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THE AMERICAN COLONIES
IN THB
SEVENTEENTH CENTURY
THE AMERICAN COLONIES
IN THB
SEVENTEENTH CENTURY
BY
HERBERT L. OSGOOD, Ph.D.
PBOFX880B OF HI8TOBT IK COLUMBIA UinYBBSTTT
Volume n
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THE CHARTERED COLONIES. BEGINSll*GS OF
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1904
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CONTENTS PART THIRD
THE PBOPBIETABY PBOVINCE IN ITS LATEB FOBMS
CHAPTER I
Gekeral Characteristics of tub Later Fropribtart Froyincbs
The joint maDagement of land and trade in the early provinces was a reflection of the joint-stock system under which they were
founded 3
Though American colonization was begun by corporations, it was
not continued by them 4
Individual proprietors or boards of proprietors take their place 4
Feudlkl characteristics emphasized in later proprietary provinces . 4
The county palatine of Durham 5
The charter of Maryland 8
Charters of Maine and Carolina 11
Charters of New York and Pennsylvania 11
Differences between a proprietary province and a corporate colony . 12
The province was normally monarchical in organization . 13
Tendencies which facilitated the democratizing of the province . . 13
CHAPTER II
Thb Land Ststem of the Later Proprietary Provihcbs .
Distinctions between land system of New England and that of the
provinces 16
The province and tracts within it were granted as estates of inheritance
to individuals 17
This not wholly true of provinces founded by corporations . 17
Instances of treatment of provinces like private estates ... 18
New York and New Jersey 18
Pennsylvania 18
TheCarolinas 19
Territorial policy of the proprietors 19
V
VI CONTENTS
PAOS
Suspension of statute quia emptores 19
Issue of conditions of plantation 20
Maryland 21
TheCarolinas 21
New Jersey 21
Pennsylvania 21
Confirmation of titles and new conditions in New York . 23
Upon conditions of plantation depended size and variety of estates . 24
Estates larger in provinces than in New England 24
Proprietary reserves and manors 25
Maryland 25
TheCarolinas 25
The Jerseys 27
Pennsylvania 29
The patroonships of New Netherland 31
Colonies and small grants in New Netherland 32
Question of mortmain in Maryland 33
Proprietary income from land 33
Alienation fines in Maryland 34
Sales of land in Pennsylvania and Maryland 34
Quitrents in all the provinces 35
Forms in which quitrents were paid 36
Struggles over quitrents in New Jersey 37
Under Berkeley and Carteret 37
Under the twenty-four proprietors 39
Rents in New Netherland 39
Quitrents in New York 40
Policy of the early governors 41
Policy of Governor Dongan 41
Administrative machinery 42
Development of land office in Maryland 42
Work of governors, secretary, and surveyor-general in other prov- inces 42
Development of proprietary boards in the Jerseys .... 45
. Board of property and land office in Pennsylvania .... 46
The land system chiefly under executive control .... 46
Group settlements in the provinces 47
Tovms of New England type abound in New York and northern
New Jersey 47
Proprietary system favorable to individual grants ... 48
Individual initiative in New Netherland 48
Groups of farms bound together by town patents ... 49 Extension of this form of settlement in southern New Jersey and
Pennsylvania 50
Germantown an exception 5^
Large proprietary influence in Maryland and South Carolina . 53
Annapolis and port towns 53
Albemarle Point and Oyster Point 55
CONTENTS VU
CHAPTER m Thb Official System nr Maryland
Effect of the bestowment of governmental rights on the proprietor . 68
The executive in the proprietary provinces 58
The executive in Maryland 60
The governor, secretary, surveyor, and '^commissioneis," 1634 . 60
The ordinance of government of April, 1637 61
The office of governor 61
His relation to the province 61
His relation to the proprietor 62
The council 65
Its relation to the governor 65
Its membership 66
Its powers 66
The expansion of the official system 67
Creation of new offices 67
Effect of development of local government 68
Local government was chiefly created by the executive .... 69
The military system and policy had the same origin .... 69 The financial support of the executive not yet a subject of controversy
with the legislature 70
Concentration of power in the hands of the executive .... 71
Question of tenure of sheriffs after 1660 71
Family influence of the proprietor 71
Concentration of offices in a few hands 71
CHAPTER IV
The Legislatubb in Maryland and its Relations with the
Executive
Social and political forces act through the legislature to transform the fief 74
Its form was determined by concessions of the proprietor ... 75
Relations in general between the executive and the legislature . 75
Early and changing forms of the legislature 76
The general assembly of 1638 76
The general assembly of 1639 77
Fluctuations between 1640 and 1650 77
' The two houses appear in their final form in 1650 .... 79
The upper house 79
Relations between the legislature and the executive prior to 1660 . . 80 The question of the initiative. Action of the proprietor in 1688
and again in 1649 and 1650 82
Failure of the scheme of legislation in 1639 83
Assertions of executive discretion in 1642 84
Retetabliflhment of government in 1660 84
Vm CX)NTBNTS
PAOS
Question relating to duties on tobacco 85
The revolutionary scheme of Fendall 86
Its defeat 87
Belations between the legislature and executive after 1660 ... 87
The official dique under Charles Calvert 87
Appearance of opposition in 1669 80
Grievances arising from the veto and the tax levy ... 89
Case of Rev. Charles Nicholett 90
Case of John Morecroft 90
Upper house compels lower house to expunge a part of its pro- ceedings 90
Passage of acts limiting the powers of the executive, 1671-1676 91
Attack on sheriffs and legislation of 1676 91
Appropriation acts after 1670. Specific appropriations ... 92 Renewed efforts to restrict the discretion of the proprietor in the
exercise of the veto 93
CHAPTER V
Thb Official System m Propbobtart New Nbthbrlakd
The distinguishing characteristic of New York was the prominence and
strength of the executive 95
The same was true of New Netherland 95
The West India Company as proprietor 96
Origin of the company and its relations with the States Oeneral 96
Correspondence between the Amsterdam chamber and the director 98
System of joint control by States General and company . 99
The executive within New Netherland 100
The director and council 100
The autocratic powers of the director 101
Description of this in remonstrance of 1653 .... 102
His will could be checked only by appeal to Holland . . . 103
Scope of ordinances issued by director and council .... 103
Its administrative activity 104
The other officials of the province, especially the schout fiscal . 105
Early development of local government 106
The sections of New Netherland 106
The Freedoms and Exemptions of 1640 106
Grant of village rights 107
Village officials and their powers 107
Bestowment of municipal rights on New Amsterdam .... 108
They are tardily conceded by Stuyvesant 109
Grant of excise on wines and beer to the city 109
Regulative power of director and council continues to be greiat . 109
Government on the South river 109
Duties and powers of commissary 110
Jan Jansen and Andries Hudde 110
CONTENTS IX
PAOB
The ▼ioe-diiectorahip, Jacquet Ill
The local court Ill
Cases of interposition by the director and council . . .112
Vice-director and council of New Amstel 112
Alrichs and D'Hinoyossa 113
OfiOioerB of company withdraw from South river . .114
Goyemment at Fort Orange and Rensselaerswyck 115
Organization of the manor 115
Belations between the authorities of the manor and those of the
company 110
CHAPTER VI Thb Trahbitiok raoM Dutch to English GoTBRmcsNT. Ths
EXSCUTITS IN PSOPRISTARY NbW YoBK
The transition 119
Grant of charter to Duke of York 119
Administration through a governor and council set up at New York 119
The articles of surrender 119
Extent to which Dutch officials and privileges were continued . 120 English government established in Long Island, Westchester, and Staten
island 121
Yorkshire and its three ridings 121
Proclamation of the Duke^s Laws 121
Provisions of Duke*s Laws relating to government .... 122 English system of town government established .... 122 Substitution of English for Dutch government in city of New York . 123 No radical difference between manner of establishing English govern- ment in New York and that followed in other colonies . 124
Effect of treaty of Breda on the English title 124
Complete cession by treaty of Westminster 124
The executive in New York 125
No radical difference between the Dutch and English executives . 125
Indian and military relations more fully developed by English . 125 Specially close connection between the king and New York . .126
Personality of Grovemors Nicolls and Andros 127
Philip's war and the visit of Andros to England in 1678 . . 129
Andros and Lewin hi 1680 130
The council 131
Exclusive and aristocratic 131
A small body of officials and heads of rising families . . . 132
Authority of governor and council extended throughout the province . 133
Controversies with the Long Island towns 134
Before the Dutch reoccupation 134
After the Dutch reoccupation 135
Examples of administrative work by governor and council . . • 136
Settling disputes between towns 137
X CONTENTS
PAOK
Establishment of towns 138
Establishment of local courts . . . . . . . . 139
Fiscal and military affairs 139
CHAPTEB Vn The Begixninob of a Leoislatubs in Propribtabt New Tohk
Extended reference is necessary to the development of opposition in
New Netherland 141
Opposition during the administration of Kieft 143
The Indian war and the Twelve Men, 1641 144
The Twelve demand increased powers 144
Kieft dissolves the Twelve, February, 1643 145
Kieft is forced to call the Eight Men, September, 1648 . .145
The Eight appeal to the Amsterdam chamber .... 145
The Eight consent to the levy of an excise 146
Further remonstrance to the company and States General . 146
Recall of Kieft 147
Opposition during the administration of Stuyvesant .... 147
Prosecution of Melyn and Kuyter 147
The appeal to the States General 148
Stuyvesant calls the Nine Men, 1647 148
Composition and powers of this board 148
It concerned itself with local improvement 149
But it labored chiefly to secure aid and redress from the home gov- ernment 149
The ** Remonstrance of New Netherland'* loO
Replies of the company and of Stuyvesant's agent . . . .151 New set of Freedoms and Exemptions and the Provisional Order
of 1650 152
The English of Long Island begin to share in public affairs .153
Meeting at the city hall, November 26, 1653 . . . . .154
Convention of December 10, 1653 155
Its remonstrance to the Amsterdam chamber 155
Director and council repudiate the convention . . . .156
Opposition ceases for ten years 157
Is revived by danger of conquest by the English . . .158 Remonstrance by Dutch magistrates, November, 1603 . . 158
The Landtdag of April, 1664 158
Development of opposition to the English executive . . . .159
The Dutch take little part in this 159
NicoUs promises enjoyment of English liberties .... 159
The meeting at Hempstead, March, 1665 159
English towns petition for fulfilment of Nicolls's promise, meaning
thereby the grant of an assembly 160
Lovelace rejects the petition 160
Protest of Long Island towns against payment of a tax . . 161
The duke and Andros reject demand for an assembly . .102
CONTENTS XI
PAOl
The first New York legislature 162
The agitation of 1681 against payment of customs duties . . 162
Appointment of Dongan as governor 164
The concession of an assembly 164
The election and assembly of 1683 166
Its legislation 166
The charter of liberties not confirmed 167
The concession of an assembly withdrawn when Dongan was ap- pointed royal governor 168
CHAPTEB Vra The GoYXRHMBiiTAL System of New Jersey
Did the proprietors of New Jersey legally possess rights of government ? 169
Principle of English law involved 169
The lease and release of 1664 169
Letter of Charles U, 1672 170
Changes of 1674. Second deed of release 170
Opinion of Sir William Jones, 1680 172
Deeds of 1680 to proprietors of East and West Jersey . .172
The claim of the proprietors practically but not legally established 172
Efforts of the proprietors to establish government .... 173
The agreements and concession of 1666 173
Appointment of governor, council, and other officials . . .174
Beginnings of local government 174
Early courts and their officials 176
The first assemblies 176
Relations with the Monmouth Purchase 176
Disorders after 1670. James Carteret 176
Return of Governor Carteret from England with confirmatory in- structions 180
Strengthening of the government 181
Assemblies of 1676 to 1679 182
Controversiea between the Jerseys and New York . . .183
John Fenwick and the collection of duties on the Delaware river . 184 Overseers at Salem put under the jurisdiction of magistrates at
Newcastle 186
Formal control sought by Andros over the remainder of West Jersey 1 87
Vessels forbidden to enter and clear at Elizabethtovm 188
Carteret's arrest and trial by Andros 189
Andros assumes to govern East Jersey 189
In 1680 the duke yields and Andros soon returns to England . . 191
East Jersey under the twenty-four proprietors 191
The Quaker Concessions or form of government . . . .192
The East Jersey Constitutions 193
They were ignored in practice 194
Establishment of counties completed 196
XU CONTENTS
PAOB
Government in West Jersey 195
The board of commissioners 105
The representation of the tenths in the assembly .... 195 Edward Byllinge appoints governors and seeks to act as proprie- tor 190
The colonists oppose him and insist upon an elective governor 197
West Jersey practically a democratic self-governed community 197
C
CHAPTER IX
N
Carolina as a Propsietart Province. The Cape Fear and ashlbt river settlements, south carolina
The Heath patent for Carolina 200
The patents of 1663 and 1665 to Clarendon and associates . . .201
A proprietary board as a colonizing agent 201
The Cape Fear experiment 202
Early proposals of New Englanders and Barbadians . . . 202
The ''declaration and proposals" of 1663 203
Acceptance of conditions offered by the group from Barbadoes . 204
Concessions and Agreement of 1665 204
Their liberal character 204
Unsuccessful attempt to found a colony at Cape Fear . . . 206
Shaftesbury becomes interested in southern part of province . 207
The Fundamental Constitutions 208
Their provisions in reference to government .... 208
They were an octroi constitution 211
Efforts of proprietors to put them into force . . . .211
Elected members in the council 212
Ordinance power and right of initiative 212
The Ashley river settlements. South Carolina 213
Owen and Scrivener at Port Royal 213
Temporary laws of 1671 215
Controversy between Yeamans and West 215
The council and palatine^s court 216
Shaftesbury defines position of governor 217
West made landgrave and governor 218
Governor Morton and the Scotch settlers at Port Royal . . . 219
The election of 1683 220
Vain attempt to procure acceptance of the Constitutions in 1685 . 221
Destruction of colony at Port Royal 222
Administration of James Colleton 222
Attempt to govern by martial law 223
Administration of Seth Sothell 223
Conflict with Colleton faction 224
Intention to abandon Constitutions first admitted under Governor
Ludwell 225
Right of initiative abandoned under Governor Smith, 1693 . . 227
The assembly of 1692. Huguenots from Craven county . 227
GONTBNT8 XUl
PAOB
Conciliatory policy of Archdale 229
Final revision of Constitutions. Their withdrawal . . 229
The assembly secures right to name the province treasurer . . . 280
(cR
CHAPTER X
Caholika as a Prophietart Provikcb. Thb Albbmarlr Sbttlrmbnt, North Carolina
Origin of Albemarle settlement 232
Poor means of communication 232
Greatly neglected by the proprietors 233
Grovemment established. Drummond and Stephens .... 235
Assembly of 1669 236
Instructions under Fundamental Constitutions 236
The so-called Culpepper rebellion, 1677 237
The tobacco trade. Illicit trading 237
Anarchical tendencies in the province 238
Thomas Miller supplants Culpepper and others as collector . . 239
In absence of Eastchurch, Miller governs province . . 239
Uprising against him, December, 1677 239
Proceedings on the case in England 240
GrOvemment in North Carolina 240
Sothell and the governors who followed him 240
The work of the governor and council 242
Expansion of settlement 244
The so-called Cary rebellion, 1708-1711 244
Growth of Quakerism in the province 244
Act of 1701 for establishment of English Church .... 245
Renewal of attempt in 1704 246
The Quakers and the taking of oaths 246
Governor Cary and the oaths 247
President Glover and the oaths 247
Glover and Cary in conflict 248
Glover retires in favor of Governor Hyde 248
Hyde and Cary in conflict 249
Contest ended by Tuscarora war 250
Administration of Eden 250
Submission of Moseley enforced 251
Peace established in the province 251
CHAPTER XI
Proprietary Government in Pennst&vania
^^MiWiBm Penn*s ideas concerning government 252
Coincidence of Quakerism with tendencies of colonial life . . 254
Penn seeks to share rights of government vnth the colonists . . 255
XIV CONTENTS
PAGK
Origin of govemment in Pennsylyania. The Frames of Government . 255
The elective council 257
Inferior position of the assembly 259
Position of the governor 259
Session of 1088 200
Frame of Govemment of 1683 260
Controversy over the elective council 201
Form used in promulgating bills 261
Lower house dissatisfied with its inferior position .... 261
Penn appoints commissioners of state 262
Council continues to be poorly attended 262
Bad relations between the two houses, 1688 263
Governor Blackwell seeks to increase attendance at the council . 263
Controversy with the chancellor, Thomas Lloyd .... 265
Bitter disputes between governor and council 266
Appointment of Fletcher as royal governor 269
This brings elective council to an end 260
Question of validity of Pennsylvania laws . . . . 270
Raising of a supply 271
Restoration of authority of the proprietor 273
The elective council temporarily restored 273
The lower house begins to initiate legislation 275
Markham^s Frame of Govemment 275
Visit of Penn to the province in 1700 275
The Charter of Privileges 276
Council made appointive and deprived of its legislative power . 276
CHAPTER XII
. . ... — •
The Judiciary in thb Later Proprietary Provinces
The courts 277
The governor and coimcil 277
Their anomalous position 278
Curtailment of their judicial powers 278
Rise, under a variety of names, of higher tribunals distinct from
the governor and council in all the provinces .... 278
Local courts 281
The hundred in Maryland 281
Manorial courts in Maryland 281
Village courts in New Netherland 281
The ridings of Yorkshire 282
Courts of sessions at Esopus and Albany 282
Development of counties in New York, 1683 .... 283
Counties and county courts in Maryland and the Carolinas . 283 Counties and county courts in the Jerseys and Pennsylvania
By whom were courts established ? 285
As a rule, courts were first established by action of the executive
alone T .... 285
CONTENTS XV
PAOB
Exceptions in the Jerseys and PennsylYania .... 280^^^
Establishment of county courts in Maryland .... 288
Establishment of county courts in the Carolinas .... 289
Establishment of county courts in the Jerseys and Pennsylvania 201.
Jurisdiction of the courts 292
Common law jurisdiction in its entirety was exercised . . 293
Jurisdiction of director and coimcil in New Netherland . . 298
Jurisdiction of local courts in New Netherland. Appeals . . 294
Jurisdiction of the central courts in Maryland and the Carolinas . 294
Jurisdiction of the central courts in the Jerseys and Pennsylvania . 2( Jurisdiction of the county courts in the provinces ....
Procedure in the courts 303
English procedure followed, except in New Netherland and for a
time in parts of New York 303
Employment of attorneys in civil cases 304
Procedure in criminal trials 305
In some provinces justice administered in name of king ; in others
in name of the proprietors 306
Office of attorney-general 307
. CHAPTER Xra
Ecclesiastical Rblations in the Latsb Profrixtabt
Pbovimcbs
Varieties of religious faith in these provinces 309
Geographical distribution of the confessions 311
Great preponderance of Protestant dissent 313
Nearly all the sects believed in connection between church and state . 314
The ecclesiastical system of Maryland 316
Provisions of the charter 316
Diplomatic spirit of the Calverts 315
Claims of the Jesuits to land and jurisdiction renounced . . 317
The governor's oath, 1648 319
The law of 1649 provides a limited toleration 320
Puritans cause the withdrawal of toleration from Catholics . .321 Demand for special recognition of Anglicans begins after the Resto- ration 322
Ecclesiastical policy of Carolina proprietors 323
The royal charter provided for an establishment with toleration for
dis^nt 323
The Concessions and Agreement 323
Early growth of dissenters and Episcopalians .... 325
Attempt to impose a religious test, 1704 326
Act for lay commission 328
Defeat of the plan in England 329
Establishment of church, 1706 330
Quakers and Episcopalians in North Carolina .... 332
XVI CONTENTS
PAOB
Attempt to establish the church in 1704 ...... 332
Connection of this with Gary's rebellion 332
Ecclesiastical relations in New Netherland and New York . 333 Relation between the company and the churches in New Nether- land 333
Provisions of Duke's Laws concerning parishes and ministers . 336
System of privileged churches 336
Relations between Andros and the Dutch clergy .... 338
System of religious freedom in New Jersey 341
Penn laid no restriction on the right of public or private worship . . «^43
But a religious test was imposed on office-holders .... 344
CHAPTER XIV
The Financial Ststbm of thb Later Proprdstart Provinces
Tlie territorial revenue a private resource of the proprietors . . . 347
Direct taxes 347
The poll tax an early form of levy 347
The property tax in Maryland 349
In South Carolina 350
Appears in New York as an imitation of the New England country
rate 361
Later perpetuated in New York, New Jersey, and Pennsylvania as
the penny in the poimd 362
Method of levy in Pennsylvania 364
The tithe and land tax in New Netherland 364
It appears also in the Jerseys 366
Indirect taxes 366
The excise in New Netherland 366
New Amsterdam a staple port 357
Export and import duties in New Netherland 358
Export and import duties in New York 359
Indirect taxes less prominent in the other colonies than they were
in New Netherland and New York 360
They appear to a limited extent in Maryland, South Carolina, and
Pennsylvania 360
But not at all in proprietary New Jersey 361
The tonnage duty in Maryland and South Carolina . . . 361
Fees and their regulation 362
In all the provinces except Maryland and New York they were
early regulated by law 362
Objects of expenditure 366
Salaries and wages in general 366
Salaries in New Netherland and New York 366
In the provinces generally a salary system only imperfectly devel- oped in the seventeenth century 366
CONTENTS XVU
PAflB
Financial administration 367
Wholly regulated by the executive in New Netherland and New York 367
The officials concerned 368
Farming of the excise 368
In the other provinces taxes were levied under authority of acts of
the legislature 360
Officials in Maryland and South Carolina and their duties . 369
Provisions of the laws were meagre in Maryland and Pennsylvania ^70 In the English provinces, except New York, the legislature had
exclusive right to make appropriations 370
Specific appropriation acts in Maryland 371
Appropriation acts in South Carolina 372
In the Jerseys and Pennsylvania 373
CHAPTER XV
The System of Defence in the Latbb Pbopribtast
Provinces
Much that was stated under New England Is true also of the provincial
militia and defences 376
New York and South Carolina as border provinces .... 376
Relatively protected and peaceful condition of the middle provinces . 376 In Maryland and New York the system pretty fully developed before
legislation began to prescribe rules 378
Maryland act of 1664 378
Military activity of executive before 1660 378
Military activity in 1675 and 1670 380
Articles of war 381
Special council of war 382
Early measures of defence in South Carolina 383
At Albemarle Pomt 383
At Charlestown. Act of 1685 384
Establishment of the patrol system 386
State of the militia in 1708 386
The military in New Netherland and New York 386
Regular garrison troops 386
The levies of the rural towns 387
The burgher guard of New Amsterdam 388
Defensive measures against the English in 1664 .... 389
The English force and the reasons for its success .... 391 Under the English the resources of the Long Island towns are
secured 392
Provisions of the Duke^s Laws 392
Independent companies from England for garrison service 393
The garrisons at Albany 393
At Kingston 394
At New York 394
XVm CONTENTS
TAOm
Forts at New York and Albany 396
The guard at New York and the rural militia companies . . 307
Nicolls and the company at Flushing 397
{ A troop of horse in Yorkshire 398
The soldiers at Kingston 399
Early laws of the Jerseys relating to defence 399
CHAPTER XVI
Indian Relations among the Later Propribtart PRoyiNCBS
The extent of the provincial frontier 401
The narrow and sectional views of the colonists in reference to defence
the outgrowth of their social condition 401
The Indian stocks along the middle and southern frontier . . . 402
Regulation of intercourse with the Indians 403
In reference to the extinguishment of their claims to land . 403 In reference to trade in arms, ammunition, and liquors, and inter- course in general 405
Policy of the Dutch 406
Policy of the English in Maryland 407
Regulations in South Carolina 409
Policy in New York 410
Policy in New Jersey and Pennsylvania 410
Trespasses upon corn-fields and destruction of fences . . . .411
Exclusion of Indians from settlements 412
Attitude of provinces toward Indian piissions 413
Experiment of the Jesuits in Maryland 413
Slight effort on Long Island 414
Indifference of the Quakers 416
Extension of a protectorate over Indians 416
Tribes of southern Maryland 416
Indian commission in South Carolina 417
Indian commission on Long Island 419
Indian commission at Albany 419
Indian relations along the frontier as a whole 420
The wars of the Five Nations with other Indians .... 420
Wars between Dutch and the river Indians 421
Connection between Dutch arms and ammunition and the suprem- acy of the Iroquois 422
Southern raids of Iroquois lead to a comprehensive Indian policy . 422
Joint conferences at Albany 423
Conference of 1677 423
Negotiations between 1677 and 1684 424
Conference of 1684 425
French discoveries arouse the attention of New York . . . 426
Dongan and William Penn 427
CONTENTS XIX
TAom
Project of an alliance with the Five Nations and of a protectorate
over them 428
The Tuscarora war in North Carolina 429
The Yemaasee war 432
CONCLUSION
Society b^inning to assume an American type 483
Greater social uniformity than in Europe 438
Commimities more isolated than in Europe 434
More perfect self-goyemment than in English communities . 436 The corporate colony essentially an American product . . . 437 The proprietary province appears in great variety, was largely in- dependent of the king, and proprietor's power often shadowy 438 Analogy between period of chartered colonies and Saxon period in
history of England 441
PART THIRD
THE PROPRIETARY PROVINCE IN ITS
LATER FORMS
CHAPTER I
GENERAL CHABAGTBBISTICS OF THE LATER PROPRIETARY
PEOVINCB8
Our review of the provinces which were founded by CHAP.
trading companies at the beginning of English colonization ^^ ^
revealed the fact that they originated in a joint-stock system. That system in the colonies themselves gave rise, for a^ime and in varying degrees, to joint_mAnagemoat both of land
and trade. It was in that way that the incorporators or N adventurers sought to overcome the great difficulties of settling a new continent and to insure, so far as it was possible, a return to themselves. Joint management of land and trade, so far as it existed and was characteristic of the provinces as such, was the reflection of the joint-stock system under which they were created. More than that cannot be safely affirmed respecting it. It developed among a people whose ancestors for centuries had lived under a system of private property, though they were acquainted with various survivals of a time when a considerable part of the soil of England was subject to joint cultivation or lay waste and unimproved. Though under the stress of a new migration they resorted to common agriculture and trade, this was but a temporary device. They remained true to their instincts as individualists. That the device was temporary has already been shown by the history of its abandonment in Virginia and also in New England, except as a phase of agrarian policy in towns whose settlement was in a way a reproduction of the original form of colonization by groups. Trade, even in New England, passed wholly into private hands. The limits of the phenomenon will be further defined by a review of the methods under which land and trade were managed in the later proprietary provinces. It
4 THE PBOPRIETARY PROVINCE IN ITS LATER FORMS
PART will be seen that they began at the point which Virginia had ^ reached at the close of her proprietary period.
British colonization on the American continent was suc- cessfully begun by corporations, but it was not continued by them. Only four corporations resident in England were founded for this purpose, and these, with one exception, — the Georgia trustees, — came into existence prior to IggO. That this indicates a preference of the government for the proprietor or proprietary board over the corporation resident in England, as an agent for colonizing purposes, it would be rash to affirm. In that age of dawning industrialism it was easier to found a proprietorship than to establish a corpora- tion. ~ The initiative of a single individual, be he courtier or idealist in government and religion, would suffice for the former, while the members of a corporation, with the capital they contributed, could be brought together only as the result of a prolonged effort. Oftener than otherwise the proprie- tary grant was an expression of royal favor which implied nothing except reward for politicaTor personal services ren- dered by the patentee. On the American continent six more or less permanent proprietorships were established f directly under grants from the king — Nova Scotia, Mary- '^ land, Maine, New York, Carolina, and Pennsylvania. Of these all that proved of lasting importance, except Mary- V' land, were founded during the period of the Restoration. Many sub-fiefs — chief among which was New Jersey — were granted by the corporations and ttie proprietors, but these ^ had a brief and always a very imperfect existence. But in the multiplication of grants under this form, we discern no permanent tendency of the proprietorship to supplant the ^ corporation as an agency in colonization.
In the corporate colonies, and indeed in the provinces which were founded^ by corporations, it is difficult to see any vestiges of the fief. They were dependencies of the modern industrial and political type. The obligations under which their grantees stood to the king werei not distinctively personal, territorial, or military, but political in the broad sense of the term. The relations, moreover, between the grantees and their tenants or colonists were industrial and
CHAKAGTE&ISTIC8 OF LATER PBOPBIBTAEY PB0VINCB8 6
p^tical, ^ot^Jeudal. In the corporate colonies no effort CHAP, even was made to develop a system of quitrents. But in ^
e later proprietary provinces more of the forms of the fief3ppeaK In the charters of Maryland, Maine, and Caro- f lina it is distinctly stated that the rights of the grantees sEould be as great as those enjoyed by the bishops of Durham.^ In Penn's charter no reference is made to the bishop of Durham, but otherwise, with the exception of certain limitations introduced with the purpose of uphold- ing British sovereignty, its provisions were the same as those of the others. Tenure by free and common socage and nominal payments to the king these grantees enjoyed, as did the corporations which preceded them.
The reference in these charters to the bishops of Durham indicates a certain general fact, which, indeed, would have been true had the expression been altogether omitted. It means that it was the intention of the crown to bestow on these grantees rights and privileges which, in a general way, should be the equivalent of those enjoyed in the later middle age by a count palatine.^ These were regalities, or powers in their essential nature regal, and they were possessed in larger variety and higher degree by the count palatine than by any other English subject. In the cases of Chester and Durham they originated in prescription, and were confirmed by royal allowance and judicial decision. In nature they were terri- torial and governmental, and their combination made of the county palatine a great fief, an imperium in imperio. In Durham the bishop was the feudal superior; all land was held directly or indirectly of him, and he possessed full seign- iorial rights. Land escheated to him; he was entitled to for- feitures for felony, and even for treason. Special royal rights, as those over forests, those to mines, wrecks, treasure-trove,
^ The charters of Maryland and Carolina refer to the rights as coexten- sive with those of ** any '* hishop of Durham, while the language in Gorges^s charter implies that comparison was intended only with the bishopric as it was in the seventeenth century. As the rights of the bishops had been seri- ously curtailed in the reign of Henry YIII, this, had it proved to be more than legal verbiage, might have involved differences of some moment
* Lapsley, The County Palatine of Durham, Harvard Historical Studies, VIII. ; Surtees, History of Durham, I. ; Coke, Fourth Institute.
( &^ THE PROPRIETARY PROVINX'E IN ITS LATER FORMS
PART I and the like, attached to him. Baronies developed within ^Vl^l the palatinate, and those who held them were the tenants in / chief of the earl or bishop, served him in council, and held toward him a relation analogous to that sustained by the barons of England toward the king. The lord bishop and his county were also served by a body of officials, not so large or so perfectly differentiatedTas that of the kingdom, but still analogous to it. Among them were a sheriff of varied functions, a steward, coroner, constable, chamberlain, escheators, and above all a chancellor. Officers of the house- hold also appear as distinct from the officers of state. A judicial system existed, with a curia episeopi at its head, and before these courts all varieties of pleas, including pleas of the crown, were held. In the fourteenth century, a court of chancery developed. Full right of gardon belonged to the count. Councils in the nature of parliaments were held, aids and subsidies were levied, tenants called out in military array. Money was coined ; ports, markets, and fairs estab- lished ; writs, precepts, and commissions issued ; letters of incorporation and charters of privileges were granted. The V counties palatine being situated on the borders and being \^ remote from the residence of the king, their lords had a ^ certain status in foreign relations.
Until the legislation of Henry VIII, by which the inde- pendence of the counties palatine was seriously curtailed, all royal writs, except that oferror/were excluded, and govern- ment was conducted with only occasional recognition of the king. Transitory actions, by virtue of the general principle covering them, might be tried in an adjacent county, but all other civil suits in which both parties were tenants of the count must be tried in the palatinate. But by the act of 1535 ^ it was provided that thenceforth all writs, original as well as judicial, should run into these liberties, as they did elsewhere in the kingdom; that indictments should be in the name of the king; that the king should appoint civil and criminal justices and justices of the peace in the liberties, and that all statutes made concerning sheriffs and under- sheriffs should be in force against the stewards and other
1 27 Henry VIII, c. 24.
CHARACTERISTICS OF LATER PROPRIETARY PROVINCES 7
similar officers of the counts palatine. Thus the king be- CEL^P. came the keeper of the peace in the palatinate. In the same reign representatives were first summoned from Chester to attend the House of Commons, though Durham remained legally free from that obligation until 1675.^ When the counties palatine came to be represented in parliament, the system of taxation existing in the realm was extended into these liberties, and all except the shadow of former inde- pendence disappeared. Thus the growth of national unity proved in this case an irresistible foe to the continuance of special jurisdictions, with large and somewhat exclusive powers, existing as they did where neither location, race, nor culture made their survival a necessity.
It is evident that neither the London company nor the Plymouth merchants were guided by such a model or ideal as this. The corporate colonies exhibit none of its character- istics. The London merchants, though they founded a pro- prietary province, departed widely in most respects from the forms which the palatinate suggested. It would be too much to say that Gilbert and Raleigh had it distinctly in mind. But Gorges, at least during his later career, was an advocate of the feudal type of^cplony, and, could he have 7 had his way, would have firmly established it in New Eng- land. Lord Baltimore and the Carolina proprietors followed in much the same line, though with abundant variation in detail. In some respects also they showed greater liberality of spirit than did Gorges. The development in New York was strongly aristocratic and feudal, though Dutch feudalism and wealth gained largely by trade furnishecTlrhe bases on which it rested. In New Jersey and Pennsylvania, tenden- cies were operative which to a large extent democratized the province and obscured the original type. In the case of none of these provinces did the English palatinate serve as more than a general type, a background, a sketch, an outline. The picture in each case was filled in with a free hand. The province was the result of a development upon lines broadly suggested by the palatinate, rather than an exact reproduction
^ Darham was represented in the three parliaments of the Protectorate. Surtees, 1, 106.
8 THE PROPRIETARY PROVINCE IN ITS LATER FORMS
PART or copy of the original. The offspring, if a filial relation ^ J in any true sense could be affirmed, grew to maturity under
physical and social conditions which were very different from those to which the parent was subjected. Corresponding variations of type were the result. These appear in the land system, in the official system, in local subdivisions and government, in the administration of aSairs in all depart- ments.
The object of the study of these provinces as institutions is to show how, while they were fundamentally of the same type, they exhibit many variations and divergences from it. The general outcome from the whole, and the contribution brought through each province to the total result, will appear only after such a comparison. Social and political forces of different kinds, anT~coTlibined in various ways, operating both upon the proprietors and the people of the provinces, produced the final result. In order to show exhaustively what the result was and why it was, all the sources of the history of the period, so far as they relate to the provinces in question, might well be brought into requisition. All, however, that can now be done is to indicate some of the leading phases of the process. A* "^ By tl^j? MaryVrid fiha^^^] which reveals as distinctly as
any the characteristics of this form of grant, the patentee, his heirs and assigns, were given all and as ample rights, jurisdictions, and immunities within the limits of the prov- ince, as were or had been enjoyed by any bishop of Durham within his bishopric or county palatine. This also Ts~ Hie meaning of the statement that Lord Baltimore and his heirs were made the " true and absolute lords and proprietaries " of the region. The territory granted was, moreover, expressly made a province, a name was given to it, and it was declared that it should be independent of all other provinces.^ The fact that the grant was made to Lord Baltimore, his heirs and assigns, shows that it was heritable with power of aliena- tion in the grantee. It couTd be leased, sold, or otherwise disposed of, like any estate of land;" arid in the case of other proprietary grants such transfers were common. It was pro-
^ This separated it from Virginia.
CHARACTERISTICS OF LATER PROPRIETARY PROVINCES 9
vided that the proprietor, though tenant m chief, should CHAP, hold by socage, paying annually a nominal rent to the ting. The province was made subject to the king's sovereign con- troU and .all itA iTilifthiffti^frfl Wflr^ ]t^^« Tjfipftmfln. They retained the right to buy, receive, and hold lands, and corresponding to this the proprietor was empowered to grant or lease the Imds of the province to settlers in fee simple or fee taiT The operation of the statute qum emptares within the prov-
^""^ ^*^^ «"?Pf|"^f^f^i °^ °° ^^ QHrnif. r,i QnViinfftnHatJ^Tl^ and in
addition it was_^£res8ly provided that grants should be held of the proprietor and not of the king. Upon the estates thus bestowedi power was given the proprietor to erect manors with manorial courts and view of mmk-pledge. These were the seigniorial or territorial rights and powers, so far as they were expressed in the charter. Few of them, and those not the most characteristic, appear in the patents issued to cor- porations. Connected with them more or less closely was the right to transport colonists and their goods to the prov- ince, and to carry on trade with the settlers. In the exercise of this power harbors were to be erected, where exclusively the business of import and export should be carried on, while taxes and subsidies imposed at the ports were reserved to the proprietor.
But governmental powers, or the minor regalities, were~1 i also bestowed on the proprietor in full measure. He was ^ authorized to legislate through an assembly of the freemen concerning all matters of public interest and private utility within the province. The laws thus passed should be pub- lished under the proprietor's seal, and executed by him on all inhabitants of the province, and on all going to and pro- ceeding from it, either to England or to foreign countries. The right to issue ordinances was bestowed in such a way as to supplement the legislative power, and, under the gen- eral limitations specified in the act 31 Henry VIII, c. 8, concerning proclamations, it was to be used for the preserva- tion of the peace, and the better government of the people, when there was not time to call the deputies together. The proprietor was given authority to inflict all punishments, even to the death penalty (^haiUe jtistice)^1ixid to parSon
10 THE PKOPRIETARY PROVINCE IN ITS LATER FORMS
PART every crime which he could punish. As the statute of ™' J Henry VIII limiting the independence of the counts palatine
did not extend to plantations, Baltimore was empowered to establish courts and appoint all officers, judicial and others, who were necessary for the execution of the laws. He was also given the right to bestow titles of honor, erect towns and boroughs, and incorporate cities. The powers of a captain general were given him, with authority by proper means to arm and train the inhabitants, and lead them in defensive war. Closely connected with this was the right to execute martial law for the suppression of rebellion. The advowson of churches and chapels, the right to found these and to cause them to be consecrated according to the ecclesi- astical laws of England, was also bestowed. The language used apparently excluded the consecrating of other than Anglican churches. The organization of the government was left wholly to the proprietor. The only limitation on the legislative and ordinance powers was, that the enact- ments and orders issued should be consonant to reason, and as agreeable as might be to the laws an^ rights of England. No provision was made for the submission of the acts of the legislature to the king, or for appeal to the English courts, though cases could probably be removed into those courts under the forms and conditions which of old had applied to the palatinates. Moreover, the right to hear appeals existed by virtue of the sovereign power of the crown, and the right to claim its advantages belonged to the subject by common law. Finally, following in the strictest manner the principle V. of immunity, the king expressly renounced the right to levy taxes upon the province. He declared that he would not levy any tax or contribution on the persons, lands, or goods of its inhabitants, either in the province or in the ports of the same. So far as American charters are concerned, this feature of the grant is unique. In general it is true that the provisions of this charter concerning government are much more full and precise than those of the earlier charters to corporations, those documents being mainly concerned with the internal organization of the companies, and containing nothing specific concerning the relations between the com-
CHAKAGTERISTICS OF LATBB PROPRIETARY PROVINCES 11
panies and their colonists. The existence of colonial assem- chap. blies is first mentioned in the later proprietary charters. v_^*^
In their provisions the charter of Maine and that of Caro- lina, except in the point last mentioned, differ only in slight dStScils from the Maryland patent. The Carolina charter provided for a board of eight proprietors, but as they were not incorporated, no regulations as to the way in which they should hold their meetings appear. In the grant of Maine to Sir Ferdinando Gorges the way was left open for the^roper exercise of royal control by the provision that in matters of government the province should be subject to the regulations issued by the board of commissioners oT planta- tions, which had been created in 1634. By implication in the Carolina charter the right of the colonists to appeal to the English courts was guarantied in the clause provid- ing that they should not answer in any courts outside the province, except those of England. Each charter had special provisions concerBing religion, and to an extent also con- cerning trade. The charter of New York was brief, but it outlined the salient features of the palatinate. It made express provision for appeals, but included no reference* to a legislature.
The charter of Pennsy^lvania was granted late, after some of the defects in the proprietary system EaiTbegun to appear. These arose from the difficulty of enforcing royal control, so as to secure the trade interests of the mother country and the defence of the empire. Hence the points in which Penn's charter differs from the earlier patents have reference mainly to relations with the hpgae government. The right of the inhabitants of the province to appeal to the king was expressly guarantied. It was provided that, within five years after their passage, all acts of the general assembly should be submitted to the king for his acceptance or re- jection, and that, if they were not rejected within six months after presentation, they should stand. The reasons, so far as mentioned, which should justify rejection, were incon- sistency with the lawful and sovereign prerogatives of the \ king and with the faith and allegiance due to the govern- ment of the realm. The proprietor was also required to
12 THE PROPRIETARY PROVINCE IK ITS LATER FORMS
PART keep an agent resident in or near London, so that he might ^^^' J appear at courts to answer any complaints against the pro- prietor and pay damages. If for one year there should be no such agent, or if for a year he should neglect to answer for penalties, it was declared lawful for the crown to resume the government of the province and keep it till payment should be made. The king also agreed to levy no tax on the province without the consent of the proprietor dr^chief governor, the consent of the assembly, or by act of parlia- ment. Thus the possibility that parliament might tax the colony was clearly recognized. This group of provisions gives a completeness to the Pennsylvania grant, so far as relations to the home government are concerned, which appears in no other charter. Such being the case, there was no need of specifically guarantying to colonists the rights of English subjects. Finally, the absence of any clause authorizing the bestowment of titles of nobility is suggestive of the political views of the Quaker proprietor. The difference between the institution sketched in these charters and the corporate colony is very clear. When a proprietary province of this type was created the govern- mental machinery of the palatinate was not removed intd America, as was done in the case of the corporation of Massachusetts. That would have been useless, to say noth- ing of its impracticability, for, in the case of the proprietor- ship, the grantee was a natural person, and the form of the province could not be affected by the place of his residence. Its organization would be the same, whether he resided in England or in the territory which had been granted to him. The spirit also in which the powers of the proprietor were administered would not necessarily be modified to a great degree by his residence in the province. As a matter of fact, the American proprietors often spent a part of their time in their provinces, and part in England. When in their provinces, it would be less easy to reach them by writ than if they were in England ; but power was trans- mitted, held, and exercised in the same way, whatever might be the place of residence chosen by the proprietor. As the proprietor was the grantee of power, and all was derived
CHARACTBBISTICS OF LATER PROPEIETABY PROVINCES 13
through him, however intimate might be his relation to the CHAP, province, he could never lose his identity and become merged ^ j in it, as was the case with the corporation, when it was re- moved into the colony or created on the place. Whether resident in England or in America, he always remained dis- tinct from the province, in the same sense as that in whicl the king is distinct from the kingdom. He held strictly by hereditary right, and the powers to which he was entitled wereliot derived from the province or its inhabitants. They were not the grantees, as might be true in the case of the corporation, and therefore could neither hold land nor exercise political rights except as the result of conces- sions made by or through the proprietor. The proprietor, and not a general court, or general assembly, was the origin and centre of the provincial organism. Authority proceeded originally from above downward, though its exercise was greatly modified and limited by influences which came from below upward. The province in this form was a miniature kingdom, and the proprietor, if he chose to exercise his powers, was a petty king. To be sure, the powers which he exercised were not sovereign, but, as Coke said, they were kinglike, and they were used under the same forms as if tliey had been sovereign. In all of the later proprietary provinces where a serious effort was made to uphold the power of the executive, we find on a small scale and with modifications a reproduction of the governmental forms and usages of the kingdom of England.
The province, therefore, was not democratic, and, if it re^ mained true to its essential nature, it could not become so. But its nature could be obscured and changed. As an institu- tion it could be changed by the development within it of ele- ments of a popular character, and by their encroachment upon ^ the powers of the proprietor. The legislature might gradually limit or draw to itself the powers of the executive, and thus come to exercise a controlling influence. English institu- tions in their growth since the Norman period have passed through a development of that nature ; and in the American --, provinces an^nalo^ous process may be seen at work, though f in them the time required for its unfolding was much shorter c
14 THE PBOPBIETABY PROVINCE IN ITS LATEB FOKMS
PART than in the parent kingdom. The history of the American provinces is emphatically the history of the adaptation of English institutions to the conditions of life on a newly settled continent. There the tendencies favorable to the democratic element in the constitution of the province were stronger than they were in England prior to the close of the eighteenth century, while the obstacles to its development were less powerful than in the mother country. Through migration to tile New World the bonds of custom were re- laxed, and freer scope was given to innovation. Those who became colonists came largely from tlie classes which were least wedded to the aristocratic and monarchical institutions of "the Old World. The political and social privileges which were attached to land-holding in England could never be re- produced in a new country, and under an exclusively socage tenure. There was necessarily far less social^ inequality in the colonies than in the old countries, and the proprietor I could scarcely hope that an aristocracy would develop and become a support for his power. So sparsely were the colonies settled, that large estates, even where they existed, had relatively few tenants, and hence yielded only a small income. The proprietor, with his hundreds of thousands of acres, might be and often was land poor. He, moreover, possessed none of the dignity which belongs to the office and title of king~^ He himself was a subject, and, whether peer or commoner, inviolability attached to his person in no higher degree than it did to any of his class among the population of England. The church could awaken for him only the re- spect which attaches to magistracy. The profM^djjialso, in any struggle upon which he was forced to ente^for the maintenance of his claims, could command only the resources of a single family or group of families. Sometimes these resources were pitifully small, and were even the subject of litigation in the bankruptcy court. In any event they were likely to be too limited to admit of great displays of political energy, to say nothing of military power. These all are causes and tendencies which facilitated the democratizing of the American province, which made the process shorter and more certain of ultimate success than in the European king-
(
CHABACTEBISTICS OP LATBB PBOPRIBTABY PROVINCES 15
dom. But it took the entire colonial period of our history CHAP, and a revolution at its close to complete this course of de- velopment, and thus to transform the province into the democratic commonwealth. A transformation which in the C€«e of the corporate colony was virtually effected by a single act, required for its completion in the province a century and a half. This of itself is adequate proof of the radical differ- ence between the two forms of colonial government which we are studying. The province could not be democratized until the proprietor was gotten rid of, and that object was not attained until independence of England was declared.
;^:^>
CHAPTER II
THE LAND SYSTEM OP THE LATEB PROPRIETARY
PROVINCES
The most prominent feature of the New England land system was the town grant, which in every case became the territorial basis of a group settlement. Though grants were made by the general court to individuals, they were the ex- ception rather than the rule. The result was that the landed estate of nearly every individual in New England was located in one or more towns, and was subject to the regulations which were made by towns for the management of land* The territorial affairs of the colony were largely administered through the towns as agencies. Land passed from joint con- trol to individual ownership chiefly by means of town allot- ments. The towns came nearer to performing the function of proprietors than did any other administrative bodies in New England.
In the corporate colonies, moreover, the characteristic elements of the fief were lacking. The quitrent does not appear as a distinct form of income, and land was not ex- tensively leased. The result was that the tenement or hold- ing, which was so characteristic of English land law, was practically obliterated, and an allodial system was substi- tuted. Had the New England' governments sought revenue from the land in the form of rents, this result could not have followed. A system of tenure would have been perpetuated, and the general court would have acted as a proprietor. As it was, the court avoided the private legal attitude toward land, and kept itself well within the range of public law. The only revenue which it sought from land was in the form of taxes. THIs is one of the most notable consequences whicfiTesulted from the founding of the corporate colonies of New England.
16
LAND SYSTEM OP LATER PEOPBIBTARY PROVINCES 17
The territorial relations within the provinces were quite unlike this. Though the provinces, in this as in all other matters, exhibit much variety of practice, the distinction be- tween them and the corporate colonies, when considered ter- ritorially, is clear and indisputable. The proprietary grant was an estate of inheritance, descending to heirs. The atti- tude of the proprietors toward their provinces, both legally and actually, was that of landlords toward a private estate. They were investors, speculators if you please, in land. They advertised fof"^ettIers, andTin doing so, ani ever"" pres- ent motive with them was the desire to secure more private income from their land. Like the Duke of York, they migKt watch carefully the trade of their provinces, in order that revenue from that source might be increased. Like William Penn, they might be idealists. But investors in land they must be by virtue of their proprietary relation. This, when combined with powers of government, made them territorial lords, and in order to collect their quitrents and fines on alienation, they had to institute a system of terri^rial administration.
Such a~ system of administration Virginia had while the London company was its proprietor. Had the compwiy con- tinued to exist until individual property had become firmly established within the province, a land system like that of the other proprietary provinces would doubtless have de- veloped in Virginia. But in one respect Virginia under the company would have differed from the provinces with indi- vidual proprietors or proprietary boards; and in this respect its position would have resembled that of the corporate colonies of New England. As a province, whosej)rqprietor was a corporation, it would have passed to successors, and would not have been liable to the conditions of natural in- heritance. As long as the corporation continued, the prov- ince was not likely to have been divided or the continuity of its existence broken by a sudden change of owners or rulers. In Virginia, as well as in the corporate colonies, these condi- tions have furnished a suggestion of the territorial, as well as the political, unity of the modern state. " ^"^
Provinces whose proprietors were natural persons did not VOL. n — c " ^*
18 THE PROPRIETARY PROVINCE IN ITS LATER FORMS
PART enjoy this guaranty. Not only might the entire province V ' J be sold, mortgaged, leased, devised, or conveyed in trust, like a farm or homestead, but simply by the process of inheritance it might be divided among any number of heirs.
The Duke of York, in 1664, sold New Jersey, to .Lprd Berkeley and Sir George Carteret, and the sale was effected by deeds of lease and releaseT^ By that act the province which the duke had just received from the crown was divided, and his territorial rights over a part of it went to the purchasers. But this was only the beginning of the pro- cess of subdivision. By subsequent agreements and convey- ances not only was New Jersey itself divided, but the number of proprietors of each share was very largely increased. In the case of West Jersey this was effected by the creation of trusteeships, and by the admission of settlers to the position of proprietors. The proprietors of East Jersey were in- creased from one to twenty-four by successive sales of indi- vidual shares of the province. So large became the number of proprietors that it was necessary in each of these "pro v- inces to chbose a council or committee for the management of their affairs. The history of New Jersey suggests the process by which the fiefs of continental Europe were sub- divided.
In 1708 William Penn, for X6600, naqrtgaged.Efinosylyania to Henry (rouldey, Joshua Gee, and seven other individuals in England. Wlien, in 1718, Penn died, the mortgage had not been entirely paid off. In his will he devised the gov- ernment of the province and territories to the Earls oF Oxiord, Mortimer, and Powlett and their heirs in trust, to dispose thereoFto the queen or any other person, as advan- tage should dictate. To his widow and eleven others, part resident in England and part in America, he devised all his lands, rents, and other profits in Pennsylvania, the territories, of elsewhere on the continent, in trust with instruction to sell or otherwise dispose of enough to pay his debts. Of that which remained, all except thirty thousand acres should be bestowed by the trustees on the three sons of the founder
^ Learning and Spicer, Grants and Concessions, 8 ; N. J. Archiyes, L 8, 10.
liAND SYSTEM OF LATER PROPBIETABY PROVINCES 19
by his second wife — John, Thomas, and Richard Penn. All the personal estate and arrears of rent he gave to his wife for the equal benefit of herself and her children, and her he made sole executrix. As, after his father's death, William Penn, Jr., the heir-at-law, claimed the government of the province, some delay arose, resulting in a suit in chancery. It was, however, finally decided that the sons by the second marriage should inherit bothjthfi territorial and governmental rights as designated in the will.^
By transfers and the process of natural inheritance the personnel of the board of Carolina proprietors had been changed, and in the case of some seats repeatedly so, when ^^^ in/1729^he act of parliament was passed establishing an \n x agreSTHent with seven of their number for the surrender of their title and interest in the province to the crown.^ Here, as in the case of other provinces with multiple proprietors, the colony might upon agreement have been divided. The undivided shares might at any time have become divided shares. That the single proprietor could do the same has been shown by reference to the origin of New Jersey. That this did not occur in the history of Maryland is due to good fortune and good management. In the American proprietary provinces there was the same possibility of the indefinite subdivision of territory which in the middle age welmd working irself out in the states of continental Europe. These general observations will open the way to the more specific discussion of the proprietary land system.
In all the later proprietary charters, except that of New \ York, the operation of the statute quia emptores was expressly suspended, so far as relations between the proprietor and his immediate grantees were concerned. By virtue of this pro- vision each proprietor, or board of proprietors, as mesne lord, became the centre from which originated an indefinite num- ber of grants. These were held directly of the proprietor, and through him of the crown. In practice the same was true also in New York, although no reference was made to the statute quia emptores in its charter. In the provinces of
1 Proud, History of Pennsylvania, IL 115-124. * N. C. CoL Recs. IIL 34 e^ seq.
20 THE PROPRIETARY PROVINCE IN ITS LATER FORMS
PART this class it was left to the proprietor to make grants on
• J such conditions as he chose — limited by the nature of his
own patent, — to erect or permit the erection of manors, to
devise the machinery necessary for surveying, issuing, and
recording grants and collecting rents.
Preparatory to the exercise of the power thus bestowed in the charters, the proprietors issued so-called " concessions,'' or ^^ conditions of plantation," stating the terms on which they woiild' grant lands to colonists. As settlement pro- gressed these were modified, either by new concessions or by instructions to the governors. These were not infre- quently accompanied by statements of the physical advan- tages of the country and relations of recent voyages thither, all intended as a form of advertisement for settlers. Lord Baltimore issued conditions^ of plantation in 1633, 1636, 1642, 1648. The earliest issue contained offers made to the first body of settlers before they left England, which when accepted became a contract between them individually and the proprietor. It provided that each free planter should I pay the cost of his outfit and transportation, which amounted to about~220. To every married man who thus provided for the voyage, and for that of his family, the proprietor promised one hundred acres of land for himself, and one hundred for his wife, if she accompanied him ; one hundred acres also for each adult servant, and fifty for each child under sixteen years of age. Two thousand acres of land should also be given to each ad ven tureF who, in the year 1633, should take into the province, for the purpose of settlement, five men between the ages of sixteen and fifty.^ In 1636 thesfe condi- tions were extended so as to apply to settlers who had arrived subsequent to 1633. One thousand acres were now promised for every five men whom a colonist or adventurer brought over. By each new issue, which came in the form of a proc- lamation or an instruction to the governor, former conditions were amended or revoked. In 1642 the amount of land promised to each individual settler of adult age was reduced
1 Calvert Papers, I, 138. Md. Arch., Proceedings of Council, 1636-1667, 47, 99, 223.
a Proceedings of Council, 1686-1667, 47.
LAND SYSTEM OF LATER PROPRIETARY PROVINCES 21
from one hundred acres to fifty acres. The conditions of CHAP. 1648 were especially elaborate, and provided at lensrth for ^^' the erection of manors, the reserve of one-Rixth ^f ^agh manor as demesne, and the grant of the remainder by the lord' to tenants under such terms as should not infringe on the jurisdrcfibnT 01 the proxmetox.QiLPreyent his collecting the rents reserved in the original patents. These privileges
- . ., . J.I 11 II «ii I W I fc III I i o
were to obtain in every grant of two thousand acres, though under earlier conditions grants of one thousand acres might carry with them manorial rights.
The conditions of plantation involved simply the renewed application of the system of head rights, which obtained in ^. proprietary Virginia and continued in that province long after it came under the government of the crown. As land was the largest and most important factor in production over which the proprietor had control, he could not do other- wise than dispose of it somewhat freely for_the_purpo8e of encouraging emigration. The system served this purpose well throughout the early history of all the provinces." StiU these rights were subject to transfer, and fraud waa.JSQine- times attempted or committed^ in the proof of claims. which were alleged^'Eo'Eave originated under them. For this reason, / among othefsiTii f683, by proclamation of the proprietor, this method of obtaining land in Maryland was abolished. Henceforth land could be procured only by the payment of purchase or caution money, the sums being payable partly in tobacco and partly in specie.^
The concessions which were issued by the proprietors of Carolina, of the Jepseys, and Pennsylvania, differed in no essential particular^from those whicHTTiad as their object the encouragement of colonization in Maryland. In 1663 the proprietors of Carolina offered one hundred acres of land to every " present undertaker," fifty acres for every man ser- vant, and thirty acres for every woman servant whom he should bring or send mto the province.8 When, iiA665^the Barbadians undertook to settle at Cape Fear, the proprietors
1 Bruce, Economic History of Virginia, 1. 518.
3 Md. Arch., Proceedings of Council, 1667-1688, 801, 394.
* N. C. Recs. L 46.
22 THE PROPRIETAEY PROVINCE IN ITS LATER FORMS
PART reached a special agreement with them.^ It provided that five, hundred acres of land should be granted in return for every thousand pounds of sugar which were subscribed toward the enterprise, and more or less in proportion to the amount of subscriptions. At the same time the conditions which were to apply to the entire province were prescribed in the Concessions and Agreement of 1665. In these pro- vision was made for an elaborate system of head rights, varying with each successive year between 1665 and tEe close of 1667. Within the county of Clarendon the maximum for freemen should be one hundred acres and the minimum fifty acres. The larger amount should be bestowed on those wKo arrived in 1665, and the smaller on those who should delay till 1667. In Albemarle the corresponding offers were eighty and forty acres respectively. The Fundamental Con- stitutions, though they designated the areas of the baronial grants alone, were in the nature of a great territorial con- cession for the entire province. During the period when efforts were being made to put them into force, various instructions concerning grants of land were issued by the proprietors.
In New Jersey the Concessions and Agreement were put into force in 1665. Though the document was an almost verbatim reproduction of that issued the same year by the Carolina proprietors, in the provisions concerning land the grants offered in the form of head rights were larger by one- half than those which were intended for Clarendon county in Carolina. In both provinces they were modified or wholly abandoned by later instructions, while the later proprietors of both the Jerseys issued a variety of conces- sions of their own.
William Penn, as soon as he had secured the charter of his province, ottered land for sale in "proprieties" of five thousand acre's ~ each;" the price of each to be £100. Smaller estates of two hundred acres each would also be gfranted, subject to the immediate payment of a quitrent. Masters should receive fifty acres for each servant they brought over, and fifty acres should be given to each servant
1 N. C. Recs. I. 77 et seq.
^
LAND SYSTEM OF LATEB PEOPRIBTABY PROVINCES 23
when his term of service expired.^ The " first purchasers ^ were those who took up land under these and other condi- tions which were issued before Penn left England on his first visit to the province. In an elaborate series of " con- . ditions," which were issued in July, 1681,^ the proprietor/ sought to regulate the granting of land both in town and ' country. In one clause of these Penn insisted that every grantee, within three years, should begin the settlement an improvement of his land, or it might be granted to others A condition like this, whenever possible, was insisted on b all proprietors. Penn was always careful to assert his righ to dispose of the land of his province on such terms as h chose to make with would-be settlers, and this led to man changes in the terms of grants. These were occasioned not^ only by differences of location and soil, but by the wishes of both parties to the contracts.^ The same course was fol- lowed by all proprietors, and in each instance it furnishes an additional illustration of the fact that the land of the prov- ince was always regarded as a private estate. -V^he course of development in New Yo^ differed some- what from that of other provinces, owing to the fact of its early occupation by the Dutch. The settlement of Dutch in New Jersey, and of boTh Dutch and Swedes on the Delaware, had a slight modifying effect there also. Penn .confirmed titles of this origin,* so far as they lay within his province. New Netherland, as will be shown at greater length in a subsequent chapter, was a Dutch proprietary province, of which the West India company was the immediate proprie- ( tor. The company may be said to have inaugurated a land system in New Netherland with the issue, in 1629, of the Freedoms and Exemptions. They were the equivalent among the 0utch of ITe Conditions of plantation which were issued by the English proprietors. Through them provision was made for the extension of settlement outside of Manhattan island and its immediate vicinity. The patroonships and
1 Shepherd, Proprietary Goyemment in Pennsylvania, 18.
* Hazard, Annals of Pennsylvania, 616.
* Hoston, Land Titles in Pennsylvania, 6, 63.
* Ibid. 26.
]
24 THE PROPEIETARY PROVINCE IN ITS LATER FORMS
PART colonies which originated under the authority of the Free- doms and Exemptions, together with villages and very many small grants, the English found in existence when they took possession of the province. They were, therefore, not com- pelled to advertise for settlers, as was the case when the colonization of a province had to be begun. Both in 1664 and in 1674 Dutch titles were confirmed, and on both occa- sions there was a general renewal of patents. By this means tenure of the English proprietor, and afterward of the crown, was substituted for the very similar Dutch tenure, and the change was accompanied by the administration of the oath of allegiance to the king.^
By confiscating the estate of the West India company — one of Governor Nicolls's earliest acts — the proprietors se- cured all of the unoccupied land in the province. Conditions for new planters were issued by the governor, in which regu- lations were prescribed for the purchase of land from the Indians, temporary exemption from taxes and settlement of towns. Special reference was made to land at Esopus, as being ready for occupation. ^ When, after the Dutch reoc- cupation, Andros became governor, he was ordered in the assignment of lands to select his rules both from those which were followed in New England and from those which ob- tained in Maryland.
Upon the conditions of plantation, and the extent to which they were observed, depended the size and variety of estates within the provinces. In general, estates were much larger in the provinces than they were in the corporate colonies. The few score of acres which, as the result of a series of town allotments, ordinarily came into the possession of a New England farmer, were almost insignificant when com- pared with the princely estates of the Dutch patroons, with the seigniories and baronies t^hich the proprietors of Carolina intended for themselves and their provincial nobilTty, with the manors which the Calverts or Penn reserved for them-
1 N. Y. Col. Docs. II. 260 : N. Y. Col. Laws, I. 44, 67, 80, 93 ; State Library Bulletin, No. 2, General Entries, I. 161.
2 Smith, History of New York, ed. of 1829, 1. 36. This does not appear in any collection of sources.
LAND SYSTEM OF LATER PROPBIETARY PROVINCES 25
selves or granted to their wealthiest colonists. The territory CHAP, within the New England colonies was limited, when com- ^ ^
pared with the broad stretches which were included in many of the proprietary grants. Moreover, though exceptions ap- pear in the cases of a few trusted magistrates and others, yet generally the system of town grants in New England necessi- tated small estates. We have already seen how it tended toward agrarian equality.
The proprietary policy did not impose so strict a limita- tion. The system of head rights was elastic, and it could be made increasingly so by more or less illegitimate traffic in them.^ In New England there was no opportunityTor proprietary reserves, but in the provinces they, with manors, occupy a large place in the projects of all the proprietors. In Maryland, prior to 1676, about sixty manors were erected, containing on an average about three thousand acres each.^ As the special manorial privileges which accompanied those I grants were exercised in only a few cases, the great majority \ of them were only large freehold estates. ^
In 1665 the proprietor issued instructions that in every 7 county at least two manors, each containing not less than six thousand acres of land, be surveyed and set apart as reserves for himself.^ These, in the beginning, were placed under stewards, who leased them in parcels to tenants. Re- serves were also madl^ by the proprietors for the purpose of securing control of unusually rich land or land thought to contain mineral deposits, or in order to confine settlement to parts of the province where it was thought desirable that it should be made. Though parts of the proprietary reserves were leased, they were not surveyed or named, as were the manors.* As all land was liable to escheat, measures were \ * adopted to secure the rights of the proprietor in this relation. ^ \
In the projects of the Carolina proprietors manors and proprietary reserves occupied a leading place. In the pro- posals of 1663, which were intended for Cape Fear, the board
* Brace, Economic History of Virginia, I. 619.
* Mereness, Maryland as a Proprietary Province, 62, 106.
* Kilty, Landholder's Assistant, 06 ei seq.
* Md. Arch., Correspondence of Governor Sharpe, I. 426.
26 THE PBOPRIETARY PBOVINCB IN ITS LATER FORMS
PART announced that it would reserve twenty thousand acres of
TIT • — ■
J land near each settlement that might be formed, and this should be laid out for the proprietors by their agents in such a way as not to incommode t&e colonists. Later in the same year they announced that a tract of the same size should be located in Albemarle, near a town which it was proposed to found there. " In the agreement of 1665 with the Barbadians, provision was made that the land of the counties of Claren- don and Albemarle, exclusive of cities, towns, and lots adja- cent thereto, should be divided into tracts varying from twenty-two hundred to twenty-two thousand acres each, and one-eleventh of these by lot should be reserved for the pro- prietors. * In the scheme of the Fundamental Constitutions th*e eight seigniories in each county — each consisting of twelve thousand acres — were intended to be proprietary reserves. The eight baronies in each county were to be bestowed on the provincial nobility. In order to keep these estates together, it was provided that, after 1701, neither proprietors nor provincial nobles should have the power of alienating or dividing their estates. Tracts of more than three thousand, and less than twelve thousand, acres might be erected into manors.
To the dozen or more individuals who in Carolina were created landgraves patents of a general character^ were issued, calllrig In each case for a grant of forty-eight thou- sand acres. The same was done in the case of those who were created caciques, each patent in that case calling for twenty-four thousan3 acres. In many cases these grants were never located or surveyed, and later their legality was for this reason denied. The seigniories, likewise, dwindled to ordinary proprietary reserves, taking in a few instances the form of a project for alarge plantation. In one instance an attempt was made to locate such a grant within one of the colonies.^ Ashley, Carteret, and Colleton, who had formed a partnership for the purpose, ordered that forty-five hundred acres should be reserved at Port Royal, which they intended to people with servants. The reserve was actually
^ Smith, South Carolina as a Royal Proyince, 35. ' Shaftesbury Papers, 126 tt seq.
LAND SYSTEM OP LATBB PROPRIBTABY PROVINCES 27
made at Albemarle Point, and it apparently contained only CHAP, four himdred and twenty acres.^ We lose sight of it when ^ ^^ ^ the removal was made to Oyster Point, or Charlestown. Later the Earl of Shaftesbury began a plantation at Locke island, but in less than a year it was abandoned.^ We hear of various grants ranging from one thousand to two thou- sand acres each ; but of enormous estates, such as were con- templated in Locke's scheme, none took permanent form.
In New Jersey about fifteen thousand acres of upland and meadow near the junction of the Hackensack and Passaic rivers were granted to Captain William Sandford. Adjoin- ing it on the north another large grant was made to Captain John Berry. A large purchase which had been made in the Dutch period, and which lay west of the Raritan,^ was con- firmed. But neither these, nor other similar grants in New Jersey, were organized as manors. The proprietors, however, announced that they would reserve to themselves one-eleventh of all grants.
The sale of East Jersey in 1682 by the heirs of Sir George Carteret to William Penn and his eleven associates * was fol- lowed by the settlement of the valley of the Raritan. But before their plans for this and for the building of the town of Perth Amboy were completed, each of the twelve proprietors sold one-half of his share in the province to a new associate, thus making a board of twenty-four for East Jersey. As many of the new proprietors were Scotchmen, an appeal for . colonists was specially addressed to that nation. Various ' new concessions were published, the object of which was to open the way for the grant of moderate-sized freeholds to colonists, and to secure for the proprietors ample estates in the province. The grants ranged in most cases from three hundred to two thousand acres each. Many of them were made to proprietors, and to individuals who were directly associated with them in the enterprise. Both the English
1 Shaftesbniy Papers, 269, 371. Also the map.
a Ibid. 43S-447, 468, 473, 474 ; Rivers, 387.
* Whitehead, East Jersey under the Proprietors, 54, 55 ; Winfield, Land Titles in Hudson County ; East Jersey Deeds, Liber I, calendared in N. J. Arch. XXI. 6, 7. * Whitehead, 102, 314 et seq.
28 THE PROPRIETABY PfiOVINCE IN ITS LATER FORMS
PART and Scotch proprietors made reserves for themselves,^ in- dividually and as distinct groups or partnershlpsr* Suc- cessive divisions of unimproved land were made among the proprietors in 1686, 1698, 1702, 1739, 1740, and 1744.^ Each proprietor sought to plant colonists, either as servants or freeholders, on those parts of his share which he did not choose to retain. By means of sale and inheritance very many changes of ownership took place in the proprietary shares. Many of them were divided and subdivided, till in some cases they appear as a thirty-second or a fortieth of an original twenty-fourth of the province.*
West Jersey consisted, at the beginning, of Fenwick's col- ony, and of the undivided nine-tenths of the province which was held by three trustees. Fenwick's colony, which com- prised one-tenth of the province, was founded among the sparse settlements of the Dutch and Swedes near Salem. It had a distinct land system, which was essentially that of a manor. With the nine-tenths the trustees — Penn, LawneT and Xucas — dealt more systematically than did the East Jersey proprietors with their share of the original province. In 1677 an elaborate set of Concessions and Agreements was prepared, mostly by Penn himself, containing regulations for the granting of land and organization of government in West Jersey.* It was provided that this business should be actu- ally done by commissioners acting under appointment from the proprietors, assisted by such subordinate officials as might be necessary. The land along the east bank of Delaware river from Assunpink creek ^ to Cape May was divided into ten equal parts, of which one went, as has been stated, to John Fenwick. Each of these parts was known as a tenth. They were gradually to be taken up as the number of settlers
1 N. J. Arch. I. 464-469 ; Whitehead, 186 n.
2 Whitehead, 146 n., 162 (map).
* The entire list of conveyances and inheritances, showing the descent of title among the proprietors until 1746, is given in Schedule No. n, annexed to the New Jersey Bill in Chancery. Instances of such descent are given in the text of the bill. In N. J. Arch. I. 628, is a list of the proprietors with their shares, as they were in April, 1687.
* N. J. Arch. I. 241 ; Grants and Concessions, 382.
* Smith, History of New Jersey, 131.
LAND SYSTEM OF LATER PROPRIBTAEY PROVINCES 29
increased. To this end each tenth was to be divided into CHAP, ten prpprifiti^) which might be disposed of piecemeal, or all ^ j
together, for the founding of what in Fenwick's case, and in similar cases in other provinces, was called a colony. Pro- vision was made for the customary system of head rights, varying in extent with the date of the claims. The commis- sioners were ordered to reserve proper sites for towns, and to see that the towns were regularly built. Settlement within a specified time was required, later commissioners insisting that it should begin within six months after the survey.
The first considerable groups of colonists which came to West Jersey were Quakers from Yorkshire and London.^ The Yorkshire people selected for their place of settlement a tenth which lay immediately below the falls of the Delaware. The colonists from London first established themselves in a tenth near the later town of Gloucester. But, subsequently, at the request of the Yorkshire proprietors, the Londoners removed up the river, and the two companies united in the settlement of the town of Burlington.
William Penn made provision from the outset for grants of considerable size within his province. In the " conditions and concessions'' which he issued in England, and which were intended for the "first purchasers," the purchase of estates of a thousand acres or more was regarded as likely in many cases to occur."" Those who should take up five thousand acres or more might be organized into townships. For every hundred thousand acres which were granted the proprietor announced his intention of reserving ten thousand for himself.^ The reserves in Pennsylvania were therefore known as proprietary tenths. A considerable number of estates from this land were organized as manors, though none of them ever possessed manorial courts. A few grants, as for example that to the Free Society of Traders, were also known as manors, but they were never really anything more than large estates of land on which lived certain rent- paying tenants.
1 Smith, 92.
> Shepherd, Proprietary Government in Pennsylvania, 18.
30 THE PROPRIETARy PROVINCE IN ITS LATER FORMS
PART/ The only fully developedmanors which ever existed wittun V ™'L the English-American coJonies were in New York, The 1^ institution was of Dutch origin, though it was perpetuated / by the English until, in the eighteenth century, it became a ( leading feature of the land system of that province. In the Freedoms and Exemptions, which gave rise to the system, provision was made for two varieties of grants — patroon- ships and colonies. All land within New Netherland, outside of Manhattan island, might be granted under one or other of these forms. At first, steps were taken which seemed I likely to make the patroonship — the large estate — the pre- dominant form of grant. Presuming that, as elsewhere, the patroons would prefer sites along the river courses, it was specified that their grants might extend for sixteen English miles along one side of a navigable river, or eight miles on each of both sides, and as far back into the country as con- ditions might determine. It thus appears that no exact limit was set to the size of these estates. The grants of land should be absolute, with the right of perpetual inheritance in the grantee, and should carry with them~"high~atid""imr— jurisdiction, fishing and milling rights, and liberty to dispose of the heritage by will. Adjacent lands might also be made use of by the patroons so long as they were not granted away by the company, and none could settle near their bounds without the consent of the patroons. The officials, free set- tlers, servants, cattle, and farming implements that were needed in the colonizing of these grants should be transported to New Netherland at specified rates in the ships of the com- pany, or, if these were lacking, in vessels sent under license by the patroons. For ten years the colonists should be free from taxes and customs, and the patroons themselves should be exempt for eight years, except from customs on fish caught on the coast of New Netherland and exported. Though subject in many ways to the control of the com- pany, especially in respect of trade and defence, the patroon- ships were intended to be centres of local government, and for that reason the lords were given the right to issue in- structions to their colonists, though these must be in harmony [ with the law of the company and of the province.
LAND SYSTEM OP LATER PBOPRIETABY PROVINCES 31
In the patroonships many of the features of continental CHAP, feudalism were reflected. They carried with them miore definite judicial powers than did any similar English grants, while specific provision was made for the banalities and for rights of trade. The Exemptions also contemplated estates which would be larger than any Virginia plantations, Mary- land manors, or Carolina baronies. They might easily reach the area of two hundred thousand acres each, while about fifty thousand acres was the maximum contemplated in Caro- lina grants, and eighty thousand or one hundred thousand acres in the Virginia grants. If many of them developed, they would certainly imperil the supremacy of the company, though they might well give rise to a certain type of colo- nization that was more vigorous and beneficial than any which rested mainly on the fur trade.
Immediately certain wealthy directors of the company secured grants, and the patroonships of Rensselaerswyck and Payoyia on the North river, and that of Swaanendael on the South river, were secured. The area of the first soon reached upwards of seven hundred thousand acres. In order to facilitate settlement two associations^ were formed by the patroons — Van Rensselaer, Godyn, Blommaert, and the I rest — among themselves and with other influential directors. ' One of the associations was to assume charge of Rensselaers- wyck and the other of Swaanendael. Neither De Pauw, nor his patroonship, was included. But in 1634," a settlement at Swaanendael having been destroyed by the Indians, the rights of the patroons on the South river were bought up by the West India company. Three years later Pavonia and Staten Island, with the small settlements which had been founded there, came again into its possession in the same way. Rensselaerswyck alone remained — now in the exclu- sive possession of the Van Rensselaer family — to contend with the company over its seigniorial rights. A few smaller patroonships were granted later ; but these soon disappeared and had no special influence on the development of the province. Owing to these events, toward the close of the period of Dutch rule the manorial influence declined and 1 0'Callaghan, History of New Netherlands L 126.
32 THE PROPRIETARY PROVINCE IN ITS LATER FORMS
PART ceased practically to exist in the southern part of the prov- ince. From time to time, however, both by Stuy vesant and by the early English governors, grants of considerable size were made. Some of these, notably Fordham, Pelham, and Phil- lipsburgh in Westchester, assumed the name and to an extent the organization of manors. Toward the close of the Dutch period the Van Cortlandt family began to build up its large estate. During the administration of Governor Dongan the first grants were made which resulted in the development of the Livingston manor. By these events the manorial system began again to assume a prominence in New York like that from which, since the dissolution of the early association of patroons, it had declined. The social and political develop- ment of New York has been deeply affected by the family alliances and the system of tenant right which, as the result of these grants, extended so widely within its borders.
Provision was also made in the Exemptions for smaller grants to private persons, who should settle in the provin?5e onTEeir own account or in the service of masters — not patroons — who lived in the Low Countries. With the consent of the director and council of the company in New Netherland, they might take up as much land as they could properly improve, and enjoy it, with the customary rights, as their own property. In the end this form of grant played a more important part in the development of the province than did the larger fiefs for which such detailed provision was made. In the Exemptions of 1640 greater stress was laid on the necessity of encouraging small grants than was done in the issue of 1629. Individual grants of moderate size, followed later by organized settlement, were multiplied at the western end of Long Island, on Staten island, and on the west bank of the Hudson, in the northern part of Man- hattan island, and in the region northeast of the Harlem river.
If we compare the provinces as a whole, it will be clearly seen that grants of moderate size vastly predominated within them. They were larger than the average estate in New England, but it will probably appear that the majority of them did not exceed one thousand acres in extent. In
LAND SYSTEM OF LATER PROPRIETARY PROVINCES 33
proprietary instructions we hear much of manors and large \ CHAP, reserves. But in many cases the bounds of manors were not y ' j surveyed, the rents of tenants who were settled upon them were not^coUedgd, leases were lost, and the estates fell into general neglect. In not a few instances they had simply a j nominal existence, no effort being made to settle or organize ; them under a system of lordship. As the province devel- ' oped and filled with population, the relative importance of grants of this kind steadily diminished. Varieties of soil and contour, dearth of settlers, lack of means and enter- . prise on the part of both proprietors and grantees, all com- • bined to defeat cut-and-dried schemes for the settlement of provinces, whenever they were put forward.
During the first decade of Maryland's existence the pres- ence there of Catholic priests involved possibilities in the management of land, as well as of religion, which were of considerable importance. The work of the priests among the Indians put them in the way of obtaining deeds from the natives for large tracts. The numerical and social strength of the Catholic settlers was a guaranty to them of support in a natural effort to procure large landed estates in the prov- ince for the Jesuit Order or for the church itself. But these hopes were crushed by the proprietor in the proclamation of 1648. In this was a provision excluding from its benefits all corporations, societies, fraternities, and guilds, whether tem- poral or spiritual, and forbidding any grantee, without license from the proprietor, to alienate land to such a body for any uses forbidden by the statutes of mortmain. In no other British- American colony was such a precaution necessary, but it kept the land law of Maryland in harmony with that of the mother country and of the other colonies. Though usually overlooked, it was really, for a Catholic proprietor, a concession as important as the more famous toleration act of the following year. The two acts had their origin in similar motives, and were complements the one of the other.
The private or strictly feudal income which was derived by proprietors from the land thus granted assumed the forms of quitrents, purchase money, fines on alienation, income from ferries, and port duties. The last two call for no'
VOL. II — D
34 THE PEOPRIETARY PROVINCE IN ITS LATER FORMS
PART special reference in this connection. So far as the author
III V ' J has been able to discover, fines on alienation were actually
enforced only in Maryland. The proprietary instructions of 1658 ^ in Maryland contained a requirement that, upon the alienation of land thereafter to be granted, a fine equal to one year's rent of such land should be paid. If this was not paid and duly recorded within one month after sale, the alienation should be void. The regulation continued in force throughout the colonial period. After 1671 the fines became payable in tobacco at 2d, per pound. They con- tinued to be payable in this form until 1733, after which date they were received in money. In the other provinces the only restraints on alienation were the few which were intended to prevent the division of manors ; and they seem in most cases to have been inoperative.
In the early history of the provinces, where it was desira- ble to give the maximum of encouragement to colonists, land was rarely sold. In New Netherland and New York, in the Carolinas and New Jersey, during the period of which we are speaking, a price seems never to have been put upon the land. Land was sold in Pennsylvania from the very first.^ As soon as he had secured his title, Penn offered for sale shares of five thousand acres at <£100 each. After 1684 this land was also to be liable to a quitrent. The practice of selling land was steadily continued, the prices varying with the period of time which had elapsed since the settlement of the province, with the character and location of the land, and with such other conditions as might affect a bargain. After 1732 prices became more permanent. For thirty years from that date the price was £15, 10«. per hundred acres. 4 Prices were always fixed by the proprietor and his oSicials. Until 1683 no price seems to have been fixed upon land in Maryland?^ But in that year, whether or not it was an imi- tation of Pennsylvania practice, the proprietor began to in- sist upon the purchase of land. The price first set upon land in the interior of the province was one hundred pounds
^ Kilty, Landholder's Assistant, 56, 266 ; MacMahon, History of Mary- land, 174.
2 Huston, 4, 63, 196 ; Shepherd, 17, 34.
L.AND SYSTEM OF LATER PROPBIETABY PROVINCES 35
of tobacco for every fifty acres. At later dates the price CHAP, was somewhat increased, and in the eighteenth century the ^^" form of payment was changed to money. Escheated land, with such improvements as had been made upon it, was sold at auction, and the larger part of the purchase money went to the proprietor. It was a requirement in all the provinces that land should be settled within a brief period — often designated as three years — after the issue of the patent. Squatters' rights, as evidenced by " improvement," were as a rule generously recognized.
The most characteristic form of territorial revenue was the quitrent, paid annually at a rate prescribed by the pro- prietor and received in lieu of all services. It appears in all the provinces. Upon the Marylanji grants which were promised in 1633 the quitrent was twenty pounds of wheat for every hundred acres. In 1642 the rate was changed to 2«. for every hundred acres, and in 1659 and 1660 to 4«. sterling, on simple freehold as well as manorial grants. But owing to the internal disturbances and a probable hesitancy on the part of the government, not till a decade later \ -was it possible to begin the regular collection of rents ] at the last-mentioned rate.^ At the same time a pre-^ mium was set on the status of a freeholder by the issue of writs of election for the lower house in 1670 which restricted the suffrage to freeholders. In 1671 the well-known act was pasSid imposing anexport duty of 2g. per hogshead on tobacco, one-half of the revenue from which was to go to the proprietor, provided he accepted, in payment of his quitrents and alienation fines, good tobacco at 2(2. per pound.* By an act of 1669 it had been provided that tobacco should be received in the payment of ordinary debts at the rate of three halfpence sterling per pound, while its market price was about one penny per pound. The law of 1671 was, therefore, naturally regarded by the people of the province with favor, and was continued in force till long after the be- ginning of the eighteenth century.
The quitrent which at the beginning was demanded by
^ Mereness, op. cU, 78.
« Md. Arch. Proceedings of Assembly, 1666-1676, 284, 220.
36 THE PROPRIETARY PROVINCE IN ITS LATER FORMS
PART the Carolina prgprijetors was.oxxe. balfp§nny^er acre.^ Gov- ' J ernor Berkeley of Virginia, as the member of the Carolina
1
board who was nearest to the province, was ordered to im- pose this rate upon the land which should be granted in the Albemarle settlement. But a large proportion of the colo- nists had come from Virginia, and there the quitrent was one farthing per acre. Having settled in Albemarle before Berkeley's instructions were published, or without special reference to their terms, they sought a reduction of the rate. The assembly of Albemarle county petitioned the proprietors that they might have their lands on the same terms as the inhabitants of Virginia. In 1668 the petition was granted, the "Concessions" being suspended to that extent. So valuable did this seem to the colonists, that they came to call the concession the great " deed of_grant," and to regard it as irrevocable. The proprietors, however, did not so con- sider it, and in the Fundamental Constitutions provided that after 1689 the quitrent should be one English penny per acre. But as late as 1694 Governor Ludwell was granting land at the rent of one farthing per acre, and referred to the "deed" for his authority. Later still, in the eighteenth century, the question of the inviolability of this deed became an important issue between the colonists and some of the royal governors.*
In all transactions, and in all the colonies, the form of payment was a matter of importance to the people. So scanty was their supply of money, that payment in kind was always strongly their preference. The proprietors, and afterward the crown, always ifound their interest in securing money payments whenever it was possible. This in many cases gave rise to controversies over quitrents,_ which in turn occasioned the interference of the assembly in a matter which the proprietors claimed as exclusiviely their own. * Such a dispute agitated South Carolina for several years ^ ^ previous ta 1690. It arose from the omission of the words " or the value thereof " in the form of patent which in 1682 was sent over ifor use in land grants. The effect of the omis-
J N. C. Recs. I. 43, 51 tt seq.
2 Ibid. L 238, 391 ; IV. 60, 91, 109, 183, 238, 336.
\
LAND SYSTEM OF LATER PBOPEIETABY PROVINCES 37
sion was to make rents^^ayablq in money. ^ At the same CHAP, time strict regulations were issued for the payment of y ' j arrears. The afidtation which followed contributed to the
overthrow^ of ^Goyenx(M:(Q!^yb3iai^^ and forced the pro-
prietors to consent to acts which provided that rents should be paid in money or in certain designated staple products at fixed prices. The regulations concerning the payment of arrears were also made easier.
In all the provinces quitrents were an object of aversion. They were continually falling into arrears. Paymenf was avoided whenever it was possible; and it was not infre- quently resisted. In the last resort payment could be en- forced by distress, the assistance of the sheriff being called in for the purpose. In Pennsylvania, as in other provinces, these conditions were ever and anon recurring. But in the history of New Jersey the question of quitrents played a more important part than in any other province. This was due to the fact that the settlers of the Elizabethtown and Monmouth patents, who had~pfeviously received their grants ( from Governor NicoUs of New York, did not acknowledge J the claim of BerEeley and Carteret to the province.
When, in 1670, quitrents first became due, the three towns within these grants refused to pay them, and declined in other ways to recognize the authority of the proprietors. The legal right of Berkeley and Carteret to administer gov- ernment within the province was also in doubt. In Wood- bridge the disinclination to take out patents from Governor Carteret was so great that he had to warn delinquents that they could not be regarded as freeholders or entitled to any of their privileges, and further that their lands might be dis- posed of to others. Some of the inhabitants of Elizabeth- town,^ alarmed by the demand for a quitrent, and by other acts of the governor which they considered to be encroach- ments on their privileges, tore down the fence about a lot which had been granted by the governor to one Richard Michell, who had been one of his servants. When sum- moned before the court on the charge of riot, the accused
1 Smith, South Carolina as a Royal Province, 29.
> N. J. Arch. L 80 et wq, ; Hatfield, History of Elizabeth, 137-139.
38 THE PROPRIETARY PROVINCE IN ITS LATER FORMS
TART refused to plead, and in their absence were found guilty and ^^^" , fined. All the inhabitants of this town and of two towns within the Monmouth Purchase claimed to hold their land independently of the proprietors, while the Monmouth towns claimed independence in all things.
So great was the confusion thus occasioned, that in 1672 Governor Carteret returned to England to make the situation known and obtain fresh authority. It was then proven to the satisfaction of the Duke of York ^ that the Nicolls grants were void in law, because they were issued later than his grant of the province to Berkeley and Carteret. There- fore the duke ordered the governor of New York to take no further notice of those patents, and to inform the parties concerned that he would in no way countenance their pre- tensions against the proprietors. The king also wrote, com- manding all persons within the province to obey " the laws and government " of the proprietors, they " having the sole Power under us to settle and dispose of the said Coun- try, upon such Terms and Conditions as they shall think fit."
Governor Carteret also obtained from the proprietors re- newed declarations * that all land in the proyince must be held of them, and that the rent due therefrom might be col- lected by distress. As an interpretation of the sixth article of their concessions, they declared that the governor and council should have the exclusive power to admit persons to be planters and freemen of the province, and that no one should be counted a freeholder, or have the right to vote or hold office, unless he held his land by patent from the lords proprietors. The proprietors, and their agent the governor, in accordance with the practice in the provinces generally, proceeded on the supposition that territorial affairs should be regulated wholly by the executive. According, also, to the opinion just mentioned, the exercise of political rights was to depend wholly on the form of land grants. It is true that in provinces where the territorial rights of the pro- prietors met with no opposition this practically followed as a matter of course. The proprietors were not forced to de-
1 N. J. Arch. L 98. « Ibid, 99, 101, 107.
s
J
LAND SYSTEM OF LATER PROPEIETABY PROVINCES 39
clare the principle according to which they acted. But in CHAP. New Jersey a considerable element among the settlers in- sisted, not only that the exercise of political rights should be regulated by the legislature, but that certain of the towns had the exclusive right to determine who should be residents and freeholders within their limits. Owing thus to the peculiar way in which the northern part of New Jersey was settled, questions of land, of rent, of the relation between these and political rights, had, and were always destined to have, an unusual prominence.
The attitude of the board of twenty-four proprietors toward the claim of those who still clung to their grants from Nicolls was the same as that of Carteret had been. The settlers were told that purchase from the Indians gave them " no Right ^ but what is duly confirmed by us, or our legal Predecessors, unless you would renounce all Interest and Protection from the King of England, and so Subject your all to a just forfeiture." But such a result they deprecated, and instead referred the inhabitants of Elizabethtown and of the Monmouth Purchase to the scheme of government they had sent over for proof of the kindly spirit which the pro- prietors cherished toward them.
A general inspection of patents was discussed, but it was not undertaken, and quitrents in East Jersey continued largely in arrearaj. The proprietors were never able satis- factorily to establish their rights to government, and that fact furnished a chronic incitement to agrarian troubles. The [ executive remained weak, even after the proprietors had re- signed their political rights to the crown. Therefore, dur- ing long periods in the eighteenth century. New Jersey was plunged into ana£chy-by agrarian disputes which the gov- ernment was too weak to control. J
In the Dutch ground briefs no definite provision was made for the payment of a rent. In some of the patents the pay- ment of a tenths of the products of the soil was required. In many only the general obligation of submission and alle- giance was enforced, with some special duty, such as that
1 N. J. Arch. I. 466.
> Grants and Concessions, 173, 214 ; N. J. Arch. I. 429.
40 THE PROPRIETARY PROVINCE IN ITS LATER FORMS
PART Jof fencing the land.^ The West India company owned six ^^^* . /boweries, which were situated on the east side of Manhattan island outside the limits of the Dutch town. They were fur- nished with buildings and with cattle, and were leased for short periods, with their stock and other outfit, on such terms as were customary throughout the province.* The farms of the colony of Rensselaerswyck were managed according to the same system of stock leases. Some were let at a fixed rent, payable in grain, beaver, or wampum, while othera were" let at halves or thirds, including one-half of the in- crease of the stock and a few pounds of butter ' as a recog- nition. The tenant was bound to keep the buildings and . tools in good repair.
^ The English conquest in 1664 resulted in no immediate change in the land law of the province. The articles of capitulation* provided that the Dutch should "enjoy their own customs concerning their inlieritances," and alF public writings whic^confamed~the fecofd of them should be care- fully preserved. In the Duke's Laws also the permanency of property rights was carefully guarantied.* This, how- ever, did not preclude the necessity of a general renewal of patents and town charters, as a means of breaking the tenure by which land had been held of the Dutch government,~and as an accompaniment of the oath of allegiance to the English crown. Provision was made for this in IBe Duke's Laws * and their subsequent amendments. " To the end all former Purchases," it was declared, " may be ascertained to the present possessor or right owner. They shall bring in their former Grants, and take out new patents for the same from the present Governoure in the behalf of his Royall Highness
1 See patents in N.Y. Col. Docs. XIV. Translations of the original Dutch patents which have been preserved are in the office of the Secretary of State at Albany.
a N.Y. Col. Docs. XIV. 19 ei 5cg., 39 ; Valentine's Manual of the Corpora- tion, 1866, p. 676.
» O'Callaghan, History of New Netherland, L 323-326.
* N. Y. Col. Docs. II. 250.
• N. Y. Col. Laws, I. 67. •/&td. 44, 80, 93; State Library Bulletin, History No. 2, General
Entries, L 161.
I
LAND SYSTEM OF LATER PROPRIETARY PROVINCES 41
the Duke of York." It was also carefully provided that all CHAP, patents and bounds of towns, also surveys for new purchases, ^ j
should be deposited in the oflSce of records at the city of New York, as well as in the towns and in the custody of the courts of sessions. Wills, drawn now not according to Dutch precedents but according to forms which, for lands held by socage tenure, had been legal in England since Henry VIII, were likewise to be filed in the city of New York.
In the Duke's Laws also the fact was recognized that by 12 Charles II, c. 24, all military tenures in England had been \ abolished. Free and common socage was therefore the tenure which was substituted for Dutch law and custom.
Dutch ground briefs and transports were very generally submitted to the English officials for confirmation, and in most of the English patents or deeds which were granted in their stead no express mention was^made of a quitrent.* This is emphatically true in the case of confirmation of city lots. Confirmations of Indian deeds and new grants were made subject to " the accustomed rent of new Plantations in this country," or to such payment and conditions as should be designated by the Duke of York and his officers. In some cases the annual payment of a lamb, or of a barrel of codfish or a bushel of winter wheat, was demanded. Con- firmations of patents on the Delaware and the issue of new g^rants in that region were always accompanied by the con- dition that a quitrent should be paid in wheat.
At the close, in 1674, of the Dutch reoccupation there was another renewal of patents. But even then the system of quitrents was not fully introduced. In 1686 Governor Dongan reported ^ that the quitrents, at his arrival in the province, were very inconsiderable^ the larger part coming from the Delaware region under the terms of the patents granted by Andros. But Andros even had renewed Indian purchases and township grants with the former reservation of a lamb only as a quitrent. Dongan, however,^ insisted
1 See Patents, Vols. I, II, and III, Office of Secretary of State, Albany, N.Y. ; N.Y. CoL Docs. HI. 303, 309. « N.Y. CoL Docs. IIL 401. » Patents, Vol. V, Office of Secretary of State, Albany.
42 THE PROPRIETARY PROVINCE IN ITS LATER FORMS
PART that all patents or deeds which were recorded during his ^ J administration should contain provision for a quitrent. No
exception was made even in the case of city lots.
Rent in the city was made payable in money, but in the counlry'it was payaBle in wheat, fish, or other commodities. Albany was made the place of payment for the noHhern part, and New York for the southern part, of the province. At first rents were payable to the duke, but later, after his accession, to the king. Dongan himself explains how he succeeded in increasing the quitrent in some of the towns. He found that certain tracts of land within their limits had not been purchased from the Indians and were at the dis- V posal of the government. By threatening to grant them to outside parties, he induced the proprietors of the town to submit to an increase of rent. By these measures the sys- tem of quitrents was extended throughout New York, and its practice in this respect was brought into conformity with that of the other English provinces.
The fact that under this system the proprietor was the grantor of land and the recipient of revenue therefrom, neces- sitated the creation of an administrative body within the province for the performance of the duties which these rights implied. Under the conditions of plantation those who were entitled to head rights had to record their claims, ^. and on the basis of tKem warrants were issued for the sur- veyof the tracts to which the claimants were entitled. When the survey in each case was duly made and return thereof submitted, the patent or deed for the land was made out and title ^ was thereby conveyed. As the rents and other forms of income from land became due, provision had to be made for their coUection.
During the early history of Maryland this work was done by the governor, council, and secretary — who was a mem- ber of the council, — and mainly through the secretary's oflBce. Surveyors, and especially the surveyor-general, who was also a member of the council, were continuously called into requisition. Warrants and deeds were made out under the order of the governor, and the deeds passed the great
1 Kilty, ^ et seq. ; Mereness, 68 et seq.
LAND SYSTEM OP LATER PBOPRIETABY PROVINCES 43
seal of the province. In the collection of rents the sheriffs CHAP, were brought into requisition, while in prosecutions" theTer- vices of the attorney-general were sometimes needed. In 1685 ^ an examiner was appointed, who signed the certificates of survey. " Previous to that time this duty had been per- formed by the surveyor-general.
About 1670 there was a notable increase in the territorial business of the province.* In that year the secretary was instructed to prove all claims to land ; to inquire after, and enter on record, all escheats, also all proprietary manors and reserves ; to prepare a rent roll^ and in connection there- with to discover and report to the proprietor and governor all attempts to conceal the obligation to pay rent ; to secure, if possible, the payment of alienation fines and to enter upon record a list of alienations. In 1673 and earlier the sheriffs were ordered to return lists of escheats for their respective counties. In 1671 the surveyor-general was instructed to hold annually courts of inquiry in the several counties for the purpose of examining titles, and ascertaining whether more land was held than was due and «(rhat rents and ser- vices should be paid ; these facts should also be recorded an3" one copy sent to the proprietor and another to the receiver-general.^ At this date or a little later two receiver- generals were appointed by the proprietor, with authority to collect rents and dues and to appoint deputies to assist them in the work.* In 1678 the formation of a complete rent roll was in progress, for then the clerks of the county courts were ordered through the justices to transmit to the oflBce of the secretary a complete list of alienations of land within their counties, which might be used for the purpose.
In 1680 this increased activity took shape in the organi- zation of a land office which, though connected with the ofiBce of secretary, should be distinct from it.^ The chief clerk of the secretary's office was placed in charge of the new bureau, under the title of clerk and register. The land records were- transferred to his care, and he was authorized
1 Kilty, 83. * Md. Arch., Proceedings of Council, 1667-1688, 78.
» Ihid. 95, 122. * Ibid. 1671-1681, 119.
* Kil^, 108 et seq. ; Proceedings of Council, 1681-1686, 254 et seq.
44 THE PEOPEIETARY PROVINCE IN ITS LATER FORMS
PART to prove claims, issue warrants, and draw patents. In 1684, ^ ' J just before leaving the province, Charles Calvert, the lord proprietor, commissioned a land council of four members, all of whom were members of the council of state. This "body received elaborate instructions concerning all matters relat- ing to land, and were intrusted with full care of the pro- prietor's territorial interests. Two of its members, who were the secretaries of the province, were to sign warrants and examine all patents ; two other members, who ^ere keepers of the great seal, were, during the absence of the proprietor, to sign all patents. Thus the business of grant- ing land, collecting the revenue therefrom, and keeping the land records was organized under one distinct office, which continued in existence until 1689, and after a suspension of five years was reopened and remaiiied in activity, with certain administrative changes, as long as Maryland was a province. In New Netherland territorial affairs were administered by the director and council, and no separate land office was organized. The same was true of the Carolinas, of New York, and of New Jersey prior to about 1680. In those provinces the governor, the secretary, the surveyor-general, and the receiver-general, with their subordinates, attended ) wholly to the making of surveys, the issue of patents, and
/ the collection of rents. No evidence appears that in this
capacity the governor and secretary acted under separata commissions. The procedure which was followed in the making of surveys and the issue of warrants and patents was much the same in all these provinces, and in all essen- tial particulars it was the same as that of Maryland.^ This included provision, especially in New York and in the Fundamental Constitutions of Carolina, for the registry of all leases, mortgages, and conveyances. New York also included wills under the requirement for registration. Florence O'Sullivan, the first surveyor-general of the Ashley River settlement, was ordered,* not only to survey
IN. C. Recs. I. 51 et seq., 182; Shaftesbury Papers, 117-123; Smith, South Carolina as a Royal Province, 27.
2 Shaftesbury Papers, 131. O'Sullivan was later removed on the charge of unfitness for the duties of his office.
LAND SYSTEM OF LATER PROPRIETARY PROVINCES 45
all bounds and allotments under warrants from the gov- CHAP, ernor and council, but to make a return of such surveys and keep a record of such returns in his office.
In New Jersex the office of surveyor-general was one of the first ^ to be created, while that of receiver-general was in existence at least as early as 1672. But owing to the large number of proprietors, after the division of the prov- ince into East and West New Jersey, it became necessary to delegate authority to a part of the board. In East Jersey authority was first given, in 1684 and 1685, to the governor and the proprietors who were resident in the province, with their deputies, to grant lands and settle disputes with the planters. This soon became known as the Board of Pro- prietors of East Jersey, and it continued to have The chief management of territorial affairs in that part of the original province.
In West Jersey the trustees, — Penn, Lawrie, and Lucas, — who for a time took charge of the province on behalf of the creditors of Edward ByUinge, appointed a board of com- missioners to administer territorial affairs. Had that board been continued through appointment of their successors. West Jersey would have retained the form of other pro- prietary provinces. But such was not the case. In chapter third of the Concessions it was provided that, on March 25, 1681, the proprietors, freeholders, and inhabitants, resident within the province, should meet and elect from among themselves ten commissioners to take the place of those who had at first been appoinledT This process should be annu- ally repeated. Its effect was to give the control over terri- torial affairs into the hands of the inhabitants, to democratize the land system as well as the political system. In other words, i{ indefinitely multiplied the number of those who in the technical sense were proprietors; all grantees retained a joint interest in the enterprtecrr^ Therefore when, after settlement of the province had begun, commissioners are mentioned, a board chosen by the colonists is meant. West Jersey was like a New England town — greatly enlarged. It is possible that, during the interval between 1681 and
1 N. J. Arch. I. 26, 106.
46 THE PBOPEIETABY PBOVINCB IN ITS LATER FOBMS
PART 1687, the commissioners were not regularly elected. But ^^^' J in the last-mentioned year, forty or more of the proprietors met and resolved that eleven of their number should be annually chosen to act as commissioners and trustees for the ^ entire body. In this act originated the Council or Board of West Jersey Proprietors, which has continued in existence from that time. This board, as weU as that of East Jersey, may be regarded as constituting a land office, and neither the governor nor the other officers were ex officio members of it.
The course of policy which in these matters was followed in Pennsylvania was similar to that of Maryland and the Jerseys. Like them, Pennsylvaniahad a land office, though until after 1732 its affairs were very much in confusion. Even then records were kept and affairs were managed with less care than was shown by the Calverts and their officials. The long absences of Penn from his province made it im- possible for him to attend in person to the details of selling and letting land and collecting rents. Not until 1741 was the care of these matters intrusted to the governors. Instead^ a commission or board of property was from time to time designated, which acted as the special agent of the proprietor. The board consisted of a secretary, — who was at the same time secretary of the province, — the surveyor-general, and from three to five special commissioners. Closely associated with the board was the receiver-general, the keeper of the seal, and master of the rolls. The special duties of the commissioners related to the granting of lands, but, as their powers developed, they also became concerned with the col- lection of rents. ^ After 1741 the governors became members of this board, but their authority to act with it was conveyed through a special commission. In its divorce of territorial business from the office of governor, the practice of Pennsyl- vania and that of the Jerseys, as well as that of Maryland in its later history, were similar.
In all the provinces the land system was kept as free as possible from the control of the legislature. It was organized and regulated under instructions and proclamations of the proprietors and their appointees. Any attempt to regulate
1 HoBton, Land Titles, 68, 80, 86, 107 ; Shepherd, op. cU, 27 et 9eq,
JjAud system of later proprietary provinces 47
it by legislation was resented and opposed. It was regarded CHAP, as the private concern of the proprietor and its administra- ^^* tion as distinctly an execuSve function. Until 1690 it re- mained under executive control in Maryland, and few laws of importance were passed for its regulation. The most impor- tant act of the period affecting land was the one passed in 1671, specifying the price at which tobacco should be received in payment of quitrents. In 1649 the principle always insisted on by the proprietor, that titles should be derived from him and not through Indian deeds^ was confirmed by statute. In 1642 an act was passed prescribing the time subsequent to a grant when the payment of quitrent should begin. The act was also intended to prevent undue delays in surveying and recording grants. The same year the fees of the surveyor-general were regulated * and acts for that purpose were repeatedly passed thereafter. Irregularities on the part of surveyors received attention after 1660,* but no laws on the subject were passed.
In New Netherland, and in New York during its proprie- tary period, there was, of course, no question of executive control versus legislative regulation. In the absence of a legislature such an issue could not arise! But in the Caro- linas, tBe Jerseys, and Pennsylvania it arose, and the occa^ siSTwhich usually brought it to the front was some dispute over the payment of quitrents. It was at this point that the territorial regulations ^ the proprietor touched the pocket of the colonist. Like a tax, the rent was a constantly recurring burden. Over its amount and the form of its pay- ment the in3m3SSl desired in some way to secure" such con- trol as had been effected in the case of taxation. Efforts to secure this helped to initiate the process of legislation relat- ing to territorial affairs.
Group settlements, which were so characteristic of New £ngland,~appear in the proprietary provinces with very un- equal prominence. The towns of eastern Long Island ^ were
1 FroceedingB of Assembly, 163S-1664, 163, 194, 248.
« Ihid. 1666-1676, 86.
* See the Records of Easthampton, Southampton, Sonthold, Hantington, Brookhaven, Smithtown, and Oyster Bay ; Thompson, History of Long Island. The records of all the towns above referred to, except those of Oyster Bay, are in print
\
48 THE PROPRIETARY PROVINCE IN ITS LATER FORMS
PART exclusively of New England origin and type. The same may • A\be said of the five English towns — Hempstead,^ Gravesend, \ljamaica, Newtown, and Flushing — which lay immediately to the westward and were settled under Dutch rule. The English towns of Westchester county ^ belonged, in the main, to the same class, as did Newark, Elizabethtown, Shrewsbury, and Woodbridge in northern New Jersey.' Viewed coUec- tively, the towns to which reference has just been made were a projection of New England into the middle colonies. If the enterprise of New Haven on the Delaware tad suc- ceeded, one or more New England towns would have been planted still farther south. In so far as the inhabitants of these towns at a later time became subject to a quitrent, they departed from the New England model and approximated to the conditions of tenancy by which they were surrounded.
The fact that in the proprietary provinces land was granted by the proprietor and was held of him, could not fail, when it was really operative, to have an effect on the formation of group settlements. The system itself was pre- eminently favorable to individual grants. The economic impulse, under which the provinces were settled, operated upon individuals and families more than upon groups and entire communities. Migration and the progress of settle- ment within the provinces were, in most cases, distinctly individualistic in character. This is true among the Dutch, as well as among the English. In New Netherland individ- uals pushed out into unoccupied territory, extinguished Indian titles, and then obtained sanction from the company for what they had done. The form of early deeds implies this. To cite one among a large number of examples : * On
1 The Records of Hempstead are in print. For the lay-out of Gravesend see Stiles, History of Kings County, 1. 160 ; details from town records of Jamaica are in Munsell, History of Queens County, 194 ; Riker, Annals of Newtown.
2 Baird, History of Rye ; Bolton, History of Westchester County ; Scbaif, History of Westchester County.
8 Town Records of Newark ; Hatfield, History of Elizabeth ; Mlddletown Town Book ; Dally, History of Woodbridge.
* N. Y. Col. Docs. XIV. 4. Many other similar deeds appear in this and in Vols. XII. and XIII. of the series ; also in various works on the local history of the region, and in the libers of the registries of deeds.
LAND SYSTEM OF LATER PROPRIETARY PROVINCES 49
June 16, 1637, the director and council declared that certain CHAP.
Indian chiefs, whose names are given, came before them and ^^ [
stated that, with the consent of the tribe and in return for certain merchandise which had been transferred to them, they had conveyed to George Rapalje a piece of land upon Long Island, with bounds loosely specified in the document. This simple recognition by the director and council in writ- ing of what private parties had done is the essence of the ^ Dutch ground brief, and in this case it sanctioned the first ' step that was taken toward the settlement at Wallabout.
Siyiilar steps were being taken elsewhere. On the open flats, north of the present Coney island, Hudde, Van Cor- laer, Gerritsen, and others took out patents, some of which were afterward revoked, for tracts estimated at fifteen thousand acres. A part of this was known as the planta- tion of Achtervelt, of the buildings, stock, and growing crops on which, as they were in July, 1638, we have an inventory.^ After settlers in sufficient number had bought or leased farms and built dweUings within these large grants, rights of local government were bestowed by the director and council, and the settlement became, not the manor, but the village and town of Amersfoort, later called Flatlands. Breuckelen originated in a similar way from grants to individuals at Gowanus, Red Hook, The Wallabout, The Ferry, and finally at a point some distance east of The Ferry, where a church was built, and the village of Breuckelen proper was founded. In 1667, after the English conquest, these settlements were bound together into one bundle, and made a town by a patent from Governor NicoUs.^ The other Dutch towns in Kings county consisted of grants to individuals, made originally by the province, and at a later time bound together by a town patent, itself also a grant from the chief authority in the province. Haerlem and Bergen 8 originated in a similar manner.
1 N. Y. Col. Docs. XIV. 10 ; Stiles, History of Kings Comity, L 66, 66.
« Stiles, History of Brooklyn, I. 164.
' The process can be traced in detail in the brilliant pages of Riker^s History of Harlem. For Bergen see Winfield, History of Hudson County, Kew Jersey, and Winfield, Land Titles in Hudson County.
TOL. II — B
60 THE PROPRIETARY PROVINCE IN ITS LATER FORMS
PART After a local magistracy had been established, and espe- cially after the issue of the town patent, the locality itself grated, Iftnd, though it had not the exclusive power to do this, and such grants might be subject to confirmation, to quitrents, or to other conditions under which land was generally held in the province. Within towns thus organ- ized unoccupied land was treated as commons, and the system oT common fields, pastures, and woods, with town herds and common fences, appears, much as in New Eng- land. As time progressed the towns divided their commons by lot,^ as they did in New England. A' genuine village community system existed among the Dutch, as it did among the New Englanders. But in the two sections it came into existence in a somewhat different way. In New England, as a rule, the group of settlers was original, and secured the town grant and managed it from the first. Among the Dutch, as a rule, the villages originated from aggregations of farms, and attained their corporate life in consequence of such preexistent aggregation. When the Dutch village community had once been formed, it exhibited most of the characteristics of the New England village, though it was always subject to certain limitations which did not attach to the latter. Moreover, in New Netherland the village was by no means the only form of settlement, and it did not determine the form of society to the extent which was true of the villages in New England.
As one passes to southern New Jersey, to Pennsylvania, and the provinces still farther south, he will find the village or town diminishing in importance, and the isolated farm or plantation appearing still more distinctly as the chief form of settlement. This tendency culminated in the tobacco- planting and rice-growing provinces south of Pennsylvania. Though such a form of settlement was in close harmony with the proprietary system in general, it was the result of natural and economic causes which are familiar, the working of which has often been explained.
1 A typical instance is furnished by Brooklyn, in 1693 ; Liber I. of Con- veyances, in Office of Register of Deeds ; see also Stiles, Kings County, I. 92. Even the fragmentary records of Kings county which have been pre- served furnish much evidence relating to the management of common landa.
LAND SYSTEM OF LATER PBOPRIETABY PROVINCES 61
When, in the provinces to which reference has just been CHAP, made, the village or village community appears, it will in most cases be found to have originated after the manner of the Ehitch rather than after that of the New Englanders. And yet one would not be warranted in inferring that the English of the provinces were in this feature of their colonization imitating their Dutch neighbors. It would be safer to infer that both Dutch and English were acting under similar con- ditions, both economic and administrative.
Perth Amboy, in East Jersey, was laid out by the propri- etors, aiidTo&^ere granted or taken up by them. Over the settlement of Salem John Fenwick exercised the control of a chief proprietor. After the location and general plan of the town had been decided upon by him in consultation with the intending purchasers, one-half of the site was set apart for their home lots and the other half was reserved by Fen- wick, to be granted exclusively by him. Burlington and Gloucester were laid out by the proprietors — who were the principal freeholders of the tenths where they were located — in accordance with the democratic method ^ of procedure which was generally followed in West Jersey.
In Pennsylvania, as well as in Maryland, towns were laid out and lots in them were granted^'inidCT the immediate authority of the proprietor and his appointees. In the case of Philadelphia this was literally true, and proportional allot- ments of land within the town were made in connection with the grant of country lots. Quitrents were reserved upon both alike.* When transfers were made from the original grantees to third parties, quitrents were also reserved^ and they were payable directly to Penn. In reference to land the relations between the proprietor and individuals in Phil- adelphia proper was as direct as it was in any other part of the province. Land in the beginning was not transferred to the inhabitants of that city as a group, but as individuals. They came to form a city, because within that particular
1 Johnson, First Settlement of Salem in West Jersey; Mickle, Reminis- cences of Old Gloucester ; Smith, History of West Jersey.
* Lewis, Original Land Titles in Philadelphia, 124 et seq., 220 ; Exempli- fication Records, in Office of Recorder of Deeds, Philadelphia county.
\
62 THE PROPRIETARY PROVINCE IN ITS LATER FORMS
>RT tract settlement was compact and not dispersed. When Philadelphia was incorporated, the records of land titles remained with the officials of the province, or in the custody of the county of Philadelphia.
Germantown, on the other hand, originated as a group settlement," and was not merely an aggregation of grants to individuals. The initial step was taken in Europe with the founding of the Frankfort land company.^ Though none of the members of that company, except Francis Daniel Pas- torius, came to America, he, acting as their agent, bought land of Penn, to which settlers came from Crefeld and other points on the Rhine. A patent was procured from Penn's commissioners of property for 5700 acres. This contained a grant of 200 acres to Pastorius and 150 acres to Hartsfelder, and provided for the transfer of the remaining 5350 acres to Pastorius for the German settlers. This tract was divided into two equal parts, one half going to the Frankfort company and the other half to the Crefeld purchasers. From the entire grant a quitrent was reserved by Penn as proprietor, though rents on estates within the tract were frequently made payable to intermediate parties. But the surveying of the tract, the locating of streets and lots, and the assignment of land to settlers was left to Pastorius and his associates. In October, 1683, they laid out four- teen lots for the first comers, and these were assigned. Successive allotments were made as groups of colonists ar- rived, and three townships besides Germantown itself were soon founded within the large tract. Deeds were exe- cuted by Pastorius, or others, under the authority of the Frankfort company or the Crefeld purchasers. Records of these grants^ were kept, as was done, though less sys- tematically, in New England towns. In 1689, by charter from Penn, Germantown was made an incorporated borough. Authority was thereby given to the bailifE^burgesses, and commonalty of the borough to manage and improve their
^ Pennypacker, The Settlement of Germantown, 28, 01, 259 et seq. ; Lewis, op, cit. 80.
3 They appear in the Orund und Lager Buck of Germantown, which is now in the office of the Recorder of Deeds of Philadelphia county.
LAND SYSTEM OF LATEB PBOPRIETARY PROVINCES 53
lands and stock in trade. A borougli court was established, CHAP, with authority to issue local ordinances ; and in the exercise of this power by-laws were passed which went as far in the regulation of allotments and common lands as did the orders of New England towns.^ But local powers of this extent were the exception in the provinces, and were the result of special conditions.
In Maryland the straggling settlement at Saint Mary's and the more compact and permanent town of Annapolis' were subject in all their territorial arrangements to regu- lations which were issued by the government of the province, or by county officials who were acting under its authority. Annapolis originated in a grant in 1649 of 250 acres to ten families, led by Richard Bennett, who had recently arrived from Virginia. This tract was surveyed and divided into lots, probably by surveyors who were acting directly under authority from the proprietor. Later, as the settlement grew, other farms, on the lower course of the Severn, were surveyed and occupied. Thus the town grew by the addition of homestead to homestead rather than by joint and simultaneous acts of a considerable group of colonists.^ In 1683, when the rage for founding port towns was at its height, an act was passed by the Maryland legislature which provided a cut-and-dried scheme for the establishment of towns in the various counties. As, about ten years later, the same plan was applied especially to Annapolis, and since it well illustrates the methods by which in the southern provinces attempts were made to found towns, a brief refer- ) ence to it is necessary.^
In the act commissioners for each county were named, and they were empowered to buy one hundred acres of land con- veniently situated at each of a certain number of designated points where it was believed that port towns could be devel-
1 The charter is printed by Pennypacker, op, cU., and also the beginning of the court orders. A manuscript copy of the Germantown Court Book is in the possession of the Pennsylvania Historical Society.
« Riley, The Ancient City, History of Annapolis, 18.
• Md. Arch., Proceedings of Assembly, 167S-1683, 612 ; Bacon, Laws of Maryland, Act of 16M, c. 8.
54 THE PBOPBIBTABY PROVINCE IN ITS LATER FORMS
PART oped. After any one of the given tracts had been surveyed, ' ^ the commissioners should cause it to be laid out in streetsand alleys, reserving open places for a church, a market-house, and other public buildings. What remained of the tract should be laid out, as nearly as might be, into one hundred numbered lots, and these should be sold to intending settlers. For the period of four months the lots should be reserved for pur- chase exclusively by residents of the county in which the town was situated ; at the end of that time they should be thrown open to purchasers from outside. Prior owners of the land might be compelled to sell at an appraised value, \ while the grantees should be under obligation, not only to \ pay for their lots, but to build a house upon each of them ^ within the period of two years. County surveyors should be required to lay off the lots, as well as the streets and commons, and a quitrent on the land should be reserved to the proprietor. By the act of 1694, relating to Annapolis and Oxford, provision was made in each case for purchasing and fencing a town pasture. A board of possibly resident commissioners was also designated for each town. But, as under the act of 1693, the laying out of streets and lots, and all else which was connected with the founding or extension of the town, was to be done under provincial rather than local authority. A town thus founded would be only a more densely settled area within a county. It would have ■^ little or no organic life apart from the county.
Although the plan of 1683 to promote town life within Maryland proved a failure, Annapolis survived, and in 1696^ a board of resident trustees was created for it. They were incorporated and empowered to meet from time to time as a court to regulate town affairs and administer local justice. The resident freeholders were also recognized as freemen of the town, and were empowered to fill vacancies in the board of trustees. The trustees were authorized to buy land for common use, and from it or other ungranted land to sell lots to newcomers. By this measure Annapolis for the first time attained to the conditions of corporate life.
North Carolina, until near the close of the period which 1 Bacon, Laws of Maryland, Acts of 1696, c. 24.
LAND SYSTEM OF LATER PROPRIETARY PROVINCES 55
we are discussing, was almost destitute of group settlements. On the Ashley river there was only one of importance — Charlestown on Albemarle Point, which was afterward removed to the site of the same name on Oyster Point. This town was the residence of the provincial authorities, and was the place where the legislature met, and where gov- ernment centred. Notwithstanding the fact that provision was at once made for individual ownership in the manage- ment of its land, and in everything which pertained to its life, Charlestown was quite as much under provincial control as was Jamestown in Virginia. Indeed, the remoteness of Charlestown from the other English settlements, and its exposure to attack, both from Indian and Spaniard, remind one of Jamestown during the early decades of its existence. The resemblance is strengthened when we find that the pro- prietors gave minute instructions concerning its settlement,^ and that these were followed as strictly as possible, though the site which was chosen was quite different from the one which the proprietors had in mind when the orders were drawn.
The origin of the settlement at Albemarle Point cannot be better described than in the words" of the provincial coun- cil as written to the proprietors : * " When we arrived here, we thought it most conducing to our safety to build^a town, where we we now settled, it being a point with a very^con- venient landing, and saf elx.f ortified, being almost surrounded with a large Marsh and Creek, and after the first joint plant- ing, upon our arrival, which necessity had soe put upon us : that the people might have sufficient land to plant and keep a small stock, and that we might keep as near together as we could, for the better security of this place, we were forcedfto grant them town lotts cont: eleaven poles or thereabouts per head, and Tenn acres per head to plant as aforesaid, which tenn acre lotts were and are laid out to them and about the Town from the South, westward to ye North, by which we humbly conceive we shall prevent any sudden surpriseall."
We are told that no person was settled more than two miles from the town, whether up or down the river.* The
1 Shaftesbury Papers, 126 et aeq. * Ibid. 284. > Ibid. 274.
5§ THE PROPRIETARY PROVINCE IN ITS LATER FORMS
PART town enclosure itself, which was christened Charlestown, seems to have contained about Jiine acres, and was sur- rounded by a palisade. It was located about midway of the settlement, where it was protected on three sides by marsh. A plan ^ which has been preserved in the Shaftesbury Papers shows that grants were made to the settlers, extending back in long, rectangular strips from the marsh adjacent to the river, and that these grants varied in extent from less than V twenty acres to fortydtwo acres. A list of sixty-two grants, apparently smaller than most of those which appear on the plan, has also been preserved. This may be the list of town lots, while the plan shows outlying farms. The largest grant which appears on the plan was one of 420 acres to the part- ners Ashley, Cajcteret, and Colleton, who had undertaken jointly to settle a plantation within the colony. Of this. West, the storekeeper, took special charge, as the agent of the partners, and on the plantation their servants were settled.
Over the territorial arrangements at the second Charles- town — that on Oyster Point — the control of the proprietors was even more complete than it was over the settlement which has just been described. In the fall of 1671 instructions* were issued to Sir John Yeamans, who was then governor, that he should have surveys made for a port town at the -V healthiest spot available upon the Ashley river, and the Point was selected as best meeting that condition. This was in accordance with the provision of the Constitutions that there should be one port town on each navigable river in the province.^ The governor was instructed to lay out land for six colonies about it, — which would make a precinct, — but
1 This is reproduced in Shaftesbury Papers j also in Ex-Mayor Courtney^s volume, The Centennial of the Incorporation of Charleston, Charleston Year Book, 1883. See also p. 140 et seq. of this volume.
^ Shaftesbury Papers, 342, 361. Page 379 contains a fine description of the advantages of Oyster Point as a site for a town, written by Joseph Dal- ton, secretary of the province.
3 The proprietors declared that they intended that all vessels which entered Ashley river should unload at Charlestown, and also take on their cargoes there, except such bulky commodities as timber, which could not be brought to the port. In this way trade should be conducted on all the large rivers. Ibid. 361.
LAND SYSTEM OF LATEB PROPRIETARY PROVINCES 57
not to g^rant any seigniories or baronies among them. The town, according to the plan of the proprietors, which was known as a "grai^^ model," should be regularly laid out in plots three hundred feet square, on each of which one house might be built.
The squares should be separated from one another by streets and alleys. With each square as a town lot should also be granted eighty acres in the colony of which the town formed a part, and four hundred acres in some of the other five colonies of the precinct. The town should be palisaded, and outside the palisade should be a ditch. Immediately without the palisade the land, for the breadth of one-third of a mile, should be left common, and in order to insure its being cleared, the inhabitants might be temporarily allowed to plant or make gardens there. But its final and perma- nent use should be as a common for the cattle of the town, and the grantee or grantees of every square in the town should have their proportional share in the use of it.
Preparatory to the settlement on Oyster Point, the sur- render of a few tracts of land which had already been occu- pied there was procured. References appear in the council records to gradual progress in the occupation of the new site. The inland boundary of the "new town" was at a line corresponding to Hasell and Beaufain streets in the modern city. The first buildings were erected along the eastern side of the peninsula. Many creeks and marshes obstructed settlement even here. But the seat of govern- ment was removed to the new town, and ^e settlement at Albemarle _ Point _was officially abandoned.^ In 1679 and 1680 the proprietors issued the decisive orders which changed its name to Charlegtown, removed the government offices, and made it thenceforward the chief town in the province. A general removal of the inhabitants from Al- bemarle Point — the older Charlestown — followed. No town in this province during the period which we are dis- cussing was made a borough, or in any way enjoyed distinct corporate rights.
1 Shaftesbury Papers, 385, 388, 391 ; Colls. S. C. Hist Soc. I. 102, 103 ; Riven, 128, 129.
CHAPTER III
THE OFFICIAL SYSTEM IN MARYLAND
PART Had governmental powers not accompanied the territorial grants which have been described, those grants would have lain wholly within the domain of private law. They would have been estates of land, unusually large, no doubt, but nothing more. In cases where the governmental rights of proprietors were suspended or resigned into the hands of the crown, they remained thereafter only private landlords. But the fact that rights of government were bestowed with the land gives to the regulations concerning the latter a signifi- cance in constitutional history. The proprietor was made thereby the political head of his province. In fact, the ter- ritory became a province by virtue of the rights and institu- tions of government existing in and connected therewith. The bestowment of grants of. land by the proprietor not only carried with it the obligation to pay quitrent, but to take to him the oath of fidelity. Had it been possible for a territorial nobility to develop in the American provinces, its creation would have shown here, as in Europe, how the granting of land could have been utilized as a means of strengthening the government and checking the growth of democracy.
In the discussion of the corporation as a form of colonial government it was necessary to dwell first and chiefly on the legislature. The general court was the central feature of that organism, for in that the freemen, who were the grantees of power, found their embodiment. But with the proprietary province the case is different. The king established this form of colony by delegating to the proprietor the right to exercise certain functions of the prerogative within the province. It is true that the proprietary charters contained more hints con-
68
THE OFFICIAL SYSTEM IN MARYLAND 59
cerning the form of government which should obtain in the CHAP, province than did the cj^arters of the corporations ; but the ^ ^
existence of an assembly, and hence the enjoyment of political rights by the colonists, was not in any of the charters guar- antied in mandatory terms. In the charter of New York it was not mentioned. The powers which were definitely bestowed were executive in character, — the ordinance power, the power to appoint all officers, to establish courts, to punish and pardon, to organize a military force and defend the province, to bestow titles of honor, to found churches and present to livings. These made the proprietor the executive of the province, and for the most part left it to him to determine how and under what forms the governmental powers which he had received should be exercised. That he did this alone, without advice, or apart from the social and political conditions of the province, is not claimed. That in none of the provinces, save New York, was there or could there have been much delay in calling an assembly, is true. But in all cases the assembly wa^^, called by the proprietor,. and without suclfaction of his it could not legally meet. What control he had over its organization and work, when once in existence, will appear in the sequel. The fact here insisted upon is, that the bestowment of power upon an individual instead of a corporation assembled in general court, and its transmission through him to the colonists, made the executive, instead of the legislature, the centre from and around* which development in the province chiefly occurred. It gave to the proprietor an importance, especially at the outset, which was analogous to that enjoyed by the g^eral court in the corporate colony. It made him in a derived and inferior sense the source, within the province, of office and ionor, the fount^ of justice, the commander of the military, the recipijentgf the provincial revenue, th§.. con- stituent part of the legislature. These were the jura regalia of the proprietor, which made his position that of a count palatine. They were in kind the power of the English mon- arch; and, when used according to the precedents of the county palatine, they made the province monarchical in form.
60 THE PROPRIETAKY PROVINCE IN ITS LATER FORMS
PART Of the proprietary provinces which attained permanent , ^^^' , form and development, Maryland was founded prior to the Restoration, while all the rest were established subse- quent to that event. The Cal verts and the Duke of York were the only proprietors who did not issue elaborate concessions as to government. As we have seen, they all published the terms on which they would grant land ; the Carolina and New Jersey proprietors and Penn made similar announcement of the conditions under which government should be administered. With one exception, — the Funda- t^ mental Constitutions of Shaftesbury and Locke, — these documents have a decidedly modern form and purport. They were apparently issued for the purpose of attracting settlers, and may have contained features which were suggested by those who expected to live as colonists under them. They approach as near formal compacts as is possible in the case of documents within the domain of public law. One cannot imagine a mediaeval count palatine issuing to his vassals such grants as these. In them the organs of the government which it was proposed to establish, and their powers, were described, in some cases very minutely, while provisions for amendment were included. They were, in fact, octroi constitutions, and were issued as an expression of the will of the proprietors, but also with a view to the inter- ests and demands of those who, under new and strange condi- tions, were to inhabit the provinces. In these rudimentary constitutions, then, we note the first .fiignificant_innqvation in matters of government, which occurred when the palatinates were reproduced in the American colonies. The Calverts and the Duke of York, by refraining from their issue, Eept more strictly in the line of precedent, and, on that account, for a time at least, they were able better to control the exercise of political power. They conceded less at the outset than did the proprietors of Carolina, New Jersey, and Pennsylvania.
In Maryland, as in the other provinces, the eifective exer- cise of government began with the appointment of the gov- ernor. Between two and three hundred colonists came tEIlher on the first vessels in 1634.^ Before they left England, a
^ Calvert Papers, L 131 ei seq.
I
THE OFFICIAL SYSTEM IN MARYLAND 61
governor, a secretary, and a surveyor were appointed. Closely CHAP, associated also with the governor were two commissioners, Jerome Hawley and Thomas Cornwallis, who were likewise appointed in England. They were called " commissioners for the government of the province," and were"lEe'germl)f the executive council. The first instructions extant were issued by the proprietor to the governor and commissioners jointly. According to the instructions the appointees were enjoined to keep the peace on board ship during the voyage, to choose a place for a settlement on their arrival, to land the colonists, cause them to assemble to hear the patent read, take charge of Indian relations, and of relations between the colony and its English neighbors.
In April, 1637,^ a general ordinance of government, con- taining a commission for a governor, a council, and a secre- tary, as well as direction for calling an assembly, was issued. This clearly shows what the powers of the governor were. The military function was placed in the foreground. The governor was designated as lieutenant-general and admiral, and as such was within the province the chief commander of its militia, its forts and vessels of war. Indian relations fell partly under this head, and partly under the powers relating to trade. The second power mentioned was that of chancellor. By virtue of this the governor was keeper of the seal of the province, and from him all patents, territorial and governmental grants, writs for elections and original processes, licenses, and many other public documents took their origin. As chancellor also the governor was judge in equity for the province, with power, if he saw fit, tocall the council to his aid in its exercise, a discretion which the gov- ernors of Maryland never chose to exercise. From 1661 to 1689 the office of chancellor was distinct from that of gov- ernor and was held by another individual. This was also the case during two brief intervals at a later time. But T^th these exceptions the two oflSces were united in the same hands throughout the entire history of Maryland as a province.
Under his authority as chief justice the governor was
1 CoTincil Proceedings, 1636-1667, p. 49 et seq.
62 THE PROPRIBTARY PBOVINCB IN ITS LATBB FORMS
PART chief common law judge, with power to hear and determine all cases, civil and criminal, as if the proprietor himself were present. When life, member, or freehold were involved, the councillors should sit as judges with him. The fact that the governor was intrusted with the pardoning power, save in cases of high treason, at the same time that he was judge, shows how limited was the official personnel of the province in the early period of its existence.
The title of chief magistrate apparently refers to the power of the governor as leading conservator of the peace in the province, and to the fact that from him proceeded the authority which was exercised by the sheriffs, constables, and justices of the peace in arresting, detaining, and binding over offenders. Closely connected with the governor's magisterial authority was his general executive power; that is, his power to issue and execute ordinances, to establish ports, harbors, markets, and fairs, to care for the interests of the province and control its administration in gener^, supple- menting in all needful ways the work done under the func- tions already specified, so as to make a rounded whole. Under this head fell the power of the governor, as the con- stituent part of the legislature, to call, prorogue, and dis- solve it, and to accept or veto its acts. The last-named power was also exercised by the Maryland proprietor on such acts as passed the governor. This right was of special value to the proprietor,^ in that it enabled him to review acts which established, confirmed, or changed officials in Ihe province, or infringed any of his rights. Later commissions made no material change in the governor's powers, though the gradual expansion of the official system made it necessary that in time some of his authority should be shared by others.
Within the province, especially in the early time, the gov- ernor was the centre from whom radiated military, judicial, administrative, and, to a considerable extent, legislative activity. He was the proprietor's commissioner or agent for all purposes of government. Power was transmitted to him by a commission, and he was guided in the use of it by instructions. Instructions might be given him at the time 1 Council Proceedings, 1030-1667, 154, The CommisBlon of 1644.
THE OFFICIAL SYSTEM IN MARYLAND 63
of his appointment or at any later period. The letters CHAP, written by the proprietor to his governor were informal ^ ^ ^ instructions. As cases in point, may be cited the detailed instructions given to Leonard Calvert and his associates before they left England in 1634, the various conditions of plantation, a long list of instructions concerning grants of land, the reorganization and management of the land office, and a less number relating chiefly or wholly to matters of government.^ Appointments to office, relations with Clai- borne and with the Jesuit priests who accompanied the early settlers to America, Indian affairs, relations with Virginia and with the Dutch, internal disturbances and attacks on the proprietor's authority, the calling of assemblies, meas- ures the passage of which would encroach on his prerogative — all these and many more affairs of a public nature are referred to in a manner more or less imperative in the pro- prietor's letters and formal instructions. Since the early governors of Maryland were in several instancesjnenibers of the Calvert family, instructions were most frequently con- veyed through the informal channel of letters, and these often refer in detail to the management of the private estates of the proprietor,^ the purchase and sale of stock and prod- ucts, building of houses, servants, control of trade, and the like. The correspondence with the secretary and with some of the councillors also partakes largely of this character.^ These give an informal aspect to the communications between the proprietor and his subordinates which reminds one that, even under the system of individual property, the province had not lost all the characteristics of a plantation.
The governor, in return, was expected to report his doings to the proprietor, and to keep him informed concerning all
^ Those relating to territorial affairs will be most easily found in Kilty, Landholder's Assistant. All are printed in the Council Proceedings under their respectiye dates. The letters, so far as preserved, will be found mainly among the Calvert Papers, and some specimens of them have been printed. A few instructions appear among the Proceedings of the Assembly. Ex- amples of Maryland instructions may be cited as found in Proceedings of Coancil, 1636-1667, 61, 99, 135, 139, 324, 329, 335, 385 ; Assembly Proceed- ings, 1637-1664, 321-323 ; CouncU Proceedings, 1667-1678, 64, 63, 94.
* Calvert Papers, I. 211, 229. > Ibid. I. 194.
64 THE PROPRIETARY PROVINCE IN ITS LATER FORMS
PART affairs, public and private, in the province. This, with the ^ ^^^ ^ aid of the secretary and other officials, he did, and in the same informal manner which characterized the instructions. The governor, like all other officials, held office at the pro- prietor's pleasure, and was in no respect legally indepen- dent of him. Of this the first Copilius was not slow to inform his brother, Leonard Calvert, when in 1641 he had granted some land to the^Jesuits contrary to the proprietor's express order. " Certainly," he wrote, ^ " I have the power to revoke anie authoritie I have given you, either in whole or in part, . . . for you are but meerly instrumentall in those things to doe what I direct, and not to compel mee to doe what you thinke fitting." "I shall earnestlie therefore desire you to bee more observant hereafter of my directions, and not to expect that I should satisfie your judgment by acquainting you still with my reasons why I direct anie thing; for then my power there were no more than any mans else, who may with reasons persuade you to doe or forbeare anything as well as I."
In order to the existence of proprietary government, it was not necessary that the proprietor should reside in the province. Wherever the governor was, tliere was the pro- prietor. The governor brought the proprieter into the prov- ince, for every public act of the governor, if legally performed, was done in the name and by the authority of his superior. Anything which the proprietor could lawfully do, he could require his governor to do ; and at the outset the proprietor was limited only by the very general, though in the sphere of private rights the comprehensive, terms of his charter. In the provincial system, then, provision was made for in- structions before it was decisively made for legislation, and it was only through instructions that legislation could legally begin and be continued. Instructions were as normal and regular a part of the system as was lawmaking. Not only were they sent to the governor, but, when necessary, to all other officials appointed by the proprietor. Any official in the province might also send them to his subordinates.*
1 Calvert Papers, I. 219.
s Council Proceedings, 1036-1667, 141, 147, 161, etc.
THE OFFICIAL SYSTEM IN MARYLAND 65
So far as Maryland is concerned, reference to the official chap. oath will furnish additional evidence that the relation be- . * , tween the proprietor and the governor was such as has been indicated. The oath which was prescribed in 1648 ^ bound the appointee to defend and maintain the jurisdiction and seign- iory of the proprietor to the utmost of his power, and never to " accept of nor execute any Place, Office, or Employment, within the said Province anyway Concerning or relating to the Government of the said Province from any Person or Authority but by from or under a lawful Authority derived or to be derived from time to time under the hand of his said Lordship or his heirs and Assigns." The oath of 1£692 ^^s / drawn in the same terms. This furnishes additional evi- dence that, unlike the governor of the corporate colony, the head of the proprietary province derived his official status, not from the colony, but from the proprietor. He was head of the province by virtue of his being intermediary between it and the proprietor.
It has already been stated that at the time when the office of governor was brought into existence provision was made for a council. Of this body the governor was ex officio a member. By the commission of 1687 he was commanded to advise with its members " as he shall see cause upon all occa- tions concerning the good of our Said Province and of the people there." That it was associated with the governor in the discharge of the highest judicial functions we have seen. The councillor's oath, as formulated and administered in 1639, bound him to bear true faith to the proprietor and defend his rights, maintain the peace and welfare of the peo- ple, assist in the administration of justice, give good advice to the proprietor and his governor, and keep secret the affairs of state.* This oath proves that the council was an impor- tant part of the provincial executive, and that as such it was i under obligation to uphold the rights of the proprietor. It J
1 Council Proceedings, 1636-1667, 209.
« J6Mt 1667-16S8, 39.
* The oath was prescribed in one of the bills which in 1639 just failed of final passage through the assembly ; but it was later used. Proceedings of ABsembly, 1637-1664, 44 ; Proceedings of Council, 1636-1667, 86 ; Bozman,
n. 140.
VOL. II — F
66 THE PROPRIETARY PROVINCE IN ITS LATER FORMS
PART stood toward the governor in a relation analogous to that V ' J occupied by the privy council toward the king in England. In 1642 the council received for the first time a commission * distinct from that of the governor. In this it was called " our privie Councell within our said Province of Maryland," and its members were empowered to meet with the governor when and where he should direct, " to treate, consult, deliberate and advise of all matters, causes and things which shall be discovered unto you, ... as well concerning the quiet gov- ernment and regulating the people there, as for the good & safety of our said Province of Maryland." The peculiar function of the council, therefore, was to advise the governor and through him the proprietor, and without that advice the governor should not act. The councillors in early times also occupied the status of justices of the peace in their respective counties, their judicial powers in this connection being set forth in the commissions of the governors.^ The powers of the council as the upper house of the legislature will require notice in another connection.
The council was never a large body. Its existence began with three members, and by 1690 it had reached the number of nine or ten. Its actual membership never exceeded this. Its extant records, prior to 1660, are so fragmentary that little idea of its composition can be obtained. Its journal subsequent to that date reveals the fact that business was usually transacted in the presence of from three to six, among whom the governor, chancellor, and secretary would in most cases be found. The councillors were appointed by the proprietor, usually on the recommendation of the governor. They were appointed for indefinite terms, and death or resignation were as a rule the only causes which brought their official careers to an end. The board met at irregular, but frequent, intervals, and during the seventeenth century it did a great variety of business. By it or in its presence
^ Council Proceedings, 1636-1667, 114. Substantially the same language was used in the commission of 1644. Ibid. 157, 159.
2 Ibid. 1636-1667, 159. They are called in this commissioners for conser- vation of the peace, with authority individually or collectively to arrest, detain, and bind over ; but when the time for trial came the governor must be asso- ciated with them.
V
J
THE OFFICIAL SYSTEM IN MARYLAND 67
counties and hundreds were erected, offices and courts were established, commissions and instructions were issued to officials, oaths were administered, trade and fees were regu- lated, petitions and complaints heard, pardons and licenses granted, ordinances issued, advice given with respect to call- ing, proroguing, and dissolving the assembly, orders were issued for expeditions against the Indians and protection against the other enemies or rivals of the province.^ In the eighteenth century the governor and council were deprived by legislation of many of their earlier powers, but in the seventeenth century they formed altogether the leading organ of the provincial government.
During the seventeenth century, when internal peace per- mitted, the expansion of the official system, under the action of the proprietor, governor, and council, kept even pace with the growth of the province. By the ordinance of April, 1637, provision was made for a secretary, whose duties were closely connected with the original functions of the governor as chancellor. The first incumbent of this position was also made judge of probate, register of the land office, and re- ceiver of the proprietary rents, profits, and customs, while he acted also as surveyor-general and attorney-general. A treasurer was also appointed, apparently by a separate com- mission.^ In 1642 the original office of surveyor was ele- vated to that of surveyor-general,* and separated from the office of secretary. The same year the governor, council, / and secretary received separate commissions.* About the ^ middle of the century the~^ office of attorney-general was separated from that of the secretary, while in 1673 that of judge of probate was temporarily attached to the chancellor's office, though ultimately made a distinct function. In 1676 two receiver-generals were appointed, and the secretary ceased to perform that function. Four years later the sec- retary ceased to act as register of the land office, and that
1 See entries in the first two volumes of Maryland Archives, Proceedings of the Cooncil. The summary is given by Mereuess, Maryland as a Propri- etary Province, 176.
« Calvert Papers, L 163.
• Council Proceedings, 1636-1667, 101. * Ibid. 108.
\CHAP. I IIL
68 THE PROPRIETARY PROVINCE IN ITS LATER FORMS
PART became a separate position. In 1685 the oflSce of examiner- general was separated from that of surveyor-general.^ Toward the close of the century, naval officers began to be appointed, a part of whose duties was to collect customs which were levied under acts of assembly. Two treasurers were appointed, one for each shore, and their functions be- came distinct both from those of the naval officers and of the receiver-general.
The multiplication of lower offices was one of the results of the organization of~counties and hundreds, of the estab- lishment of courts and the €levelopment of a fiscal and a militia system. These, in nearly all cases, like the central executive offices of the province, antedated thejegidature, and derived their origin from the proprietor. They were created by act of the proprietor, or of the governor and coun- cil proceeding with his approval, and in imitation of corre- sponding English institutions and offices. At first the entire west shore of Maryland was treated as one county under the name of Saint Mary's,^ while it may be said that the east shore was treated in the same way under the name of Kent, or Kent island. These names appear also as the designations respectively of a hundred, a fort, and a town. The settle- ments, as they grew up on either shore, were organized as hundreds,^ and were used in early times as territorial units for elections, public levies, and the preservation of the peace. The chief officer of the hundred was an appointee of the gov- ernor, and^ whether he went by the title of constable or con- servator of the peace, had the powers of one or more justices of the peace in England. The chief officer of Saint George's hundred was called a justice of the peace, and received authority to appoint a constable as his subordinate. The justice of the hundred could arrest, try, and punish for petty crimes, and bind over grievous offenders to the county court for trial.
The bounds of Saint Mary's county were gradually defined by the formation of outlying counties. Of the order of 1650,
1 KUty, op. cit. 83 ; Proceedings of Council, 1667-1688, M2.
2 Council Proceedings, 1636-1667, 61. 8 Ibid. 59, 70, 89, 91 ; Assembly Proceedings, 1637-1664, 2, 87 et 8eq.
THE OFFICIAL SYSTEM IN MARYLAND 69
and that of 1654, repealing the above ordinance and estab- CHAP.
TTT
lishing the bounds of Calvert county, the record has been preserved.^ The orders for the erection of Somerset county and for the attempted erection of Worcester county on Delaware bay are exceptionally detailed. ^ But the more important act in the establishment of a county was the erection of the county court. Though the detailed con- sideration of this subject more properly belongs in a later chapter, it may here be said that, prior to 1690, the coynty courts of Maryland, with one exception, were created by the executive. By the governor their ofl&cers were appointed, and by him their jurisdiction to an extent established.
The same was true of the military officials. The gov- ernor's commission implied that he sKould possess full power of appointment, and that all should obey him as lieutenant- general an3admiral. Thomas Cornwallis, the councillor, commanded the first expedition against Claiborne. In May, 1638, John Boteler was appointed captain of the Kent island militia. In May, 1639, on the eve of a conflict with the Indians, Giles Brent was appointed captain of the military band of Saint Mary's. This expressly gave him immediate command for purposes of training over " all Inhabitants of Our Said Colony able to bear arms, those only of our Council excepted." After several more subordinate appoint- ments, in August, 1642, Thomas Cornwallis was commis- sioned, with the power of a captain-general, to levy men and lead them on an expedition against the Indians. His authority for this purpose seems to have extended through- out the province. The following spring he was commis- sioned again for the same purpose, while Thomas Baldridge -was at the same time ordered to take the assize of arms and ascertain the number of persons within his hundred who were able to serve. During the perturbed state of the province, between 1646 and 1657, we know that the gov-
1 Conncil Proceedings, 1636-1667, 259, 308.
« Ibid. 563^55 ; ibid. 1667-1688, 108. By the assembly of 1654, which was held under the parliamentary commissioners, Patuxent county was created by legislation. This was done when the authority of the proprietor was suspended, and Patuxent does not appear in the later list of counties. Proceedings of Assembly, 1637-1664, 369, 381, 396.
70 THE PROPRIETARY PROVINCE IN ITS LATER FORMS
PART ernors repeatedly appeared at the head of the provincial J forces, as did Calvert in 1646 and Stone in 1655. When- ever outrages were committed by the Indians, or serious outbreaks on their part occurred, especially also when, because of conflicts between the Five Nations and the Susquehannas, the peace of the northern part of the prov- ince was threatened, armed expeditions were fitted out under the authority of the governor and council. Instances of such action during the period under review were the expedition of 1652 against the Indians of the eastern shore, of the spring of 1661 to aid the Susquehannas at Susque- hanna Fort, of the summer of 1664 and 1665 against raiders presumably from among the Five Nations. The despatch of Henry Coursey to Albany in 1677 to negotiate with the Five Nations was caused by the almost yearly repetition of their attacks, which necessitated defensive operations. These all were carried on directly under the authority of the exegu- tive and of the commissions and instructions which he issued.^
By the process and to the extent thus indicated was the ofiicial system developed in Maryland prior to 1690. It con- stituted at once the provincial executive and judiciary, and was dependent almost wholly on the proprietor^^x%The sup- port of its members was largely derived from fees/^nd in addition from the appropriation by the legislature oi a £oll tax or the proceeds of a cugtpms duty. Repeatedly during tEe decade between 1640 and 1650, and during the years "^ between 1662 and 1670, sjich taxes were levied for the sup- port of the government.^ Occasionally special— grants of land were made to the governor, and he, with the ottier leading officials, was so situ^ed that large favors of this kind could be procured. It was the intention oFthe assem- bly that one-half of the revenue from the export duty of 2«. per hogshead on tobacco, for which provision was^toade by the act of 1671, should go to the support of the governor and council and for a supply of arms and ammunition. For
1 Proceedings of Council, 1636-1607, 75, 86, 87, 88, 102, 104, 106, 132, 148, 282, 411, 602, 522 ei aeq. ; ibid. 1667-1688, 21 et seq. ; Bozman, II. 287. 3 Mereness, op. ciU 171 et seq.
i
THE OFFICIAL SYSTEM IN MARYLAND 71
this purpose it was presumably used. During the period CHAP, under review no question of the proper support of officials y j
arose ; it did not become an issue, and the action of the ex- ecutive was not modified or hampered by it.
Prior to 1690 no effort was made to limit the proprietor's V right of appointment, except in the case of sheriffs. The duties \ of the sheriffs were then large, for, besides being the executive officers of the courts, they held elections for members of the lower house and coUgijted all direct^^xes, officers' fees, and dues of the clergy. For a time, also, about 1671, they were concerned with the collection of quijtjcents. In 1642 an act was passed requiring that the governor should appoint sher- iffs from lists presented by the provincial court and by each county court. An act of 1662 added to this provision one forbidding any person to serve as sheriff longer than one year. Both of these were temporary acts and soon expired. But during the period of the Restoration complaints of the oppressive administration of sheriffs continued and multi- plied, so that in 1678 an act was passed forbidding any one to serve in that office longer than one year, unless at its end lie procured from the court of his county a certificate that lie had performed the duties of his office with justice. This, though it was kept on the statute book, was evidently not WLB. effective limitation ; but it was the only one which, before 1690, was applied to the appointing power of the proprietor. By the creation of offices and the appointment of their incumbents the influence of the proprietor was extended "through the province and was consolidated. Those who held the higher offices were for the most part large landholders, i \ "while conversely the holding of office was vefjT likely to * facilitate the increase of the incumbent's estates. In other "vrords, under the Maryland system, there was a tendency "toward the identification of the large landholders with the official class. But at the same time the higher offices were csoncentrated in the hands of a few persons, and these, in addition to being large landholders, were in many instances i^elatives of the proprietor. The last-mentioned feature of t;he system appears very clearly after 1660, when Charles Calvert was governor and afterward proprietor. Before
72 THE PROPRIETARY PROVINCE IN ITS LATER FORMS
PART that time the only conspicuous instance of that kind was ^ the appointment of Leonard Calvert, brother of the first proprietor, as governor. About 1660 Philip Calvert was appointed first as secretary, then governor, and, when his service in that capacity ended, he retained the chancellorship as a distinct office. Between 1669 and the overthrow of the proprietary government in 1689 the system of family government, with accompanying privileges and cliques, was at its height. During a part of this time Charles Calvert and his brother Philip were on bad terms and acted to an extent as rivals. In 1669, among the members of the ( council — which was also the upper house — were Charles ' Calvert, Philip Calvert, and William Calvert, Baker Brooke,
who was brother-in-law of William Calvert, and the firm friends of the family, Jerome White and William Coursey.^ Soon after the arrival of Charles Calvert in the province, his intimate friend, Henry Sewall, was made^ secretary and a member of the council. Sewall married a daughter of Vincent Lowe, who was later a councillor and surveyor- general.^ By her he had four daughters and one son. On Sewall's death Charles Calvert married the widow. In dua course the children all married, and the husbands of th9 daughters — Dr. Jesse Wharton, Colonel Benjamin Rozier^ Colonel William Chandler, and Philip Calvert — found their* way either into the council, the provincial court, or ther offices of sheriff and colonel of militia. William Burgess^ whose daughter Nicholas Sewall, the son, married, became a councillor. Thomas Notley, a strong friend of the pro- prietor, was for some time speaker of the lower house and later became a member of the council.
The accumulation of offices in the same hands also contrib- uted tDwaTd the concentration of political power. Secretary Lewger, who by his capacity and intelligence contributed not a little to the early success of the provincial government, re- ceived, in addition to his chief office, those* of receiver-gen-
1 Proceedings of Assembly, 1666-1676, 157 ; Sparks, Maryland Revolution of 1089, J. H. U. Studies, XIV.
8 Proceedings of Council, 1630-10G7, 439.
8 Ibid, 1667-1688, 309 et seq. ; Sparks, op. Git. ♦ Ibid, 1636-1667, 65, 60, 71.
THE OFFICIAL SYSTEM IN MARYLAND 73
eral, judge of probate, justice of the peace, deputy governor, CHAP, while he was at the same time a member of the council, v The members of the council constituted also the provincial court. They might or might not act with the governor as a court of admiralty. Reference has already been made to the union of large judicial powers with his many executive duties in the hands of the governor. It has also been stated that the members of the council were ex officio justices of the peace. It is true that they, with their immediate con- nections, held in many instances the positions of colonels of the county militia.^ The control of the proprietor over the personnel of the sheriffs was almost complete. It therefore appears that, from the attainment of internal peace about 1660, until 1689, official power in Maryland was centred in a few hands and these belonging to the proprietor's own family or his immediate political connections. The official system was at that time an instrument which he an^ his governor could use almost as they chose. That it was used to hold in check all manner of popular movement which was favorable to change or reform in the province, is indicated by the numerous arrests and prosecutions for seditious con- duct which occurred after 1670. The spirit of the adminis- tration under Charles Calvert was narrow, and toward those who refused quietly to submit to the pretensions of the gov- ernment it was oppressive. The feeling of agitation and suspense which presentTjTbegan to pervade the province was . i faintly suggestive of conditions which at the same time existed in England.
1 Proceedings of Council, 1667-16S8, 309.
r •
CHAPTER IV
THE LEGISLATURE IN MARYLAND AND ITS RELATIONS
WITH THE EXECUTIVE
PART The charters which the proprietors received from the V V crown went farther toward guarantying the existence of
legislatures within the colonies than did those which created the corporations. The latter made no reference to any assembly except the general court of the company, leaving it wholly to the latter to grant or withhold the Benefits of a colonial legislature. In the proprietary charters, beginning with that of Maryland, the grantees were empowered to make laws and to do so with ITTel^ssent of the freemen of their provinces, and it was declared to be the will of the king that they should be called together for the purpose. But it was left to the option of the proprietor to determine when, where, and how he should exercise this power. A proprietary instruction or concession was therefore necessary to bring the legislature into existence and to continue its activity. The existence of a parliament in England did not legally necessitate the existence of assemblies in her colonies, though it greatly increased the difficulties of governing them without assemblies. Moreover, their origin is not to be found in the natural or preexistent rights of Englishmen. Lik9 all their other organs of government, the legislatures of tho provinces developed as the result of social and political causes operating upon the proprietors and inthe'^pi^dTlllces themselves. Though not original in the sense in which tha executive was, events soon showed them to be instruments of government which were indispensable to proprietors a» well as provincials, and about their development centra I events of the greatest interest in the history of the provinces- Their study reveals the operation of forces which were to
74
THE LEGISLATURE IN MARYLAND 75
transform the fief and thus to open the way for the growth CHAP, of modern democratic institutions. The rise qf^assemblies y ' ^ in the English-American colonies is an event of great sig- nificance in the history of the world. Its importance will be evident to any one who takes the trouble to compare events as they occurred in these colonies during the seventeenth century with the trend of institutional development at the same period, especially on the European continent.
The form of the legislature in the corporate colony was determined by the organization of the general court of the tx-^ding company from which it developed. The form of general assembly in the province was determined by
concessions of the executive, and by the form which the
esd^cutive had assumed when the legislature had reached its fu-Xi development. The first step toward calling a general as^^^mbly was taken by the proprietor, who, if he was not in tt»-^ province, instructed his governor to issue writs of elec- ti<:>3a, with such other summonses as might be necessary. Tii.« electors to whom these writs were issued were not ft'^^^men in the technical sense of being members of a cor- poxration, but were such in the broad and general sense which *ti"fcsche8 to that term. In the beginning they were literally ^^^^ men, but the law soon came to define them as free- holders. ^ "VThen met in regular form the legislature consisted of tlko governor, the council or upper house, and the assembly ^^ deputies. The latter, who were sent by the localities, constituted the only repregfinjtative part of the legislature. Its other elements were, as a rule, appointed, were a part ^f the executive, and were in existence before the legislature ^^t. In both tenure and functions the governor and coun- ^^ ^ere legally independent both of the deputies and of the electors. They held their oiBBces at the pleasure of the Proprietor, and were or might be guided by his instruc- ^^ogg; Engaged as they were in the permanent work of Sovemment, they would naturally be swayed by a regard ^^^^ the interests of the proprietor and by some sense of '^^Hinistrative traditions and needs. Though a component ^* the legislature, the council was also the legal adviser of
76 THE PROPRIETARY PROVINCE IN ITS LATER FORMS
PART the governor and through him of the proprietor. As the governor, unless specially limited by law, had the sole power of calling, proroguing, and dissolving the general assembly, the council might advise him in such a way as to destroy the body itself or thwart its plans. The joint work of the coun- cil and assembly was subject to the veto power of the pro- prietor, or of both the proprietor and his goyjer^r. The legislature of the province, therefore, differed materially fromtte general court, though in practice this was some- what offset by the fact that in the New England colonies the magistrates were in the majority of cases reelected for a long series of terms. In the province, as in the kingdom, the legislature was in a sense an expansion of the executive, developed out of_it».and was to .an extent controlledTTy it. / Out of this relation arose the possibility of conflict between ^ ( the two parts of the legislature — that which represented the Vpeople and that which represented the proprietor.
The policy of the first proprietor of Maryland apparently was to call assemblies frequently, but to control their pro- ceedings by retaining in his own hands the exclusive right to initiate legislation. Not until the close of the disturbed period of the Commonwealth and the restoration to Lord Baltimore of the powers, the exercise of which had been sus- pended at the advent of the commissioners of parliament, did the legislature of Maryland assume its final and permanent form. In its early sessions it consisted of only one house and that was variously organized. In ^j658r>o far as the legislature was representative, the hundred was the unit of representation ; but the representative element in the body throughout those years was decidedly fluctuating. For the general assembly of January, 1638^ — the earliest whose
^ records have been preserved, — both personal writs and writs of election were issued, but the only one wWcfe" has been preserved was that directed to Captain Evelyn,^ commander of Kent island. It commanded him to assemble the freemen of that locality and to persuade such as he should think fit to attend in person ; the others he should authorize either to go themselves or to elect and send deputies. It was left
1 Md. Arch., Assembly, 1638-1664, 1.
THE LEGISLATURE IN MARYLAND 77
wholly to the freemen of the localities to decide how many CHAP. d§£uties they would send, but a record of the election and of all else which was done should be returned by them to the secretary of the province. The assembly was attended by the governor and the members of the council, by the commander of Kent island and one of his council, by two other officials, together with twenty gentlemen and planters and one artisan, all of whom came in response to writs addressed to them personally. The rest of the freemen, so far as they took any action at all, sent proxiesj^nd many of the proxies were held by officials. Those who did not appear, either in person or by proxy, were fined. On every day until the close of the session cases occur of the admission of freemen to seats ; the A membership roll of the assembly was never closed. The j body seems not to have contained a single representative ; it ' was substantially a primary assembly, with the governor as its president. Thoug'E summoned in a different way, it, to an extent, resembled the New England court of election.
But in the legislature of February, 1639, the above model was almost wholly abandoned. Electious were held in nearly all the hundreds, and the assembly which resulted was largely representetive. Individual writs were apparently sent to onl^^ree besides the members of the council. Two were admitted without election or special writ. An enactment was passed at this session and became law, to the effect that the general assembly should consist of the lieutenant-general and secretary, of gentlemen summoned by special writ, and of one or two burgesses chosen out of every hundred. Included in a list of bills, already referred to, which failed of final passage, was one providing for triennial assemblies, and one providing that the general assembly should have within the province the same powers as the House of Commons in England.
From this time until 1650 the legislature fluctuated in its organization between the primary and the representative focm, while a small proportion ol the members attended in re^bnse to personal writs. The general assembly of Octo- ber, 1640,^ was almost wholly representative. It was con- tinued in existence by successive prorogations until March,
1 Arcbives, Assembly, 163S-1664. 89.
78 THE PROPBIBTARY PROVINCE IN ITS LATER FORMS
PART 1642. In July, 1641, however, elections were held in Kent
TTT
^ island and in two of the hundreds, and from one of these, Saint Clement's, Thomas Gerard, lord of the manor, was re- turned in the place of Robert Vaughan. Vaughan thereupon asked " to have a voice in his own person," but was refused. Gerard, as lord of the manor, was also summoned in person, by virtue of the proprietor's authority to specially summon " gentlemen of able judgment and quality." Writs of elec- tion for a new assembly were issued in January, 1642,^ but, for some reason which is not stated, early in March they were superseded by a proclamation of the governor requiring all freemen either to attend the assembly personally or to send proxies. This was obeyed and the legislature which resulted was organized substantially as that of 1638 had been. A resolve was passed that it. should nqt^fi-^^j'^"^^'^ or pro- rogued without its own consent, and it adjourned itself from day to day. At the close of a short session, during which it manifested some independence toward the proprietor, it was dissolved.
In July, 1642,^ writs of election were issued and personal writs were sent to nine individuals. Elections were held and burgesses were returned from all the localities of the prov- ince. No proxies seem to have been sent to this assembly, except one or two by those who were personally summoned. A natural result of the adoption of this form of organization was the proposal made by Robert Vaughan in the name of the burgesses that the general assembly should be divided and the representatives sit by themselves and have a nega^ tive voice; but the governor would not agree to it. Tha unsettled condition of affairs was again shown when a new" general assembly was called in September, 1642. Under th^ authority of the governor's proclamation the proxy system was entirely restored.^ In this body there seem to hav& been no representatives. One hundred and eighty-two per- sons were entitled to seats, of whom eighteen were"^di- vidually summoned, eighty-eight attended without personal summons or sent proxies, and seventy-six were fined twenty
1 Archives, Assembly, 114, 115. 2 ji^f^,^ 1638-1664, 127, 129.
» Ibid. 167 ; Bozman, IL 237.
THE LEGISLATURE IN MARYLAND i9
pounds of tobacco each because they failed to be present. CHAP. The proxy system seems to have been retained until 1644,^ v j or possibly a year later. Records of the sessions between April, 1644, and December, 1646, are lacking. The general assembly of the latter date, which was called by Governor Hill at Saint Inigoe's Fort, and continued by Calvert, con- tained burgesses, and one would infer from the fragmentary record which remains that it consisted of two houses. It is stated that Governor Calvert, "in the upper house," with two councillors, called the burgesses before him and assured them that they might consult as freely as in any earlier assembly. But in January, 1648, the representative system ^ was again abandoned, and in that body there is no trace even of personally summoned members. The general assembly held by Governor Stone in April, 1649, the one which passed the famous act concerning religion, seems, on the other hand,^ to have consisted of council and burgesses. In the proclama- tion by which the assembly of April, 1650, was summoned, it was left to the option of the freemen to choose delegates ^ or to attend personally or by proxy. All the hundreds now showed their preference for the representative system by electing burgesses. This legislaturS~ltid not stop there, but as soon as it met organized in two houses and passed an act confirming what had been done. TKi&, as it proved, com- mitted Maryland permanently to the representative system and to the normal provincial legislature of two houses ; the upper house consisting of the council, presided over by the governor, and the lower house consisting of the burgesses. Only during the brief period when affairs were administered by the commissioners of parliament did the legislature meet again in a single house.
The uppgr house, in its legislative as in its executive capacity, supported the interests of the proprietor. In its sympathies it represented him rather than the people of the province, and was really a projection of the executive into the legislature. It was a small body, consisting wholly of the governor's nominees and of the proprietor's appointees,
1 Archives, Assembly, 1638-1664, 201, 205, 209. < Ibid, 214. > Ibid. 238 et acq. « Ibid. 269 ct 8eq., 272.
80 THB PEOPIilETAEY PROVINCE IN ITS LATER FORMS
— .
PART all holding during pleasure. Though subsequent t6l675 V y the governor * ceased to be a member of the upper house, it
was still easy for him to control it. Neither house made much use of committees till near the close of the seventeenth century, and the upper house needed them scarcely at lall except for the purpose of negotiating with the lower house. The lower house contained the representatives of the free- holders of the province, and through it taxes were voted and their desires and interests found expression.
At the outset it was the intention of Lord Baltimore to ^ control the proceedings of his legislatures, not only'iijy-his
"^ right of appointing and instructing the governor and mem-
bers of the upper house, by his veto ^ power and the influence which he could exert in manyother ways, but by retaining in his own hands the exclusive right to initial legislation. He attempted at the beginning to exercis'e this power on a large scale. Whether his rejection of all the acts of the general assembly of 1635 was due to the fact that they originated with that body, we cannot tell. But he caused to be submitted to the general assembly of January, 1638, — the second legislature which met in the province, — a series of twelve bills which he desired to have enacted.* They were read and debated, and finally, by a majority of the mem- bers, led by Captain Cornwallis, they were rejected. Only the votes of the governor and Secretary Lewger, and the proxies which they held, were cast in favor of their passage. Then the question arose, by whatjawsthe province should be governed. Some said that they would do well to agree upon certain_act8i_ which should be in force till they heard again from England. The governor at once denied that the assembly had such power. Captain Cornwallis then sug- gested that in the interim they be governed by the laws of England. To this the governor replied that by his commis- sion he was empowered to proceed in civil causes according to the laws of England, and in criminal causes also if they did not involve life or member. In cases of this nature he
1 Proceedings of Council, 1671-1681, 10.
3 Ibid. 1636-1667, 61, 111, 154, 203, 543 ; ibid, 1666-1676, 161, 178, et nq.
< Ibid. 1638-1664, 6 et seq.
THE LBGISLATUBE IN MARYLAND 81
could proceed only by the laws of the province, and if these CHAP, were lacking, great crimes could not be punished. On examining the commission, this was found to be true. In spite of the assurance from some that such crimes could hardly be committed without mutiny, and in that case they might be punished by martial law, the prospect was apparently not reassuring. When, the following afternoon, a motion was made that some bills be considered with a view to their trans- mission to the proprietor, the governor went so far as to advise that a committee be chosen to draft them. This was done.
When the discussion of