Conceived in Liberty (23 page)

The Cooper-Locke scheme envisioned a hereditary feudal nobility that was to preempt two-fifths of the land of the Carolinas, to be sold to it by the proprietary. Each of these nobles was to have his own seignory of 12,000 acres in each county; underneath the nobles were the landgraves, each of whom was to have four baronies totaling 48,000 acres; next to them, the caciques, with two baronies totaling 24,000 acres; underneath them, the lords of the manor, each with 3,000 to 12,000 acres; and finally, the freeholders, with a 500-acre minimum requirement for voting. The unfree—slaves and indentured servants—of course did not count enough to be worthy of mention in the hierarchical structure. The eight proprietors were to constitute a supreme Palatine Court, with each proprietor also operating a court of his own. The Palatine Court was to appoint the governor and exert sovereign rule over the colony. The Assembly was to be limited to the governor, the hereditary nobility, and the deputies—the last restricted to holders of 500-acre freeholds. All fishing and mineral rights were to be retained in the ownership of the proprietors.

Religious freedom was to be guaranteed—a long-standing conviction of Locke’s—even for Quakers, Jews, and slaves, but the Church of England was to be established by the government, with churches to be built and the ministers paid by the state. But although Locke did not agree with the establishment of the Church of England, he was perhaps partially compensated for this disappointment by receiving the title of landgrave. It was, however, also decreed that no non-theist could hold public office or even have the protection of the law. Another libertarian provision was the guarantee of trial by jury.

Fortunately for the Carolinas, the proprietors were never able to persuade the Assembly to accept this scheme. As a consequence, the gravest threat of permanent feudalism in English America was nipped in the bud. Twenty-six landgraves and thirteen caciques were created, but they mostly expired with the original holder and did not become hereditary. Furthermore, no manor was ever created and no large seignory or barony was established.

We have seen that by the mid-1670s, the Southern colonies were becoming ripe for revolution: accumulated grievances in Virginia and Maryland included English restrictions on tobacco, aggravated dictatorial rule by the governor in Virginia as well as growing Indian troubles, and also attempts to impose feudalism and Protestant anti-Catholicism in Maryland. But the Carolinas, small though they yet were, did not need a lengthy incubation for serious rebellion. Indeed, with the attempt to impose an elaborate feudal structure upon the Carolinas, the new colony was ripe for rebellion almost immediately. This was particularly true of North Carolina, where an unusually independent group of small farmers exercised religious toleration, even for Quakers. Unburdened by feudal planters or a theocratic church, they were suddenly confronted with an attempt by a new English ruler to fasten upon them the very conditions for which they had left the Virginia settlement. North Carolina, which had a population of about 1,000 in 1660, grew rapidly, its free atmosphere and complete religious freedom attracting religious sects and great admixtures of ethnic groups: Germans, French, Swiss, Scots, and Moravians. By the 1670s, its population totaled about 4,000, while new South Carolina was still well under 1,000. The English navigation laws and restrictions on tobacco occasioned additional grievances among the tobacco-growing North Carolinian settlers.

The free spirit of the North Carolina settlers was further reinforced by the failure of land grants for large plantations to take root there. This was a colony of small farmers who had largely settled there to assure their independence. It had no large town or city (the largest town was Edenton) that could serve as a convenient seat for governmental rule. The earliest arrivals either settled freely on the land or purchased it from Indian chiefs. The proprietary, anxious to make money by encouraging rapid settlement, adopted the equivalent of the Virginia headright system, first granting 100 acres to each settler, plus fifty acres of land for each person the settler brought over to the colony. By the 1680s the headright was sixty acres for each settler and sixty for each servant brought over. Each servant was also to receive 100 acres of land on expiration of his term of service. This system, while subject to grave abuses through accumulation of headrights resulting in arbitrarily large land grants, at least assured a wide distribution of land in the colony. The land, from the first, was subject to restrictive conditions and charges, including a quitrent of half a penny per acre to the proprietor; but at least no initial purchase price was required to the grantee. Unfortunately, one-eleventh of each division of land was to be reserved to the proprietors.

In the early eighteenth century, the Virginia planter William Byrd was to write of the North Carolinians that they “treat [their governors] with all the excesses of freedom and familiarity. They are of the opinion that rulers would be apt to grow insolent if they grow rich, and for that reason take care to keep them poorer.” Another shock to visitors was the absence of churches—apparently the North Carolinians preferred to practice their religion
in private. The great English founder of the Quakers, George Fox, visiting Albemarle in 1672, discovered to his chagrin that he could find no place of worship in all the colony. And some years later William Byrd was again stunned to find that “this is the only metropolis in the Christian or Mohammedan world where there is neither church, chapel, mosque, synagogue, or any other place of public worship of any sect or religion whatsoever.”

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In 1629 King Charles I made his first land grant of the area between the thirty-first and thirty-sixth parallels to Sir Robert Heath, and called it New Carolina. Heath transferred his grant in 1630 to Samuel Vassal and others, but they failed to settle the virgin territory. In 1632 Heath conveyed his rights to Henry Lord Maltraven, who also failed to settle the area. The Duke of Norfolk, heir of Maltraven, Samuel Vassal, and the Cape Fear Company of London and New England merchants (who had settled on the Cape Fear River of North Carolina in 1662 but quickly abandoned the settlement) all now tried to invalidate the Carolina charter, but the Crown voided their patents in 1665. And yet, as late as 1768, the Crown granted the Coxe family of New Jersey (to whom had been transferred the Heath title in 1696) 100,000 acres of land in New York as a payment for their tenuous and dubious claim.

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The contradiction has often been noted between the archfeudalism of Locke’s
Fundamental Constitutions
and the individualist, laissez-faire liberalism of his
Civil Government
—a liberalism destined to have great intellectual impact on eighteenth-century America. The latter was written not much more than a decade later. This is largely true. However, we must also point out that a staunch defense of private-property rights will mean laissez-faire liberalism in a new country largely unsaddled by the yoke of feudal land tenure, while an equivalent defense in a country already hagridden by feudalism will be, at least in part, an apologia for feudal rather than justly private property and a free society. In short, the crucial issue is the justice of the private-property titles that are being defended. Glossing over this question means that the same set of principles may lead to a libertarian society in a nonfeudal America, where land titles devolved fairly rapidly upon the actual settlers, but to retention of quasi-feudalism in an England where land titles had been largely feudal. A conservative bulwark for feudalism, when transplanted, can prove to be a radically libertarian call for a free society.

As Bacon’s Rebellion entered its radical phase, Bacon tried to spread the revolutionary movement to the neighboring colonies, each of which had severe and often similar grievances against its government and the Crown. At the height of Bacon’s Rebellion, in September 1676, sixty persons, led by William Davyes and John Pate, assembled in Calvert County, Maryland, to declare their opposition to crushing taxation and to Lord Baltimore’s disfranchisement of the freemen. They also declared their refusal to swear to a new loyalty oath proposed by the proprietor. They refused to obey the governor’s order to disband on promise to consider their grievances in the next Assembly, pointing out that the manipulated Assembly no longer represented the people. But the death of Bacon caused the quick collapse of the embryo Davyes-Pate rebellion, and Davyes and Pate were hanged after being denounced as traitors. The governor observed with satisfaction that the people were now suitably “terrified.” The threat was over, but the governor wrote in warning to Lord Baltimore that never had a people been “more replete with malignancy and frenzy.” Apparently, the Maryland regime had had a close call. The result increased the bitterness in the colony against the proprietor.

However, the struggle against the oppression of the feudal proprietary in Maryland had not been crushed. The veteran rebel Josiah Fendall of Charles County, elected to the Assembly but barred from his seat for his rebellious activities in 1660, now took up the libertarian torch. In particular, Fendall led a movement against high taxes and quitrents imposed by the proprietor. Fendall also championed freedom of speech — a rarity in that era. Philip Calvert denounced Fendall for “telling the people they were fools to
pay taxes” and for allegedly saying that “now nothing was treason... a man might say anything.” Assisting Fendall were Thomas Gerrard, a veteran rebel and a Catholic, and John Coode, an ex-Catholic and ex-clergyman, in a welcome display of religious amity. In 1681 Lord Baltimore had a law passed forbidding the dissemination of “false” news—that is, news aiming to stir up unrest and rebellion—in an attempt to hamper the Fendall movement. Finally, in the same year, a Fendall-Coode plan for rebellion was betrayed and the leaders imprisoned. The jury, drawn necessarily from the populace, favored the defendants, whereas the judges, being appointees of the proprietor, were hostile. Fendall was convicted, fined heavily, and exiled forever from the province. Coode, an Assemblyman, won acquittal. Lord Baltimore denounced Fendall and Coode as “rank Baconists” and wrote afterwards to a friend that had these leaders not “been secured in time, you would have heard of another Bacon.”

North Carolina (Albemarle) was also in a rebellious frame of mind in the mid-1670s. Most grievous was the Navigation Act of 1673, which placed a prohibitory tax of one penny per pound on all intercolonial trading of tobacco. The tobacco farmers of North Carolina, growing over one million pounds of tobacco a year, were heavily dependent on New England shipping for exporting their tobacco, and in turn for importing other products needed by the Carolinians. The tax crippled Carolinian trade, and the result was continual evasion, and sporadic attempts by the government to crack down on the now illegal trade. Another important grievance was the feudal quitrent that the proprietary tried to extract from the North Carolinian land-holders. At first, land grants were made there at a relatively small quitrent of two shillings per 100 acres, the usual quitrent rate in Virginia. Then, in the 1660s the proprietary tried to double the imposed quitrent to one-half penny per acre, payable in specie. After vigorous protests, the proprietary in the Great Deed of 1668 retained the quitrent at the former rate. However, the proprietary tried again to raise the quitrent, this time to quadruple the rate to one penny per acre. Rumors, indeed, circulated about an eventual sixpence per acre levy. Attempts (eventually abandoned) to enforce the quadrupled quitrents fanned the flames of rebellion.

To encourage settlement, the Assembly of 1669 limited land grants to 660 acres, but this limitation did not apply to land given out by the proprietors directly. Land was to be subject to forfeit if not worked by the grantees within six months. Trouble began to come to a head in Albemarle upon the passage of the crippling Navigation Act of 1673. With the colonists determined to avoid payment of the tax, Governor Peter Carteret resigned and fled the colony and John Jenkins remained as acting governor. Jenkins, a precharter settler of Albemarle, belonged to the poplar opposition to the proprietary rule, opposition led by wealthy tobacco planter George Durant, one of the founders of the original settlement. Upon his assumption of office, Jenkins heroically determined not to enforce the Navigation Act upon the colony—in short, to occupy the post of ruler in order to diminish the
extent of his rule. Jenkins simply ignored the order of the king to appoint collectors of customs with the duty of enforcing the hated levy. Finally, in two years, in 1675, the king appointed a collector for the colony. Until the arrival of the collector, Governor Jenkins could appoint a temporary collector, and so he chose his closest associate, Valentine Byrd, who again simply failed to enforce the law.

The Durant-Jenkins forces, though backed strongly by the bulk of the Albemarle people, were opposed by a faction led by the Speaker of the Assembly, Thomas Eastchurch, and by Thomas Miller. When Eastchurch and Miller moved to appeal to England for enforcement of the Navigation Act, Jenkins moved swiftly to crush the counterrevolution by jailing Miller for “treasonable utterances” and dissolving the Eastchurch-controlled Assembly. The Assembly, however, deposed and summarily imprisoned Jenkins, and Eastchurch went to England to induce the proprietary to crack down on the rebellious and independent colony. There he was joined by Miller, freed by the intervention of Sir William Berkeley.

Thus, when Bacon’s Rebellion broke out in 1676, Albemarle was fortunate enough to be without a governor and the hated Navigation Act was still not being enforced. This happy state was not to last for long, however, for the proprietors proceeded to select the two leaders of the pro-Navigation Act clique as the new rulers of the colony: Eastchurch as governor, and Miller as secretary and collector of the customs. On the way to America in 1677, the two men stopped in the West Indies. Eastchurch decided to stay for a while to get married, and sent Miller on to North Carolina to act as governor in his stead.