony, and colony contained 12,000 acres, each county was made to contain 480,000 acres, or 750 square miles. Of this land the eight Proprietors 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 appointed 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.1
Until the year 1701 the Proprietors were to be allowed to dispose each of his proprietorship, and of his seigniories and powers ; but after that time no Proprietor was to be allowed to alienate his proprietorship with its seigniories, baronies, and privileges, but for a term of three lives or twenty-one years ; and that only to the extent of two- thirds, the remaining third to be always in demesne, i.e. in the Proprietor's own actual possession, and not under lease to tenants. The proprietorship. with its lands and privileges, was to descend to the heirs male, and for want of such heirs. to a Landgrave or Cacique of Carolina, who was descended from the next heirs female of the Proprie- tor ; if none, to the next heir general ; and for want of any such heirs the remaining seven Proprietors were au- thorized to choose a Landgrave to succeed to the deceased Proprietor; and it was required that whoever succeeded a Proprietor. either by inheritance or choice, should take the name and arms of the Proprietor whom he succeeded.
1 Hist. Sketches of So. Cu. ( Rivers), 83.
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which should thenceforth be the name and arms of his family and their posterity.
Besides the Proprietors, the nobility was to consist of Landgraves and Caciques. These terms were chosen be- cause by the provision of the charter it was required that the title was to be unlike those of England. The title Landgrave was borrowed from the old German courts ; and that of "Casique " or "Cacique " from the style of the Indian chiefs of America. There were to be as many Landgraves as there were counties, and twice as many Caciques, and no more. These were to constitute the hereditary nobility of the province, and by right of their dignity to be members of Parliament. Each Landgrave was to have four baronies, and each Cacique two baronies hereditarily and unalterably annexed to and settled upon the dignity. The same rules of alienation and descent as to the lands and dignities of the Landgraves and Caciques were laid down as were prescribed for the proprietorship.
Besides the seigniory of the Proprietor, the barony of the nobility. and the colony or precinct of the commons, an- other subdivision was allowed, - that of the manor, which was to consist of not less than 3000 acres, and not above 12.000 in one entire piece, and in one colony: the mere possession by one, however, of such a tract did not consti- tute it a manor unless it was so ordered by a Palatine Court. A lord of a manor within his own manor was to have all the powers, jurisdictions, and privileges which pertained to a Landgrave or Cacique in his barony. .
It was provided that " In every signory, barony and manor all the leet-men shall be under the jurisdiction of the respective lords of the said signory. barony or manor without appeal from him." This provision was a revival and adaptation of the ancient system of the hundred, under which in England a court-leet was held once a year within
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each particular hundred. lordship, or manor, and to which court all the freeholders within the precinct above the age of twelve and under sixty, excepting peers, clerks (i.e. clergy), women. and aliens, whether masters or servants, owed their personal suit and attendance, and were to be sworn as to their fealty and allegiance. The court-lect in England was charged with the preservation of the peace, and had jurisdiction over small offenders against the public good.1
But while new and oppressive provisions were imposed by these constitutions, such as that no leet-man or leet- woman should have liberty to go off from the land of his or her lord, and live anywhere else without leave obtained from the said lord under hand and seal ; and while the existence of the court-leet was at least impliedly recog- nized in the provisions that the lord of the seigniory, barony, or manor should have jurisdiction without appeal over his leet-men, and prescribing that no one should be capable of having a court-leet but a Proprietor, Landgrave, Cacique, or lord of manor, no provision was made for the holding of such courts, but, on the contrary, their organi- zation and jurisdiction, as they prevailed in England, were given to County and Precinct courts.
Who were to be leet-mien was not declared save in the clause "whosoever shall voluntarily enter himself a leet-man in the registry of the County Court shall be a leet-man." The only inducement held out for one thus voluntarily to put himself within the absolute control of his lord was that the lord should. " upon the marriage of a leet-man or leet-woman, give them ten acres of land for their lives, they paying to him therefor not more than one- eighth part of all the yearly produce and growth of the said ten aeres." Could the framers of this instrument.
1 Blackstone's Com., vol. IV, 273.
+
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philosophers or statesmen, suppose that for the rental of those few acres upon marriage, freemen would have thus enslaved themselves ?
Eight Supreme Courts were provided ; the jurisdiction of these courts was legislative as well as judicial. The first was the Palatine Court, consisting of the .Palatine and the other seven Proprietors. This court with its vice- regal power corresponded to the King in the monarchy of England, but with even greater relative power in its lim- ited sphere. It was the source of all law and the final arbiter of justice. The other seven courts each consisted of one of the other seven great officers and six counsellors.
To the Chancellor's Court belonged all matters of State and treaties with the neighboring Indians, all invasions of the law of liberty of conscience, and all invasions of the public peace upon pretence of religion, as also the license and control of printing.
The Chief Justice's Court had jurisdiction of all ap- peals both civil and criminal, except such as fell under the jurisdiction and cognizance of any other of the Pro- prietors' courts.
The Constable's Court had the order and determination of all military affairs by land, and of all land forces, arms, ammunition, and whatever belonged unto war.
The Admiral's Court had the powers of a court of admiralty, with power to appoint judges in port towns to try cases belonging to the law-merchants as should be most convenient for trade.
The Treasurer's Court was charged with the care of all matters that concern the public revenue and treasury.
The High Steward's Court had the care of all foreign and domestic trade, manufactures, public buildings, work- houses, highways, passages by water above the flood tide, drains, sewers, and banks against inundations, bridges.
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posts, carriers, fairs. markets, corruption or infection of the air or water, and of all things in order to the public commerce and health, the surveying of lands, and the appointing places for towns.
The Chamberlain's Court had the care of all ceremonies, precedeney, heraldry. reception of public messengers. pedi- grees. the registration of births, burials, and marriages, legitimation, and all cases concerning matrimony ; and had power also to regulate all fashions, habits, badges, games, and sports.
There was to be a Grand Council consisting of the Palatine, seven Proprietors, and the forty-two counsel- lors of the several Proprietors' courts, which should have power to determine any controversy that might arise be- tween any of the Proprietors' courts about their respective jurisdictions. This body was also to prepare all matters to be proposed in Parliament, and no matter whatsoever was allowed to be introduced in Parliament which had not first been considered by it ; after which, having been read three several days in Parliament, it was by majority of votes passed or rejected.1 The Grand Council was to meet the first Tuesday in every month. The quorum was but thirteen. whereof a Proprietor or his deputy should be always one. The Palatine or any of the Lords Pro- prietors were empowered under their hands and seals to be registered in the Grand Council, to make a deputy who should have the same power to all intents and pur-
¿ The precedent for this provision was probably found in that of Poyning's law in regard to Ireland, of 1494 (the great bone of contention in the later days of Flood and Grattan), under which no matter could be moved or considered in any Parliament of Ireland until it had been con- sidered, approved, and certified under the great seal of England. By which means nothing was left to an Irish parliament but a power of pass- ing or rejecting such measures as were proposed to them. Blackstone's Com., vol. I, Intro., § 4; Green's Hist. of the English People, vol. II, 73.
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poses as he who deputed him except the confirming acts of Parliament and nominating and choosing Landgraves and Caciques. The eldest of the Lords Proprietors who should be personally in Carolina should, of course, be the Palatine deputy.
County and Precinct courts were provided, as before intimated. for the trial of small causes. civil and criminal. For treason, murder, and all other offences punishable by death, a commission twice a year at least was to be granted to one or more members of the Grand Council who should come as itinerant judges to the several counties, and with the sheriff and four justices hold assizes to judge all such cases. From the Court of Assizes an appeal was allowed to the respective Proprietors' court, but only upon the payment of £50 sterling to the Lords Proprietors' use. These courts of assize were to be held quarterly. not exceeding twenty-one days at any one time.
None but freeholders could be jurymen. Every jury was to consist of twelve men, but it was not necessary that all should agree; the verdict was to be rendered ac- cording to the consent of the majority. There was then a curious provision taken, doubtless by Locke, from the Cincian law of Rome, which declared it to be a base and vile thing to plead for money or reward, and forbade that any, except a near kinsman, should be permitted to plead another's cause until he had taken an oath in open court that he had not directly or indirectly bargained with the party whose cause he was going to plead, for money or other reward.
The object of this provision, it has been observed, is manifest. It was to make of pleading before the courts of justice a patrician privilege. and thus secure to the governing class the immense influence which attaches. to the administration of the law. And the result would
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have been to have made of the profession a class within a class, invested even with higher power and more extensive influence than the body to which it belonged.1
There was to be a biennial Parliament, to consist of the Proprietors, or their deputies. the Landgraves and Caciques. and one freeholder out of every precinct, to be chosen by the freeholders. Like the ancient Scotch Par- liament, all were to sit together in one room and each member to have one vote. It is evident that the repre- sentation of the commonalty would have but little influ- ence in such a body, by the very constitution of which they were in a hopeless minority; but the provision that no business should be allowed to be proposed until it was debated in the Grand Council. whose duty it was, like the Lords of Articles in the Scotch constitution, to prepare bills for Parliament, reduced them still more to the posi- tion of mere witnesses to the action of others whose pro- ceedings they could not control.
The freeholders of the respective precincts were to meet to choose Parliament men every two years at the same place unless the steward of the precinct, upon proper notice, appointed some other place. The manner of these elections was not prescribed : but without doubt they were intended to be by poll, as it was especially provided that all elections in the Parliament itself. in the several cham- bers of the Parliament, and in the Grand Council should be by balloting. As far as is known, however. no election ever took place in South Carolina except by ballot.
To avoid a multiplicity of laws which it was said by degrees always change the right foundations of the original government, all acts of Parliament, it was pro- vided. should, at the end of a hundred years after their
' '1'OfAtion of William Henry Trese st, before Historical Society, Coll. Hist. of So. Ca., vol. III. 28.
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enactment. " cease and determine." i.e. come to an end of themselves without repeal. And since, continued these wise lawmakers, multiplicity of comments, as well as of laws, have great inconveniences. and serve only to obscure and perplex. all manner of comments and expositions on any part of these Fundamental Constitutions or upon any part of the common or statute laws of Carolina are abso- lutely prohibited.
A registry was provided in every seigniory, barony, and colony, wherein were to be recorded all births, marriages, and deaths. The time of every one's age that is born in Carolina. it was declared, should be reckoned from the day that his birth is entered in the registry, and not before. No marriage was lawful until both parties owned it be- fore the Register. No administration upon the goods of a deceased person was allowed until his death was regis- tered. Neglect to register a birth or death subjected the person in whose house or ground the birth or death took place to a fine of one shilling per week. The births, mar- riages, and deaths of the Lords Proprietors. Landgraves. and Caciques were to be registered in the Chamberlain's Court.
All incorporated towns were to be governed by a mayor. twelve aldermen. and twenty-four of the common council ; the common council to be chosen by the householders of the town. the aldermen to be chosen out of the common council, and the mayor out of the aldermen by the Pala- tine's Court.
The provisions in regard to religion were also remark- able. It was especially provided that "no man shall be permitted to be a freeman of Carolina, or to have any estate or habitation within that doth not acknowledge a God, and that God is publicly and solemnly to be wor- shiped." But as it was expected that those who would
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