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Tb? Deuelopment of a Residenlial

QlialificaliOD for Representatives

Id Colonial Legislatiipes

HUBERT PHILLIPS

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The Development of a Residential

Qualification for Representatives

in Colonial Legislatures

HUBERT PHILLIPS, Ph.D.

CINCINNATI

PRINTED FOR THE AUTHOR BY

THE ABINGDON PRESS

-< f> ^' O f*^ o

BY
HUBERT PHILLIPS

?5^

TO ONE NOW GONE,

WITHOUT WHOSE INSPIRATION AND SACRIFICE

THE COMPLETION OF THIS WORK

WOULD NOT HAVE BEEN

POSSIBLE

FOREWORD

^ Geographically this study only covers the colonies which
>* later became known as the Thirteen Original Colonies.
V In point of time it extends from the period of first settle-

ment down to the end of the colonial period. In most of
the colonies the requirement that a representative must be a
resident of the district he represents was incorporated into
the Revolutionary constitutions. In those colonies where
this was not done the study has been continued, but not in
detail into the period of statehood.

At the very beginning some space has been given to a
survey of English Constitutional history so far as it relates
to the subject in hand.

This is justified by the close relationship, racial, social and
institutional, which existed between the colonies and the
mother country; a relationship so vital that we should expect
to find every developing colonial institution to have a direct
connection with some already well-developed English practice.

CONTENTS

CHAPTER PAGE

I. General Observations and Comparisons with

English Practice - 11

II. Massachusetts 18

III. New Plymouth 42

IV. New Hampshire -- 46

V. Rhode Island 61

VI. Connecticut - 80

VII. New Haven 93

VIII. New York 96

IX. New Jersey 130

X. Pennsylvania ---- 149

IX. Delaware . . . _ 161

XII. Maryland 169

XIII. Virginia - - 186

XIV. North Carolina -------- 201

XV. South Carolina 215

XVI. Georgia 234

XVII. Conclusion 244

The Development of a Residential

Qualification for Representatives in

Colonial Legislatures

GENERAL OBSERVATIONS AND COM-
PARISON WITH ENGLISH
PRACTICE

In the United States to-day the invariable custom is that a
representative must be a resident of the district he represents.

In the case of representatives and senators in the state
legislatures this requirement is often by law but quite often
by custom.

In the case of United States Representatives the only
legal residence requirement is that they shall be residents of the
states from which they are elected.^

A few states have passed laws requiring a United States
Representative to be a resident of his district, but

. . . "the best legal authorities hold that a provision of this
kind is invalid because state law has no power to narrow the
qualifications for a Federal representative prescribed by the
Constitution of the United States."-

Congress would probably so decide the question should it
come before it, but the point has never arisen.^

So our present practice, though based upon custom, has
fastened itself so strongly upon our political life that no
candidate, no matter what his fame or abilities, could possibly
be elected from a district in which he did not reside. The
proof of this statement lies in the fact, that despite the
eagerness with which men seek public office we never hear
of a "receptive" candidate having the courage to attempt to
stem the current of this traditional custom.*

' U. S. Constitution, Art. I. Sec. 2.

' Bryce, I, 191.

• In several places I have found references to certain exceptions in practice, to this
custom. If these were definite they would be both interesting and instructive, but so far
I have been unable to verify them. Among these are the following:

(a) New England has had one or two examples of men representing districts in
Congress in which they did not live.

(b) In New York and Chicago there have been cases of men representing Congres-
sional districts which lie in a different part of the city than that in which they reside.

(c) A case of a Representative, who, soon after his election moved to another
district but by force of public opinion was forced to resign.

« A story out of American political life of an attempt to disregard this rule of residence
comes down to us on the authority of John Hay. When James A. Garfield was one of the

12 GENERAL OBSERVATIONS

Now this practice seems to us Americans the only reason-
able and practicable one, and one so necessary, if a representa-
tive is to be held responsible to his constituents, that we never
give it a second thought. Only when we consider that our
practice in this regard differs from that of all the leading
nations of the world which have representative assemblies,
are we brought to ask ourselves How? and Why? is our
practice so different.

In the Reichstag of Germany, in the Chamber of Deputies
of France, in the English House of Commons, and even in
both the House of Commons and Senate of Canada a local
district is allowed to go anywhere in the realm for its repre-
sentative and often does so.

With France and Germany we are not so closely concerned.
But why in this one political custom we differ so from the
mother country, or coming closer home, why this difference
between us and our neighbor on the north, both recipients of
a common political heritage and on the same continent where
propinquity might be supposed to bring common political
practices? These questions seem interesting enough to de-
mand an answer.

"One of the phenomena that attracts the attention of the
student of colonial institutions is the way in which the settlers
repeated certain arrangements of the mother country and did
not reproduce others. They modelled their criminal code on
that of England, they based their local government on that
of the home land, but they built up their representative
systems entirely anew." "

While this gives us a good idea of some of the contrasts in
colonial political action yet it is not quite accurate. Another
American political writer sums up the matter admirably.

"Early in the history of the colonies variations in English
methods began which eventually came to be regarded as

leaders of the House of Representatives it became doubtful if his district would return him
at the approaching election because of the strength of the opposite party. So Mr. Hay
went into an adjoining district to sound the voters there as to the propriety of running Mr.
Garfield from their district. Although it is probable that there was no local man of Gar-
field's ability in that district yet everywhere Hay met with the reply,

. . . "Why, he does not live in our district."

Bryce, I, 194, Note. 'Channing, History of U. S., Ill, 74.

GENERAL OBSERVATIONS 13

American characteristics; but Americanisms in politics, like
Americanisms in speech, are apt to be Anglicanisms which died
out in England but survived in the New World." ^

All writers on English Constitutional History agree that
the original English practice was for a member of the House
of Commons to be a resident of the county or borough which
returned him. Stubbs calls this a requirement of the Common
Law. That it was the case can be seen from the words "de
comitatu tuo" in the writs of election addressed to the sheriffs
of the counties.

The first English statute restricting the counties to the
return of a resident as a member of the House of Commons
was 1 Henry V,^ and is perhaps a sign that some deviation
from the original practice had already sprung up. This law
was followed by several others on the main subject of Elections,
the principal one of which was that 8 Henry VI, ^ by which
both electors and elected were to be actually resident in the
county.^

It seems to be a point of uncertainty with all writers on
the English Constitution as to just when these laws began to
be evaded. Some think as early as the following reign, that
of Edward IV. ^"^ Uncertain as this is we are sure that by
the time of Elizabeth" they were quite generally disobeyed,
for in 1571 we find a bill introduced in the House of Com-
mons, the intent of which was to repeal as to the boroughs
the statute of Henry V and to legalize the innovation which
had sprung up.

The bill appears to have been dropped, but the debate
on it which occurred on April 19th has been preserved for us
in D'Ewes' Journal. ^^ The supporters of the bill advanced
the argument that a man could not be presumed to be wiser
for being a resident burgess, and also that the whole body of
the realm and its service was more important^and more to be
respected than any private regard of place or person.

•Lord, Rise and Growth of American Politics, I, 5. '» (1461-1483.)

' (1413-1422.) " (1558-1603.)

'(1422-1461.) " D'Ewes' Journal. 168-171.
» Taswell Langmead, 314.

14 GENERAL OBSERVATIONS

"This," says Hallam/^ "is a remarkable, and perhaps the
earliest assertion, of an important constitutional principle,
that each member of the House of Commons is deputed to
serve not only his constituents but for the whole kingdom;
a principle v/hich marks the distinction between a modern
English Parliament and such deputation of the estates as
were assembled in several continental kingdoms; a principle
to which the House of Commons is indebted for its weight
and dignity, as well as its beneficial efficiency, and which
none but the servile worshippers of the populace are even
found to gainsay. "^^

Those who took the other side of the question argued
that the rights and privileges of the "common man" ought
to have more consideration, but their main argument was the
interference of noblemen in elections in favor of non-resident
nominees.^^

The longest speech recorded in the debate was made by
some unnamed orator in opposition to the bill. The argu-
ment which he advanced in the following quotation is without
doubt the one that would be most commonly used by those
who believed in the residential qualification. He said:

"We who have never seen Bei'wick or St. Michael's Mount
can but blindly guess of them, albeit we look on the Maps
that came from thence, or see Letters of Instruction sent;
som.e one whom Observation, Experience, and due Considera-
tion of that Country hath taught, can more perfectly open
what shall in question thereof grow, and more effectually
reason thereupon, than the skillfullest otherwise whatsoever."'^

Bishop Stubbs says that it was due to the political jeal-
ousies of the Tudor times that strangers began to covet and
canvass for borough membership and began to encourage the
towns to violate the provisions of the act of Henry V. This
statute was often evaded by the admission of candidates to
free burgership.^''

" Hallam, I. 266.

'* If this view of representation existed in the United States the representatives in
Congress would be elected by each state at large — a practice which is only followed when
an election comes so soon after a reapportionment of representatives that the state cannot
be districted.

" Taswell Langmead, 314-315. '« D'Ewes' Journal, 169.

" The boroughs were much greater offenders in violating the resident act than were
the counties. Representation of counties by non-residents did not develop till after the
custom was well established in the boroughs.

GENERAL OBSERVATIONS 15

We find that at Lynn in 1603, Robert Hitcham, Esquire,
who had been elected was required to come and be made a
free burgess of the town. And in 1613 Hitcham and Sir
Henry Spelman, both non-residents, sought election as
representatives of the town. The corporation replied that
they intended to obey the statute of Henry V and elected
two citizens. ^^ There was another example of this practice
which perhaps changed or at least affected the course of
English history. In 1640 Cromwell was living at Ely but was
desirous of entering the House of Commons as a representa-
tive from Cambridge. The only difficulty in the way of this
project was that he was not a freeman of that borough.
This difficulty was surmounted by the Mayor of Cambridge
making him a freeman 'gratis' on the payment of one penny
into the poor fund. These preliminaries having been ar-
ranged he was duly elected a member of the first Parliament
of 1640, on March 25 of that year.^^

The laws of 1413, 1429, 1432, and 1444-45 were repealed
n 1774. Parliament in that year declared that the above Acts

'have been found by long usages to be unnecessary and have
become obsolete"

. . and so in order to

. . "obviate all doubt that may arise upon the same"

the statute books were cleared of all enactments relating

'to the residence of persons to be elected to serve in Parlia-
ment or of the persons by whom they are to be chosen." ^'^

By the words of the above act it will be seen that voting
by non-resident electors was also legalized. This custom had
grown up simultaneously with that of electing non-resident
representatives. It was almost a necessary adjunct of the
latter for many times a candidate had to bring a large number
of supporters with him on election day if he hoped to carry
the election.

The question that now presents itself for consideration is

"Stubbs, III, 439.

>» Porritt, I, 61: Sandford, Studies and Illustrations of the Great Rebellion.

" Porritt, I, 122: 14 George III, C. 58.

16 GENERAL OBSERVATIONS

why should such a custom as this one we have been studying,
grow up in the face of law after law on the subject? The
answer can be given perhaps in the following three reasons:

(a) In an early day it was considered a hardship not an
honor to serve in Parliament. So this office became open to
professional candidates.^^

(b) To the practice of borough mongering by which some
candidate unconnected with the place was sent down as a
representative by some influential person of the borough.
This grew up as a result of the great social changes in England
during the seventeenth century at which time there was a
great shift of population, causing large cities to spring up in
northwestern England and leaving once populous boroughs
practically uninhabited.

Even down to 1885 it was quite generally recognized that
a candidate for Parliament should either be a resident of the
county or at least own property there; in fact, a freehold
qualification existed until 1858. But to-day it is a well
recognized fact in England that a man may offer himself for
election in any borough or county regardless of his place of
residence.^^

We have noted three reasons for the beginning and
growth of the practice of non-resident representation. But
when these reasons have all disappeared by reason of im-
proved social conditions and the Reform Bill of 1832, we
find no change in the practice. In fact such a custom is
practically necessary under the Cabinet system of England;

>' An illustration of the indifference of the boroughs to representation is shown by the
incident of Torrington in Devonshire, which even obtained a charter exempting it from
sending burgesses to Parliament — Hallam, Middle Ages, III, 115.

In an early day the boroughs had to resort to an official called manucaptor whose
duty is was to see that the elected representative rendered service. Porritt, I, 5-6.

"The abuses in the above were remedied by the Reform Bill of 1832, although it did
not affect the resident feature.

" A few years ago a man who was a candidate for Parliament naively told Mr. Bryce
that he thought a candidate should at least live near enough to the county in which he
was a candidate that he could look into it from his window while shaving in the morning.
This particular man's view was probably influenced by the fact that his house lay just
outside the county in which he was a candidate.

GENERAL OBSERVATIONS 17

for the ministers are necessarily members of the House of
Commons. Oftimes a man who has attained great eminence
in some particular field of government is defeated for re-
election in his home district because of some temporary local
dissatisfaction.-'' But the English view, which differs so much
from that of the United States, is that no local opposition
must be allowed to rob the country as a whole of the services
of a very eminent man, therefore, he can stand for election
in any district of the kingdom.

It is interesting, and not altogether idle, to speculate on
which of these two systems, the English or that of the United
States, flowing from a common source, is the most natural
development for a free country. No less an authority than
Mr. Bryce gives as his opinion that the English practice
seems to be an exception due to special causes, while the
practice in the United States is that which one would naturally
expect to find in a free country where local self-government is
fully developed. And yet, after all, he feels that it would make
for better government if we should follow the English plan.

"That the restriction often rests on custom, not on law,
makes the case more serious. A law can be repealed, but
custom has to be unlearned ; the one may be done in a moment
of happy impulse, the other needs the teaching of long ex-
perience applied to receptive minds."

"The fact is that the Americans have ignored in all their
legislative, as in many of their administrative arrangements,
the differences of capacity between man and man. They
underrate the difficulties of government and overrate the
capacities of the man of common sense. Great are the bless-
ings of equality; but what follies are committed in its name." ^*

" Of the last five prime ministers who have sat in the House of Commons not a one
has represented his place of residence. Bryce, I, 183. David Lloyd George represented
hia home constituency when made prime minister.

«' Bryce, I, 487.

MASSACHUSETTS

In order properly to understand the system of representative
government which existed in Massachusetts it will be well to
review briefly the origin and constitution of the general court,
for by that name has the legislature of Massachusetts been
known from colonial times down to the present. The Com-
pany of Massachusetts Bay was a corporation, the governing
body of which was the general court. Its ofificers were a
governor, deputy governor and eighteen assistants, all to be
chosen out of the freemen of the company^ and by the freemen
of the company in annual election. The composition of the
court is shown by the following:

"And that any seven or more persons of the Assistants, to-
gether with the Governor or Deputie Governor, soe as-
sembled, shalbe saide, taken, helde and reputed to be, and
shalbe, a lull and sufficient Courte or Assemblie ... for the
handling, ordering and dispatching of all business . . . ." -

In March, 1629, the company received a royal charter,^
confirming the territorial grant which it had received from the
New England Council the March previous.^ By this charter
full governmental and corporate rights were bestowed upon
the company. The charter provided for four annual sessions
of the general court; the last Wednesday in Hilary, Easter,
Trinity, and Michaelmas.^ The general court was to have
the power of making laws and the only check imposed upon
it was that they were not to be repugnant to the statutes of
England.^

For a year after the charter was granted to the company
it remained in England. During this time the general court
met at various times but the business transacted was only
such business as any company interested in a colonization
scheme would need to perform. But when in March, 1630,
the company with its charter removed to America, by the mere

> Mass. Col. Records, I, 10.

« Ibid..

. I. 4.

'Ibid., I, 11.

» Ibid.,

I, 11.

' Ibid., I. 6-8.

' Ibid.,

I. 12.

MASSACHUSETTS 19

act of removal the corporation became a colony and the
general court became the law-making body of that colony. We
might also say that under the new conditions the term "free-
man" is synonomous with "stockholder" of the company as
first organized. The corporation was not a closed one, so the
number of the members constituting it could be indefinitely
enlarged. The power to admit freemen was in the general
court.'

Not all who came with Winthrop and his associates were
freemen in the sense of being members of the corporation.
Besides there were inhabitants already on the ground. In
1630 the officials of the company, that is, governor and
magistrates, were practically all the members of the cor-
poration residing in Massachusetts.^ But at the first general
court held at Boston, October 19, 1630, a large number of
persons, some of them old planters, petitioned for admission
as freemen.^ These not only were not admitted but the
officials of the colony drew themselves into a still more
compact oligarchy in direct violation of charter. The court
declared that assistants should be chosen by the freemen but
that the governor should be elected by the assistants and from
among their own number, also that the governor and assistants
should have the power to make and execute laws, and levy
taxes.^" It was as a result of the protest against this as-
sumption of extra-charter powers that the system of deputy
representation came into existence four years later.^^ Another
important factor in this was the rapid extension of settle-
ments which made it very laborious, if not impossible, for the
freemen to attend the general court in person and also the
great increase in the number of freemen.

The years between 1630 and 1634 were years of rapid
development of the general court into a representative
assembly. At the general court which met on May 18, 1631,
a most important act was passed acknowledging the violation

' Mass. Col. Records, I, 11. * Palfrey, I, 323.

» The student of colonial history will understand that this term "freemen" is not used
in contradistinction to the word slave or servant. By it is meant a man with full political
rights and privileges.

'• Mass. Col. Recs., I, 79. " Osgood, I, 156.

20 MASSACHUSETTS

of the charter in the act of the October previous, and pro-
viding that

"... once every year, att least, a generall courte shalbe
holden, att which Court it shalbe lawfull for the commons to
ppound any pson or psons whome they shall desire to be
chosen Assistants, etc." ^^

The act goes on to state that a majority of the "commons"
shall so elect and also that if they shall see cause they can
remove one or more of the assistants. ^^ The last sentence of
this act contains the famous requirement of citizenship
peculiar to the New England Colonies. ^^ Now that they had
a test by which prospective citizens could be measured, a
large number of those who applied at the October session of
1630 were admitted as freemen. And at nearly every session
of the court after that additions were made to the body of
freemen. The next year saw still more power put into the
hands of the freemen. At the general court which met on
May 9, 1632, the right of election of governor and deputy
governor was restored to the freemen assembled in general
court. Massachusetts was now a pure democracy, where each
freeman had a place in the law-making body of the state.

It is evident that even by this time the population had
spread into the surrounding country, for we find several towns^^
mentioned which were to appoint two citizens each to confer
with the court about raising a public stock. It seems not at
all unnatural that a demand for representation should come
just as soon as the expansion mentioned above reached the
point where each freeman himself could not attend the
general court. This demand came in 1634, hastened perhaps
by the fact that a tax had been levied by the assistants the
year before. Shortly before the session of the May court of

>» Mass. Col. Recs., I, 87. n An early example of recall.

" "To the end of the body of the commons may be preserved of honest and good men,
it was likewise ordered and agreed that for time to come no man shall be admitted to the
freedome of this body politicke but such as are members of some of the churches within the
lymitts of the same."

Mass. Col. Records, I, 87.

'» The settlements by the year 1632 were Boston, Salem, Watertown, Roxbury,
SaugU8(Lyiin), NeweTown (Cambridge), Charlestown, and Dorchester, Mass. Col. Records.
I, 95.

MASSACHUSETTS 21

1634, representatives from the towns waited upon Governor
Winthrop. They asked to see the patent and urged the
estabHshment of a system of representation. ^"^

While the governor did not view this request favorably,
the general court of 1634 acted upon it. An act was passed
providing that before every general court the freemen of each
plantation were to choose two or three deputies.'^ These
were to have a part in the making of laws, granting of lands,
and all public business. The election however of governor
and assistants was still to be left to the body of freemen
assembled in annual Court of Election.^* But the statement
that the towns could send two or three deputies did not mean
that it was left to their pleasure. In the Act a specific list of
towns (to the number of 7) was given with the apportionment
for each. For several years this continued to be the method.
When a town was admitted to the privilege of representation
the act by which it was so admitted always mentioned the
number of deputies it could choose.

From the year 1629 to 1635 we have traced the develop-
ment of the general court from the governing body of a
trading corporation, through its attempt to become an
oligarchial governing body down to its expansion as the
representative legislative body of a commonwealth. It had
not yet reached its final form. Two more changes were
necessary, but these both came within the next nine years.
In 1636 the legislative equality of the two branches was
acknowledged^^ and in 1644 the two branches ceased to sit
together as one house.^''

"Thus within a period of fourteen years from the transfer of
the government the Massachusetts legislature had assumed
its final form. It always bore, however, not only in name,
but in character, the marks of its origin. As in the corporation,
so in the colony, the general court was the source of power." ^^

'•Winthrop. I, 152, 153.

" For several years this is the word used instead of representatives.
'• Mass. Col. Records, I. 118-119. >• Ibid., I. 170.

■1 After this separation the governor presided over the Assistants while the Deputies
elected a Speaker annually.
« Osgood. I. 158.

22 MASSACHUSETTS

The court as it now stood was a wholly elective body. The
governor and assistants being chosen by the freemen collec-
tively, while the deputies were elected by a constituency in a
local district, that is, by towns.^^

At different times we find the general court passing re-
quirements^^ to which the towns had to conform in their
choice of deputies, but nearly sixty years passed before the
question is raised regarding residence and then not until the
first charter had been taken away and a new one substituted
for it. The only reference to residence in any act under the
old charter is found in a proposal of the general court in 1644.
In an effort to decrease the growing expense of the court, due
to the greater number of deputies seated each year, the
November court proposed a measure to reduce the number of
deputies to twenty and to make the shires the unit of repre-
sentation.^^

Two provisions of this proposal show that the English
idea of representation was the prevailing one. "And further
to y^ end y^ ablest gifted men may be made use of in so
weighty a work, it shall be at y^ liberty of y^ freemen to choose
them, in their own shires, or elsewhere, as they shall see best."

In order to avoid the possibility of two shires choosing the
same man the election was to be held on different days in
various shires; Suffolk voting first and sending the result
to Middlesex which was to vote on the next fourth day, send-
ing the result of her election and Suffolk's to Essex and
Norfolk which were combined into one under this proposed
scheme of representation. Evidently no action was taken
upon this proposition, for we see nothing further about it in the
records. About a year later the general court sought to bring

" Not the town as now generally understood but the New England town.

•• In 1635 the general court ordered all elections of deputies to be by ballot. From
this date all colonial elections were of this kind. Before this they had followed the English
plan of a "show of hands". It is fortunate for American political life that we early broke
away from a custom which had been productive of so much evil in the mother country.
Under the English procedure an unscrupulous official could bring about the election of
nearly any candidate he favored. When the day of election came the crowd assembled,
nominating speeches were made; each candidate made a speech and then the sheriff called
for a viva voce vote. The side able to respond with the greatest uproar, either aye or no,
could thus carry the day. If the vote was taken by a "show of hands" the sheriff decided
the election by "taking a view" of the number. The ballot was not used in Parliamentary
elections until 1872. (Stubbs, III. 417. 419-420.)

" Mass. Col. Recs., II, 88-89.

MASSACHUSETTS 23

about the same economy by providing that it should meet at
each of the three shire towns in order that each town sending
deputies should bear their expense.^*

It was not until the separation of the two houses of the
general court in 1644^^ that the names of deputies, together
with the names of towns from whence they came, appear in
the records.2^ So before this date it is impossible to tell
whether there were any cases of non-resident representation.
But from this date on there was much of it, especially in the
case of the more distant towns such as those in the Piscataqua
region^* and the ones in the Connecticut valley. It is impos-
sible to gather all the cases illustrating this, for quite often
in the records of the House of Deputies the names of the
towns from which the deputies came are omitted. But those
that can be given show the practice clearly enough.

In 1670 all the following men were officials of Boston:
Captain Thomas Clarke, Mr. Humphrey Davy, Lieutenant
Richard Cooke, and Captain Edwin Hutchinson, Com-
missioners; Captain Thomas Savage, moderator; and John
Richards and Captain William Davis, selectmen.^^ If one
were to make a list of colonial men who could be called
"professional representatives", the above group would be
such a list; for each one represented time and again some

" Mass. Col. Recs., II, 140 — The custom regarding pay fluctuated back and forth
between the towns and the colony at large. The March Court of 1635 made provisions
for the 'dyett' of the deputies while in actual attendance. Such expense was to be borne by
the colony treasury. (Col. Recs., I, 142.) In September, 1636, it was provided that
". . . the deputies debt shall be paid him in money or beaver."

(Col. Recs., I, 180.) Who was to pay him is not stated. But a change of sentiment seems
to have come for in October of the same year the following was passed:
. . . "That the charge of the deputies of the town be borne by the towns which they
came from, to ease the publicke".

Col. Recs., I, 183. On March 9, 1637 the deputies were restored to the payroll of the
colony but there was no mention as to the amount to be given them. (Col. Recs., I, 187.)
In May, 1638, another change was made again throwing the deputies onto their towns for
payment. The rate was to be two shillings and six pence per day
. . . "from the time of their going out — untill their return for their dyot and lodging."

"Mass. Col. Recs., II, 58.

" By this time it had been enacted that no town send more than two deputies. (Col.
RecB., I, 254.)

"Massachusetts had assumed control over this territory by 1641. In that year it
was given the privilege of sending
. . . "two deputies from the whole ryver."

(Col. Recs., I, 343.) On September 27, 1642, it was granted the privilege of sending one
from each town and in addition the court waived in their favor the qualification of church
membership. (Col. Recs., II, 29.)

«• Boston Town Records (1660-1701), pp. 52, 56.

24 MASSACHUSETTS

outlying town, and most of them were also Boston officials at
the time. Taking them in the order in which they have been
given, we will examine the record of each.

Thomas Clarke represented Newberry in the general
court of 1671 and 1672.^" In the same court he was one of
Boston's deputies and had been for ten years. This presents
an anomalous situation. Careful search has been made to
see if it were possible that two men of the same name*^ were
deputies that year but such was not the case. Search was also
made to find any similar case but only one was found, which
will be given later, except in the case of two neighboring
towns far distant from the seat of the general court. From
another source we learn that Edward Woodman and William
Titcomb, two residents, had been chosen deputies by Newberry
on March 6, 1671. But they must have declined to serve, for
shortly afterwards Richards and Clarke, both Boston men,
were chosen for the remainder of the year.^^

Humphrey Davy represented Billerica, in the general
courts of 1666-67 and 69;^^ and was Woodburn's representa-
tive for the years 1671 to 1678 inclusive.^'*

Lieutenant Richard Cooke represented Dover in 1670
and 1671 along with Richard Waldern, a resident.^^

Captain Edwin^^ Hutchinson was a Boston deputy in the
general court of 1658.^^ In the court of election of the year
1670 and 1671 we find him acting as deputy for Kittery.
Still later in the years 1672 and 1673 he represented Wood-
burn.^^

Captain Thomas Savage was one of Boston's representa-
tives in the general court of 1661 and 1662. In 1663 he repre-

>« Mass. Col. Recs., Vol. IV (2). 485, 507.

" A Captain Thomas Marshall represented Boston in 1650, Col. Recs. IV (2), 1.
Also a Captain Thomas Marshall was Lynn's representative for the years 1659-60-64-68.
These were different men, the latter returning to England during the Civil War and be-
coming a captain in the Commonwealth Army. (Mass. Col. Recs., IV (1), 364, 382, 416.)
Lewis, History of Lynn, 91, 106, 146, 148.

" Currier, History of Newberry, 678.

'• Mass. Col. Recs.. IV (2), 295, 331. 418.

» Ibid., IV (2), 485, 507. 551; V. 2.

"Ibid., IV (2), 449, 485.

•• Appears some places as Edward.

" Mass. Col. Recs., IV (1). 320.

•• Ibid.. V, 449, 485. 507, 551.

MASSACHUSETTS 25

sented Hingham, and in 1672 was deputy for Andover. The
first year he served for Andover he was elected speaker of the
House of Deputies.^^

John Richards represented Newberry in the years 1671-
72-73. In 1675 he appears as a deputy for Hadley/"

Captain William Davis, the last man on the list, was
Springfield's deputy in 1652, 1666, 1671, 1672, and 1776.
During one of the intervals of time when he was not serving
for Springfield, he appears as a deputy for Haverhill in the
general court of 1668.^^

There were two other residents of Boston who can as
justly be called "professional representatives" as any of the
men in the list given above. These are Captain William
Tynge and Captain John Hull.

Tynge represented Boston in 1644 and was at the same
time treasurer of the colony. He was also Boston's representa-
tive in the October court of 1646 and again in 1647.^^ In
1650 he appears as deputy for Dover'*^ and in 1649 and 1651
for Braintree.''^

Hull was one of the mint masters of the colony and though
a resident of Boston he was the first deputy to sit in the
general court for Westfield. Westfield was made a town in
1669 and was represented by Hull in the years 1671 to 1674
inclusive. In the court of 1676 he represented Concord and
in February court of 1680 was deputy for Salisbury .^^

But non-resident representatives were not confined to
Boston, as the large number of cases given above might
indicate. This will be seen from what follows.

As has already been stated, the first record that appears of
deputies, together with the towns they represented, is in
1644 when the two houses began to sit apart. In the general

•• Mass. Col. Recs.. IV (2), 1, 41, 71. 485. 507.

"Ibid.. IV (2). 485. 507. 551, 560; V. 42.

•■ Ibid.. Ill, 259; IV (2). 294, 362. 485, 507.

"Ibid.. Ill, 10, 79, 105.

•• There is a descrepancy in the records here. The General Court Records have him
enrolled as deputy for Dover (Col. Recs., IV (2), 2.), while the Deputies Record have him
as representing Braintree. (Col. Recs., Ill, 183.)

" Mass. Col. Recs.. III. 147. 220; IV (1). 37.

" Ibid.. IV (2), 432, 485. 507. 551; V. 2, 98, 260.

26 MASSACHUSETTS

court which met on May 29, of that year, we find the names
of Richard Dummer and Nathaniel Sparrawhawk as deputies
from Salisbury and Cambridge respectively. But at the
general court a year later the same men represent Newberry
and Wenham respectively.^^ In May, 1646, the records show
that Dummer and Sparrawhawk were again deputies from
their own towns, as two years previous while Wenham is
represented by Lieutenant Duncomb, a citizen of Dorchester,
auditor general of the colony, and a representative of his
home town in the general court of the year previous.'"'

Wenham's choice of a deputy first from Cambridge then
from Dorchester shows the tendency which was plainly marked
in the early days of the colony, at least, for the remote towns
to choose a representative either from Boston or some town
near Boston. Its choice of the auditor general illustrated
another tendency which can be quite plainly traced through
the records. That was for the outlying towns to choose some
man of prominence; some colonial ofificial, if they could find
one who was not already a deputy.

In the general court of 1645 Gloucester was represented
by Hugh Prichard, a resident of Roxbury and a deputy from
there in the court of the previous year.'**

Springfield first had a representative in the House of
Deputies in 1649. This was John Johnson, a resident of
Roxbury,^^ and surveyor general of the colony.^" He had
been a deputy from his home town in the years 1644 to 1648,
and was again in the year 1650." This was a beginning of
a large number of non-resident deputies which Springfield
elected to the general court. Its second representative was
Edward Holyoke, of Lynn, who served for Springfield in
1650 and 1660.^^ He had represented Lynn almost con-
tinuously from 1639 to 1648. Then as has already been stated
it was represented for five years by William Davis of Boston.
In 1653 it was represented by Captain Humphrey Atherton,

"Mass. Col. Recs., Ill, 1. 10. "Ibid., Ill, 1. 10.

"Ibid.. Ill, 54, 62. "Ibid., Ill, 147. 304.

»' Another illustration of the tendency mentioned in the case of Wenham.
" Mass. Col. Recs.. III. 183. " Ibid., IV (1), 416.

MASSACHUSETTS 27

a resident of Dorchester, and a representative from his home
town continuously from 1644 to 1651. At this time 1653,
he was major of the militia, surveyor general, and speaker of
the House of Deputies.^' When the contest over non-resi-
dent representatives came with Governor Phipps in 1693,
Springfield was one of the towns involved, for it was repre-
sented at the time by Benjamin Davis of Boston.^''

Dover after being granted representation in 1642 was
generally represented by a resident, but we have already seen
that it was for a time represented by two Boston men, Tynge
and Cooke, and Lieutenant John Baker of Ipswich was its
deputy in the year 1650.*^

Kittery and York were represented for the first time in
1 653. In the court of that year, as well as for three succeeding
years, Kittery was represented by John Wincoll, a resident of
Watertown and a deputy from his own town in 1658.^^ We
have already mentioned Kittery's representation by Edward
Hutchinson of Boston. In 1679^^ it was represented by
Major Richard Waldron of Dover, a prominent resident of the
Piscataqua country and a deputy for years from his own
town. York generally sent a resident as its deputy to the
general court. It was represented for years^^ by one of these,
Edward Rushworth. But in the December court of 1660 we
find it represented by Francis Littlefield, a resident of Wells.^^

"Mass. Col. Recs., III. 10. 68, 121, 183, 297, 401. This duplication of offices in the
hands of one man was a fact quite common in colonial times.

"A perusal of the list of SprinRfield's representatives for the first forty years shows
that for that length of time at least its representation was in the control of the leading
family, the Pynchons. From the date of her first deputy (1650) to the time of the contest
with Phipps (1693) Springfield had been represented in twenty-eight general courts. In
twenty of these the deputy was John Pynchon himself or some kinsman either by blood
or marriage. Davis, the Boston man to whom Phipps objected, was a grandson. Whether
such a paternalism existed in any other town is doubtful. Burt, I, 34-38.

•• Mass. Col. Recs., Ill, 183, There is some uncertainity as to the residence of Baker.
Two John Bakers appear in the Records, one of Wells and one of Ipswich. See Mass.
Col. Recs., Ill, 445.

•• Ibid.. Ill, 297, 340, 373, 384; IV (1). 120, 182, 222, 320, 372.

" Ibid..V. 211.

"Ibid.. IV (1), 120, 182, 222, 255, 321, 417.

•• Ibid.. IV (1), 158, 449. The May Court was the most important one and the one
most largely attended. If a town were represented in but one session of the court during
the year this was the one where we would find its deputy. But in the December Court of
1660 we find a much larger attendance than at the Court of Election in May. Towns
which were not represented in the latter now had a deputy present and quite a number
which only had one deputy in the former now had two. This would be evidence enough
to show that some business of unusual importance was in hand and turning to the pro-
ceedings we see that news of the Restoration had arrived and with it fear as to its result

28 MASSACHUSETTS

Now in the May Court of Elections Rushworth had been its
deputy. This shows us that deputies were not always chosen
for the whole year, although that was generally done.

Portsmouth, like York, generally elected a resident but
in 1654, Valentine Hill of Dover was its deputy, and in 1672
Richard Collicott of Boston;^" Hill represented his home
town in several sessions.^^

In 1658 Massachusetts extended its bounds still further
northeast and organized the territory around Casco Bay into
the two towns Scarborough and Falmouth. They were given
the privilege of sending one deputy jointly, to the general
court and two in special cases.^^ j^ the next court we find
them represented by Edward Rushworth of York.^' At
several courts they were jointly represented by a citizen of
one town or the other. But in 1673 and 1674 Scarborough
was represented by Peter Brackett of Braintree. Brackett
had been a deputy for his own town almost continuously
from 1653 to 1662.^^ Falmouth's only non-resident was
Richard Collicott of Boston, who appeared for it in 1669.
In 1672 Collicott represented both Portsmouth and Saco.*^
This is the second instance noted where one man appears as
deputy for two towns at the same time.^^

Even before the Casco Bay territory came under the
control of Massachusetts, the latter extended its jurisdiction
over Wells and Saco by a body of commissioners in July,
1653, and the towns were first represented in the general court
of the next year. They did not send deputies regularly but
when they did they were usually residents. Saco's repre-
sentation by a Boston man has been noted above.

on the continuation of the government in Massachusetts under the charter. The entire
proceedings of this session were confined to a long petition to the king; one to Parliament;
and a letter to the agents of the colony, Captain John Leverett, Richard Saltonstall and
Sir Henry Ashurst. (Mass. Col. Recs., IV (1), 449-456.)

«» Mass. Col. Recs., Ill, 340; IV (2). 507.

" Ibid., Ill, 259, 297, 373, 422. Until the year 1653 Portsmough appears in the records
as Strawberry Bank. In above year its name was changed and it was granted the privilege
of sending a deputy to the general court.

" Ibid., IV (1), 360.

•• Ibid., IV (1), 365. See page 27.

"Ibid., IV (2). 2, 41, 120. 255, 321, 416, 551, 561; V, 2.

" Ibid., IV (2), 418, 507.

" See page 24.

MASSACHUSETTS 29

Newberry quite often availed itself of the opportunity of
sending a non-resident deputy to the general court. In 1654
it was represented by John Saunders of Wells.^^

Billerica, as has already been noted, was represented for
three years by Humphrey Davy of Boston. Later in August
of 1676, and in the February court of 1680, its deputy was Job
Lane of Maiden.^*

Beverly presents but one case of non-residence representa-
tion and then their representative was taken from their
neighbor, Salem. Beverly had been made a town in 1668,
but its first deputy appears in the general court of 1672. In
that and the following years its deputy was Captain Thomas
Lathrop, who had previously been a deputy for his own town
of Salem. ^^

Salem also presents but one case of non-residence represen-
tation; that was in 1677 when it had for a deputy Thomas
Graves of Charlestown. Graves had already had experience
as deputy for his own town.''"

Chelmsford is another town which has but one instance of
representation by a non-resident, down to the time of the
contest with Phipps. At that time we find it to be one of the
towns which aroused the Governor's ire by returning a non-
resident. Previous to this, in 1667, it was represented by
Peter Tilton of Hadley who had already had experience as a
deputy for his own town and was returned for several years
thereafter.'''

"Mass. Col. Recs., Ill, 333, 336. Saunders had formerly lived in Newberry (Col.
Recs., Ill, 165). Several cases of removal occur in the early years of the colony which
might be taken for non-resident representation. For example, Brian Pendleton appears as
a deputy for Watertown in 1648, and for Strawberry Bank in 1652. After the name of
Strawberry Bank was changed to Portsmouth his name appears often both as deputy and
in other connections. He had evidently moved to the Piscataqua territory some time
between 1648 and 1653. (Mass. Col. Recs., Ill, 277).

The name of Joseph Hills appears in the records as a deputy from Cambridge,
Maiden and Newberry, but in none of these cases did he represent one town while living
in another. He was a resident of Cambridge and while so represented his town in the
years 1646 and 1647. When Maiden was set off from Cambridge as a separate town his
residence was within the new village. He was a deputy for Maiden for the years 1649-1656.
In 1665 he moved to Newberry and acted as a deputy for that place in 1667 and 1669.
(Mass. Col. Recs.. IV (2), 2, 41, 72. 100, 330, 417.) Corey's History of Maiden. 181-182.

•• Mass. Col. Recs.. V, 99. 261. 476. Corey, History of Maiden, 204.

"Ibid., IV (2). 100, 407. 507. 551.

"Jbid.,V, 77. 98, 132. 184.

" Ibid., IV (2). 142. 295. 330. 362. 449. 485. 507, 551; Judd's History of Hadley. 585.

30 MASSACHUSETTS

Hadley was given representation in the general court in
1661, and from that time until 1672 it was quite regularly
represented by residents. In the above year and again in
1673 and 1683 its deputy was Henry Phillips of Boston,
while in 1675 it was represented by John Richards, also of
Boston. ^2 In 1673, during the May Court, which as the an-
nual court of elections was considered most important,
Hadley was represented by the two residents, Peter Tilton
and Samuel Smith, but in the fall court Smith was replaced by
Phillips, a Boston resident. It had also been represented in
1669 by William Halton of Northampton,'''^ who was also a
deputy for his own town from 1664 to 1671 with but few inter-
missions.'^ It was during one of these years that he was
deputy for Hadley.

No deputies sat in the general court for Northampton until
1664. In the May court of that year we find Samuel Smith
and William Lewis, '^ both residents of Hadley and who had
represented Hadley previous to this time and did again
subsequently to it.'^ In August court of 1676 Northampton
was represented by Henry Phillips of Boston.''''

A retrospective glance at the instances which have been
given will show at once that it was the distant towns which
availed themselves of the privilege of electing non-residents
to represent them in the general court. But the word "distant"
meant something different then from what it does now. It
is said that it took people in Springfield three days of arduous
riding to reach the capital. Such towns as Boston, Charlestown,
Dorchester, Roxbury, Watertown, Lynn, and Cambridge
were always represented from among their own citizenship.
An inspection will also show, I think, that as the seventeenth
century progressed the towns availed themselves less and less
of this privilege. While the law and custom permitted non-
resident representation, yet the towns preferred to return
their own citizens as deputies except when distance, weather,
expense or some other consideration intervened.

'« Mass. Col. Recs.. IV (2), 113. 507, 561; V. 42. 421. " Ibid.. IV (2), 100.

" Ibid.. IV (2), 418. " Ibid., IV (2). 2. 41, 72. 117.

" Ibid.. IV (2). 117. 142, 295, 331, 449. 485. " Ibid.. V. 99.

MASSACHUSETTS 31

So far we have shown the practice of the colonists but
have said nothing of the law which was supposed to govern
the practice. With them the case was different from that in
England. In England during this same period non-resident
representation was practiced but was contrary to law. But
such was not the case in Massachusetts, as the following
quotations from the Body of Liberties of 1641, a compilation
of colonial law, bear witness :

"Any Shire or Towne shall have libertie to choose their
deputies whom and where they please for the General
Court. So be it they be free men, and have taken the oath
of fealty, and Inhabiting in this Jurisdiction." ''^

"It is the libertie of the freemen to choose such depities
for the General Court out of themselves, either in their owne
Towns or elsewhere as they judge fitest." ^^

Also the following:

"And the freemen of any shire or town, have liberty to
choose such Deputies for the General Court, either in their
own shire. Town or elsewhere, as they judge fittest, so be it
they be freemen, and inhabiting this jurisdiction." s"

From the time when Andros assumed charge of Mas-
sachusetts under royal authority until Governor Phipps
brought the new charter in 1692 we have no records; for
during the Andros regime the general court did not meet.
As the charter named the twenty-eight councilors who were
to serve for the first year, the first election held under the
new charter was simply for deputies for the towns. In this
court, which met on June 8th, 1692, we find for the first
time the representatives from twenty towns which had
formerly been in New Plymouth Colony. ^^ This was in
accordance with the new charter which placed all this terri-
tory in the province of Massachusetts.

The election of May, 1693, was the first opportunity the
country had of voicing its approval or disapproval of the
councilors named by the king in the charter. At the election

" Mass. Col. Laws, 1889, 47 (Revision of 1660). »» Ibid., 1889, 145.

'• Ibid., 1889, 49. «> Mass. Acts and Resolves, VII, 8.

32 MASSACHUSETTS

of this date six prominent colonists, former assistants, but
who had been left out of the council as named in the charter,
were chosen councilors, while ten, in all, of those named in
the charter were displaced by new men. Among the six was
Elisha Cooke, a prominent Boston man. His election was
promptly negatived by Phipps, probably because he had
vigorously opposed Phipps' appointment.^^

This veto of Cooke's name added fuel to the dissatisfaction
already felt toward Phipps. Many were opposed to the whole
scheme of government under the new charter and so would
have opposed any governor under such conditions. The
subjecting of laws to a double veto with the long period of
uncertainty till word could come of royal approval or dis-
approval was very distasteful to the colonists who had been
accustomed to making their own laws without let or hindrance.
In addition to all the above the governor had been involved
in two street brawls, first with Brenton, the royal collector of
customs, and then with a Captain Short, commander of a
royal frigate.

The newly elected House of Deputies met on May 31,
1693, and elected William Bond speaker. It was the day
following that the governor refused to approve Cooke. ^
The negativing of Cooke was the turning point in Phipps'
career as governor, for soon thereafter petitions and letters
poured in for his withdrawal, while in the general court he
arrayed against him an opposition which he sought to crush
and did, by the enactment of a non-resident representative,
act. There were some non-residents in this body. Major
John Pynchon had been sent as deputy for Springfield but
was chosen a member of the Council, so Benjamin Davis of
Boston was selected as his successor.^ Daniel Allen of Boston
represented Oxford. ^^

It was not long until the governor was in a contest
with the House over a bill entitled,

"Hutchinson (Second Edition), II, 70. Cooke had opposed the new charter while
Phipps and Mather favored it. All three were the colony's agents in England at the time.
"Colonial Papers (1693-96), 111.
" Mass. Acts and Resolves, VII, 21. " Ibid., VII, 20, 29.

MASSACHUSETTS 33

. . . "An Additional Bill for Regulating the House of
Representatives."

This failed to pass. What its provisions were we do not
know, for no copy of its has come down to us. There was also
a difference between the governor and the house over the
treasurership of the province. The house proving so re-
fractory the governor dissolved it on July 15. On this date,
Sewall writes in his diary

. . . "About noon Mr. Willard prays, the Asemblymen
being sent for. Presently after the Governor stands up and
dissolves the Assembly. Was much disgusted about the old
Treasurer, and about the not passing of the Bill to regulate
the House of Representatives." ^^

Writs were issued for the election of a new House of
Deputies to meet on September 27, 1693. But a quorum did
not appear, no deputies coming at all from the counties of
Hampshire and York, and, on September 28, new writs were
issued for a session to be held on November 8, 1693.^^ When
the newly elected House met it elected Captain Nathaniel
Byfield speaker. He, though a resident of Boston, repre-
sented Bristol at this time,^^ and other non-resident repre-
sentatives appeared; Daniel Allen of Boston as deputy for
Marblehead,^^ and Captain John Browne of Marblehead as
deputy for Manchester.^"

By this time the opposition to the governor in the colony
was becoming so great and so many persons were demanding
his recall that his supporters desired the general court to
petition the king for his retention as governor. This matter
met strong opposition in the newly elected House, an op-
position which centered in Boston. In addition to having
her citizens frequently chosen to represent outlying towns
Boston had a larger representation than any other town
of the province. By an act passed November 30, 1692, entitled

"An Act for Ascertaining the Number and Regulating the
Hou?e of Representatives,"

" Sewall. I. 380. '• Ibid.. VII, 29.

" Mass. Acts and Resolves, VII, 29. " Ibid.. VII, 30.

•• Ibid.. VII. 30.
3

34 MASSACHUSETTS

. . . her representation had been raised by special enact-
ment to four. No other town had more than two.^^

The governor's opponents charged that because of the
objection of the Boston men to vote for a petition favorable
to the governor he determined to reduce Boston's power in
the House.^- At any rate he had a clause inserted in a bill
already before the House which read as follows:

"That not any Town in this Province shall chuse any
Representative, unless such be a Freeholder and Resident
in that Town or Towns, such are chosen to Represent." ^^

The title of the bill into which this was inserted was

"An Act to prevent default of Appearance of Represen-
tatives to Serve in the General Assembly."

Its other provisions differ but little from former laws
of the colony on the same subject. In all probability it was
the same bill which failed to pass in the May previous.

Whatever brought on the contest, the governor and House
were soon in conflict. On November 13, the House demanded
the privilege of appointing their own sergeant-at-arms. Their
messenger and doorkeeper were appointees of the governor
and council and the House felt that their interest would lie
with the power that appointed them.^* On Friday, Novem-
ber 17, the speaker adjourned the House until Tuesday the
21st without consulting the governor. When the House met
on the 21st the governor sent them word that he had dis-
missed the speaker. They at once sent a committee of five to
wait on the governor and to ask him for what cause he did this.
He replied:

. . . "for sundry disorders committed in the house."

The matter was arranged, without the speaker being dis-
missed, by the entering on the record the House's acknowl-
edgment of error, request for pardon and promise not to

•' Mass. Acts and Resolves, I, 88.
" See two letters below.

"Laws of Mass. (1714). .S4; (1726). 55; (1742), 54; (1759), 48; Acts and Resolves
of the Province of Mass. Bay, I, 147

•• Mass. Acts and Resolves, VII, 391, Archives, Vol. 48, 221.

MASSACHUSETTS 35

offend again. ^^ On the very next day the House approved
fourteen items in an account bill but did not approve a pro-
posed grant of £500 to the governor. ^^

On this same day the Council sent to the House the pro-
posed non-residence Act. This at once brought a protest
from the House signed by twenty-one members,"

". . . alleging the vote was contrary to Charter, Custom of
England, of the Province, hindered men of the fairest estates
from Representing a Town where their Estates lay, except
also resident; might prove destructive to the Province." ^^

There seems to be some doubt whether the twenty-one
represented the adverse vote on this measure or whether this
was simply a signed protest. The vote on the final passage
was twenty-four to twenty-six as we shall see below. That
this was simply a protest is borne out by the fact that it was
signed by only two of Boston's representatives, Townsend
and Thornton. ^^ On a bill aimed specifically at their city
we should expect them all to vote adversely which they
probably did.

The bill was finally passed on November 28,^°° by a vote of
26 to 24 in the House and 9 to 8 in the Council. In the latter
body the lieutenant-governor opposed the measure while
Sewall supported it.^''^ It will be remembered that he had
acted as deputy for Westlield in 1683.'"-

In the opposition which this constitutional innovation
aroused Increase Mather was charged with being its author
as much as Phipps. If this charge was true it is only another
example of the influence of the clergy in the early political life
of Massachusetts. That the Mathers were active in the
political life of the time is well known, as is Cotton Mather's
part in obtaining the new charter and Phipps' appointment

" Sewall, I, 385; Mass. Acts and Resolves VII, 391, Council Recs. VI, 309.

"Colonial Papers (1693-96), 209.

•' Mass. Acts and Resolves, VII, 391; Colonial Papers (1693-96), 209.

•« Sewall, I, 38.S.

•• Ibid., I, 386. Boston's representatives in this court were: Major Pen Townsend,
Edward Bloomfield, Captain Theophilus Frary and Timothy Thornton. Boston Recs.
1660-1701, 216; Mass. Acts and Resolves, VII, 44.

""Acts and Resolves, I, 148.

'•« Sewall, I, 387. ■». ihid., 1,57.

36 MASSACHUSETTS

as first governor under it. Considering the part Mather
played in the appointment and also taking into consideration
that he was in a sense the governor's spiritual father, it is not
strange that he would have some weight with the administra-
tion. Under date of June 8, 1693, Sewall records that there
was great wrath among the people "about Mr. Cooke's being
refused and 'tis supposed Mr. Mather is the cause". ^^^

In a letter of June 12, 1694, most of which will be quoted
later, from Nathaniel Byfield to Joseph Dudley in London,
regarding the non-resident act, Byfield charges that Mather
inspired the act.'*^! In an account of New England's affairs
written by a Boston man a few years after the events we have
enumerated took place, we find the following:

"It is said, that anno 1693, there were some Boston
gentlemen representatives from some of the out-towns,

but not agreeable to the then Rev. I. M. th r; Mr.

B f d for Bristol is mentioned; Mr. M of

great interest with the weak Gov. Phipps, and with the de-
votionally bigoted house, procured this act." ^°^

Whatever may be the truth in the above charges we do
know that Mather was a great admirer of Phipps. His life
of Phipps is highly eulogistic throughout and the character-
istics which he ascribes to him are hardly borne out by con-
temporary evidence. When he says,

"had the country had the choice of their own governor,
'tis judged their votes, more than forty to one, would still
have fallen upon him to have been the man ; and the Gen-
eral Assembly therefore on all occasions renewed their peti-
tions unto the king for his continuance" ^°®

he certainly let his zeal impair the truth of his statement.

The law of November 28, 1693, was first operative in
effecting the choice of deputies for the general court of May
30, 1694. The puzzling thing is that we do not find protest
after protest pouring in from the towns against this inter-

'" Sewall, 1.379. "'Colonial Papers (1693-96). 294-295.

'" DouRlas. Summary I. 506. Hutchinson quotes the above but does not view it
sympathetically and calls attention to Douglas' habit of judging men's actions by his
personal friendship or dislike for them. (Hutchinson II. 75-80).

>•• Magnalia, I. 202. 207.

MASSACHUSETTS 37

ference with a deep-seated custom. Springfield is the only
one which did send such a protest, but did it by the hand of a
non-resident deputy directly in defiance of the law against
which she protested. In town meeting on May 17, 1694,
Captain Benjamin Davis of Boston, was chosen deputy and
was instructed to lay before the general court the clause in
the charter that the . . .

"Representatives for ye Qenll Corte may be accepted when
chosen in the Province." ^°'

But Springfield was not the only town which violated the
new law, for when the House met on May 30, 1694, there were
six deputies representing towns in which they did not live.
When the governor heard this he played a Cromwellian part
by rushing into the House hatless and ordering all non-
residents to leave.

The only contemporary evidence we have of the events
at this particular time is contained in two letters. We can do
no better than to quote these quite at length. In a letter
dated Boston, June 12, 1694, Nathaniel Byfield wrote to
Joseph Dudley in London, an account of this session of the
general court.^''^

". . . I had been returned for Bristol, Captain Davis
for Springfield, Samuel Legge for Marblehead, Captain
Disley^"^ for Oxford, Timothy Clarke for Chencford"" and
Ebenezer Thornton^" for Swansea. On our coming in the
governor said that there were many more of the gentlemen of
Boston than could serve for that town, and that, for reason
which he would give later, I, Davis, Dudley [,] Clarke and
Captain Foxcroft"'^ should not be sworn. The rest being
sworn, not without confusion. I told the Governor that the
House of Representatives were proper judges of their own

'•' Burt's History of Springfield, II, 334.

■•'Colonial Papers (1693-1696). 294-295.
'•• In the letters of the time and even in the public records there was great variation and
apparent carelessness in the spelling of proper names. The name Disley does not appear
in the Records and neither was Oxford represented in that session but Captain Dudley
of Roxbury was Medfield's deputy. (Mass. Acts and Resolves, VII, 44). This is the man
meant without much doubt for the name Dudley appears later in the letter.

"• Chelmsford — Acts and Resolves, VII, 45.

"> Should be Brenton. Ibid.. VII, 45.

'" The records make no mention of a representative of this name but such a man is
mentioned by Sewall (1,386) as one of the signers of the petition of protest.

. •' ? ^ \' '"^

-■^ (^ J* o &

38 MASSACHUSETTS

members, but he commanded silence; and when Samuel
Legge, having held up his hand among the rest came forward
to sign, he was stopped by the governor for being a non-
resident of Marblehead. After some discuorse among our-
selves, we five agreed to go again to the governor and Council,
with myself as spokesman, to claim to be sworn in as duly
elected members. We did so accordingly and I make the
claim, though the governor kept forbidding me to speak,
and threatened me if I did not hold my tongue. We then
returned to our own House, having told the Governor that
what we had done was the least we could do. In the House
of Representatives Captain Legge took his stand and said he
would not go out for all the governor, until rejected by the
House. The governor, hearing of this, came down to the
representatives in fury without his hat, said he had heard
that a member against whom he had objected, had refused to
leave the House unless the House put him out, and that he
wished to know who it was. Legge at once came forward,
and the Gov. said he had nothing against him and wished
he had been returned for Boston, in which case he could
freely have embraced, but as to the others, if the House
did not turn them out he would turn them out himself. Now
if the making of such a law (which we hope you will get
negatived), and the refusal to swear duly elected members
be allowed, so that a governor shall be able to pack the
Assembly, farewell to all good; and I shall find another place
to live in.

That law is contrary to our Charter, though to our shame
be it spoken, we infringe on our own privileges simply to be
revenged of particular persons. Mr. J. M."' said a month
ago that, but for myself, that law would not have been
passed "

The other letter,"* bearing date of November 1, 1694, was
evidently written by a visitor in the colony to a friend in
London. We have not the name of either the writer or the
addressee.

"It was very surprising to me to see the laborious methods
taken to obtain an address from the general assembly here,
for the continuance of Sir William in the government. The
opposers were gentlemen, principally of Boston, who were too

"• In the Records immediately following these initials we find the parenthesis (Joshua
Moody or Increase Mather).
"• Hutchinson, II. 79-80.

MASSACHUSSETTS 39

near Sir William to think well of him, but served in the House
for several towns and villages at some distance, where some
of them were born, and others had their estates and improve-
ments above any dwellers in the place for which they served.
To be rid of them all at once, a bill was brought in, or rather
a clause brought into the bill that no man whatsoever should
serve in the house of commons for any town, unless where he
did at that time live and dwell, which passed with the dis-
sent of twenty-four, the whole house consisting of fifty and
with some heat in the upper house. Sir William hereupon
rushes into the house of commons and drives out the non-
residents, and I not mistaken if either for estates or loyalty
they left any of their equals in that house."

Remembering the political independence which char-
acterized Massachusetts throughout her colonial and pro-
vincial history one would expect this sweeping constitutional
change to arouse a storm of opposition. But it evidently did
not. The town records of Boston and the other towns are
practically silent on the matter. A perusal of the members
elected to the next general court which met on May 29, 1695,
will not show a single case of non-resident representation."'
Whether the importance of the change was overshadowed by
the excitement and terror of the witchcraft craze which had
just passed its zenith it is impossible to tell, but it certainly
did not meet with the antogonism we might expect.

Evidently there were still some who believed that under the
old method men of more ability were elected to the House of
Deputies. This was probably true. Ability of the House of
Deputies as a whole had been purchased at the expense of the
independence of the outlying towns and at the expense of
giving Boston a preponderate influence in colonial affairs.

Sixty years later a colonial historian in commenting on this
change in the constitution plainly shows where his sympathies
lay:

"A gentleman of good natural interest and resident in the
province; a man of reading, observation, and daily conversant
with aflfairs of policy and commerce, is certainly better
qualified for a legislator, than a retailer of rum and small

"• Mass. Acts and Resolves. VII, 72-73.

40 MASSACHUSSETTS

beer called a tavern keeper, in a poor, obscure, country town,
remote from all business; thus this countryman will not be
diverted from the most necessary and beneficial labor of culti-
vating the ground, his proper qualification, to attend state
affairs, of which he may be supposed grossly and invincibly
ignorant; thus the poor township, by gentlemen at large
serving gratis or generously as the quota of the township, will
be freed from the growing charge of subsisting a useless
representative."^^^

Governor Phipps' action seems to have settled the matter
in Massachusetts for all time. In 1695 and again in 1698 the
General Court prescribed the form of writ to be used in
calling a meeting of that body. These two are practically
identical, the latter one reading in part:

"William the Third ... to our Sheriff. . . . We
command, that upon receipt hereof, you forthwith make out
your Precepts, directed unto the Selectmen of each respective
Town within your Precinct, Requiring them to cause the
Freeholders, and other Inhabitants of their several Towns,
duly Qualified ... to assemble at such Time and Place,
as they shall appoint, to Elect and Depute one or more
persons (being Freeholders and resident in the same Towne)

The next time we find the matter mentioned is in an act
entitled,

"An Act in addition to an act entitled 'An Act for As-
certaining the number, and regulating the House of Repre-
sentatives',""^

passed on April 24, 1731. It contains the usual residential
qualification.

Nothing further appears in Massachusetts' law, so the re-
quirement must have become a fully accepted part of state
law and custom. In the constitution of 1779-1780 the prin-
ciple was maintained"' the matter not even being discussed in

"• Douslass, Summary I, 507.

"» Mass. Acts and Resolves, I. 315; Acts and Laws, 118-119, Act No. 80.

"'Ibid., II. 592. 593.

"•Journal of the Convention. Senate, Chap. I, Sec. II. Art. V; Houae, Chap. 1,
Sec. Ill, Art. IV.

MASSACHUSSETTS 41

the convention. Some qualifications for representatives were
clebated^2° but the one that he should live in the district
represented had by this time become so well established that
it found no opponents.

"• Journal of the Convention, 77, 125.

NEW PLYMOUTH

The governing body of New Plymouth as in the other New
England colonies was the general court. This consisted of the
governor, assistants, and all the freemen of the colony. Until
1632 the settlement was compact and hence it was no hardship
for the freemen to attend the three annual meetings of the
Court. But about this time outlying settlements began to
spring up and we find Governor Bradford and others be-
moaning the fact.'

The first reference to the expansion of settlements found
in the records of the colony is in 1636 when a committee con-
sisting of four from Plymouth, two from Scituate, and two
from Duxbury (Duxburrow) was appointed by the general
court meeting on October fourth of that year, to join with the
governor and assistants in codifying the laws of the colony.^
An expansion of settlements brought with it the inevitable
demand for representation and this was granted on March 5,
1639, by the following act:

"Whereas complaint was made that the freemen were put
to many inconveniences and great expenses by their continual
attendance at the Courts. It is therefore enacted by the
Court for the ease of the several Colonies and Townes within
the Government That every Towne shall make choyce of two
of their ffreemen and the Towne of Plymouth of foure to the
Committees or Deputies to joyne with the Bench to enact
and make all such laws and ordinances as shalbe judged to be
good and wholesome for the whole "

Here follows a provision by which the freemen at the general
court of election could repeal any law so passed and enact
one to suit themselves. The act then continues:

". . . and that every Township shall beare their Com-
mittees charges and that such as are not ffreemen but have
taken the Oath of fidelitie and are masters of famylies and
Inhabitants of the said Townes as they are to beare their
part in the charges of their Committees so to have a vote in

' Bradford. History of Plymouth, 303. » Plymouth Records, I, 43-44; XI, 6.

NEW PLYMOUTH 43

the choyce of them provided they choose them onely of the
ffreemen of the said Towne whereof they are."^

At a general court which met on June 4, 1639, deputies
from seven towns appeared as a result of the privilege granted
by the above law.^ But this does not mean that New Ply-
mouth's general court was at once changed from a primary
to a representative assembly. This transition was not
completed for a number of years for freemen still appeared
in person at the annual court of Election.^ This act of 1639
plainly lays down a residential qualification and that it was
obeyed is shown by a careful checking of the lists of deputies
or "committees" between 1639 and 1646, the date of the next
law on the subject. Such a checking fails to reveal a single
violation of the residential requirement.

The law referred to above, passed on October 20, 1646,
confirmed the practice of all freemen coming to the court of
election, but the opening sentence shows that a residential
qualification was still operative for deputies:

"Whereas the Townes formerly were to send their deputies
(which must arise out of their freemen) to attend the 3
general Courts "^

Plymouth laws were all revised in 1658.^ In this revision
the law of 1639 regarding Deputies reads:

". . . It is therefore enacted by the Court and the
authorities thereof . . . that every towne shall make
choise of two of their fifreemen . . . provided they choose
them only of the fTreemen of the same towne whereof thev
are. . . ."»

Also the law of 1646 when revised retained exactly the same
wording it formerly had.

The next and last revision of law in New Plymouth colony
was in 1671. Article 7 of the chapter on Courts reads:

"It is Enacted, That each Township in this Jurisdiction
do Annually, Elect and Choose one or two fit men out of the
Freemen, for their Deputies. . . ."'

•Plymouth Records.. XI, 31; Brigham, Laws. 63.

'Ibid., I. 126. 'Ibid., XI, Parts 11 and III.

'Ibid., Ill, 174; XI. 155. 'Ibid., XI, 169.

• Ibid.. XI. 54. • Brigham, 259.

44 NEW PLYMOUTH

While this does not specifically mention that only a resident
must be chosen, yet in the light of what had gone before a
residential qualification is implied without a doubt.

So we have in New Plymouth the interesting example of a
colony differing from all her New England neighbors in regard
to a residential qualification for deputies in the general court.
The question which naturally presents itself is, Why this
difference? The colony Records themselves give us no an-
swer, neither do the contemporary writings of the time such
as those of Governor Bradford and Secretary Morton. Hence
any reason assigned must be pure inference.

But several possibilities suggest themselves. The amount
of importance to attach to any one of them must be left to
the judgment of the reader:

(1) Considering the compactness of the colony during
most of its separate existence it is not surprising that in
practice the towns chose residents to represent them. The
surprising thing is that it was required by law.

(2) No city developed at the political centre of the colony,
as in Massachusetts, on which the remote towns could draw
for able representatives. Plymouth (town) had a hard time
to hold her own and at the time of the colony's absorption
by Massachusetts there were several towns in the colony
which rivaled her in size and importance.

(3) New Plymouth never developed a political conscious-
ness as did Massachusetts, for example: No political parties
developed and no governor, so far as the records show, ever
met with any opposition on election day. The position and
title of freeman with its attendant privileges and duties were
not eagerly sought as in some colonies. On the other hand,
that dignity, with the political responsibilities attached, was
often evaded.

(4) The explanation for which we are searching may be
found in Plymouth's strict conformance to English law.
The contrast between New Plymouth and Massachusetts in
this regard is plainly evident on every page of the colonial
records. Writs, which in Massachusetts were issued in the
name of the colony, in Plymouth, were issued in the name
of the ruling sovereign of England while the royal commis-
sioners of 1664 who were received with scant courtesy by
Massachusetts were loyally welcomed by New Plymouth.

NEW PLYMOUTH 45

In all things, New Plymouth was loyal to English law and
tradition.

In England at this time although non-residence repre-
sentation was common, yet the strict letter of the law de-
manded that a member of the House of Commons must be a
resident of the county or borough returning him.^° In New
Plymouth the requirement may thus have been a conscious
adaptation of English law despite the tendency of English
practice.

"See Chapter I.

Note: In an attempt to find if any town in the colony ever attempted to violate the
requirement of sending a resident to represent it in the general court, I have checked,
systematically and thoroughly, every list of delegates which appears in the records. Not
a single case of non-residence representation is shown.

NEW HAMPSHIRE

This colony presents the most varied legislative history of
any of the New England colonies. In 1641 Massachusetts
extended her control over what was called the Piscataqua
territory and from that date until 1679 the towns of this
territory were represented in the general court of Massa-
chusetts. The cases of non-resident representation during
these years have already been given in the chapter on Massa-
chusetts.

When Randolph was urging his claims against Massa-
chusetts in 1677 the Privy Council submitted the conflicting
claims regarding territorial and governmental control of New
Hampshire to the law officers of the crown. Two points of
their decision were:

(1) Massachusetts' northern boundary extended three
miles north of the Merrimac, and

(2) Massachusetts had no rights of government over
New Hampshire.^

Through the efforts of the Mason heirs, aided by Randolph,
Massachusetts was ordered, in 1679, to withdraw govern-
mental control from New Hampshire. By a commission which
passed the Great Seal, September 18, 1679,^ provision was
made for a president and council. This was brought to
Portsmouth on January 1, 1680, by Edward Randolph, and
according to Belknap the local men named in it as president
and council reluctantly assumed their new duties.' Their
reluctance shows that the change was not a welcome one.
There is little doubt that the majority of people of the colony
wished to remain under the government of Massachusetts.
Besides the six men named as councilors by the com-
mission the council and president were authorized to choose
three other councilors. The president and five councilors
were a quorum for transacting business.^ The commission

'Colonial Papers, 1677-1680. 'Belknap, I, 175.

•New Hampshire Provincial Papers, I, 373. » N. H. Prov. Papers, I, 375.

NEW HAMPSHIRE 47

further provided that within three months after the council
was sworn in they were to issue a summons for a general
assembly of the province

. . . "using and observing there such rules and methods —
as they shall judge most convenient." ^

In the writs for the first election under this provision the
electors were mentioned by name," an unusual proceeding
and one that differed radically from the other New England
colonies whose towns were the sole judges of the qualifications
imposed for citizenship.

This assembly met at Portsmouth on March 16, 1680.
There were eleven deputies present; three each from Ports-
mouth, Dover, and Hampton, and two from Exeter.^ Among
the laws passed by this assembly was one regulating the
election of deputies. This provided that the constables of
each town were to

. . . "call together the freemen of their respective towns on
the first Monday in February, annually and from among
themselves to make their selection of Deputies to ye General
Assembly." ^

A strict interpretation of this would mean, without doubt,
that a town was restricted to the choice of one of its own
citizens. That such was the intention of the law hardly seems
probable. It is more probable that a chance wording makes
such an interpretation possible. The assembly was to meet
in Portsmouth on the first Tuesday of March, annually. The
number of deputies was limited to eleven, distributed among
the towns in the same proportion mentioned above. ^

New Hampshire continued to be governed by a council
and assembly composed almost entirely^" of local men until
1682. In March of that year Edward Cranfield was ap-
pointed governor. His commission was dated May 9, 1682,
and he arrived in the province on October 4," of the same year.

» N. H. Prov. Papers, I, 379. » N. H. Prov. Papers. I, 408.

• Belknap. I, 177. 'Ibid..!., 117. ' Ibid., 1, 40$.

'•Two Englishmen, Mason and Chamberlain, had been added.
" N. H. Laws, r, 48.

48 NEW HAMPSHIRE

His commission was long and elaborate and was similar to
those which Great Britain was beginning to issue to royal
governors. With only one provision of this are we interested.
That is the one providing for the continuance of the assembly.
The governor was granted full power and authority :

". . . from time to time as need shall require to sum-
mon and call general assemblyes of the freeholders within
your government, in such manner and form as by the advice
of our said Council you shall find most convenient for our
Service and the good of our said province. . . ." ^^

The period from 1679 to 1686 was New Hampshire's first
experience as a separate provincial government. During this
time seven general assemblies met, the last one convening on
July 22, 1684.'^ During Cranfield's administration he was in
constant trouble with the various assemblies and one would
scarcely meet until angered by some act or by its refusal to
do his bidding he would dissolve it. Consequently the legisla-
tive record for that period is very brief. Of these seven as-
semblies we know the names of only the deputies constituting
the first one. So there is absolutely no way to tell to what
extent, if any, non-residence representation was practiced in
New Hampshire during its first experience as a separate
province.

From the arrival of Joseph Dudley as President of the
Dominion of New England, on May 25, 1686, to the uprising
against Andros on April 18, 1689, New Hampshire was again
a part of an association of colonies arbitrarily combined into
one government. It was during this period that the repre-
sentative assemblies of all New England were in abeyance.

When the officials of the Dominion had been sent to
England as prisoners the commonwealth governments of New
England at once re-assumed their old form. New Hampshire,
a royal province, but without a royal official in it, was left
without government of any kind,

. . . "either by royal commission, union with other colonies,
or federation of the towns themselves." "

■• N. H. Laws. I, 50. '• Ibid.. I. 74. "Ibid., I. 259.

NEW HAMPSHIRE 49

This portion of New Hampshire history has been called the
Second Period of Local Self-Government.^^ A strong effort
was made to bring about a federation of the towns. Three
of the towns favored this but Hampton was divided into two
factions over the question. A proposed form of governments^
was drawn up by a convention, composed of deputies from
each town, which met in Portsmouth on January 24, 1690.
Hampton's objection, together with the knowledge of their
inadequate means of defence in the war whose ravages were
just beginning, forced the towns of New Hampshire to
again turn to Massachusetts. On February 20, 1690, a
petition signed by about 350 inhabitants of New Hampshire,
was drawn up praying to be taken under the protection of
Massachusetts. s^ The governor and council of Massachusetts
approved this petition on February 28, 1690, and it was con-
firmed by the general court on March 19.^^

During this second union with Massachusetts, Portsmouth
was the only town which sent deputies to Boston. In 1690
its deputies were Elias Stileman and John Foster. The
former was a resident of Portsmouth but the latter lived in
Boston. He was one of the town Commissioners at this time
and also one of the three commissioners^^ for conducting the
first Intercolonial War which had already begun. In 1691
her deputies were John Pickering, a citizen, and Richard
Waldron, of Dover.^" In 1692 Waldron again represented
Portsmouth, this time serving alone.

At this time it was the wish of a majority of the people of
New Hampshire to remain under the government of Massa-
chusetts and petitions were sent to that effect to the agents of
Massachusetts who were in England soliciting for a new
charter.^* What brought forth these petitions was the knowl-
edge that Samuel Allen, a merchant of London who had
purchased the Mason Claims, was striving to have himself
appointed governor of New Hampshire. Allen's importunate

>• N. H. Laws, I. LXXXII. '• N. H. Laws. I, 378, 400, 401. 420, 843.

"Ibid., I. 260. '-'Ibid., I. 14.

" N. H. Prov. Papers, II, 34-39. " Belknap, I, 239.

'•76«(i., I, 267.

50 NEW HAMPSHIRE

demands were granted and a commission was issued to him as
governor on March 1, 1692.^^ By this, John Usher, a merchant
of Boston, and a son-in-law of Allen, was named as lieutenant
governor. Usher was in London at the time. His com-
mission provided for an assembly which the governor could
call with the advice and consent of the council. Members of
the assembly were to be elected by freeholders after each one
had taken

. "the oaths appointed by Acts of Parliament to be
taken instead of the oaths of Allegiance and Supremacy and
subscribed the Test." ^^

In Allen's instructions he was again cautioned to make sure
that members of the assembly were elected only by freeholders

"as being most agreeable to the custom of England. . . ." ^*

Nine men, besides Usher, were named in the instructions, as
constituting the council. Three were to be a quorum but no
important act was to passed with less than five present
except in an emergency.

Government under the new regime began with the arrival
of Usher on August 13, 1692. The first session of the general
assembly was held on October fourth. ^^ This assembly
numbered twelve and all the men were residents of the
towns they represented. An act passed on the last day of the
session was one regulating the pay of the representatives.^^
They were to receive three shillings per day

. . . "to commence from their coming out until their return
home allowing one day for coming out and one day for re-
turning."

This was to be paid by their respective towns.^^

Lieutenant-governor Usher was not popular in New
Hampshire and he was opposed at every turn by the anti-
Allen party. To them he was the embodiment of the old
Mason claim to territorial rights. In addition he never lived

»« N. H. Laws, I, 499. " Jbid., I, 510.

"Ibid.. I, 503. » Ibid.. I, 517.

'* From this time on in the records this word is used instead of deputies.
" N. H. Laws. I. 533.

NEW HAMPSHIRE 51

in the province but continued to reside in Boston. Finally
this opposition succeeded in having William Partridge, a
citizen of the province, appointed lieutenant governor. He
was appointed June 26, 1696, and took office December 14,
1697.2'* Partridge acted as lieutenant governor until Sep-
tember 15, 1698, when Governor Allen appeared in the
province-^ for the first time. His commission was still opera-
tive although Lord Bellomont's had already been issued as
governor of New York, Massachusetts, and New Hampshire.
New Hampshire's seventeenth general assembly ad-
journed shortly after Governor Allen's arrival, that is, on
October fourth.^" On December 18, 1698, he issued a summons
for the next assembly. In this summons appears for the first
time any specific reference to a residential qualification for
representatives. Because of the extra-royal tone of the
summons quite a long quotation is given:

"William the Third, by the Grace of God King, etc..
To our Sheriff or Marshall of our Province of New Hamp-
shire, Greeting:

We command, that upon receipt hereof, you forthwith
make out your precept directed unto the Selectmen of each
respective Towne within our Province of New Hampshire
requiring them to cause the Freeholders and other Inhabitants
of their several Townes, duly qualified, to assemble at such
time and place as they shall appoint, to elect and depute, one
or more persons, (being freeholders and residents in the same
towne) according to the number set and limited by the Act
of the General Assembly ... to serve for and represent
them respectively in a great and General Court or Assembly
by us appointed to be convened ... In New Castle upon
Thursday, the fifth day of January next ensuing
Hereof you may not fail at your peril. Witness, Samuel
Allen, Esq., Governor and Commander in Chief in and over
our province of New Hampshire aforesaid. Given at New
Castle under the Public Seal of our said Province, the 18th
day of December, in the tenth year of our reign, A. D. 1698.

By Command,

Sampson Sheafe, Secy." "

•• N. H. Laws, 1,515. »• N. H. Laws. I. 506.

'•N. H. Prov. Papers. U. 277. »■ N. H. Prov. Papers, U, 283-284.

52 NEW HAMPSHIRE

If we seek a reason for this new qualification for representatives
it is not easy to find. That it was meant to be emphatic is
shown by the parenthesis which appears in the summons.

Non-residence representation had not bfeen the practice
in New Hampshire since it had been given a separate form of
government. From the appointment of Governor Allen to the
time this summons was issued ten general assemblies had met;
most of them of two sessions. A careful checking of the lists
of representatives shows but one case of non-resident repre-
sentation. In the assembly of May 15, 1695, Newcastle was
represented by Elias Stileman of Portsmouth. He had
represented Portsmouth in October, 1692, and March, 1693.^^
Neither had the governor met with sharp opposition center-
ing in one town as was the case between Governor Phipps and
Boston. It may be possible that the same requirement forced
upon Massachusetts by a royal governor furnished the in-
centive for this.

Since this rule was not by order of the council or by en-
actment of the assembly but by proclamation the question of
its legality might be raised. Turning to the governor's com-
mission we find the following :^^

"And we do hereby give and grant unto your full power
and authority with the advise and consent of our said Council
from time to time as need shall require to summon and call
assemblies of the freeholders within your government in such
manner and form as by the advice of our Council you shall
find most convenient for our service and the good of our said
province."

The clause in the above

. . . "in such manner and form — you shall find most con-
venient"

. . . probably gave the governor ample authority for his
proclamation. And it was obeyed. When the assembly met
on January 5, 1699, there was no violation of this order such
as we saw in Massachusetts immediately following the en-
actment of a residence qualification for deputies.

"N. H. Lawa. I. 13. 517, 545. 575. "Ibid., I. 503.

NEW HAMPSHIRE 53

Lord Bellomont now arrived in New Hampshire and was
recognized as governor on July 31, 1699. An assembly which
met at his call and the first one elected since the one chosen
under Allen's new rule enacted a law regarding qualifications
of representatives in which residence was not mentioned.
But before we examine this it will be well to take up Lord
Bellomont's Commission and Instructions.

The portion of his commission referring to an assembly
reads exactly as the quotation given above from Governor
Allen's Commission.'^ In his instructions two clauses only
refer to the assembly. By one he is admonished to see that
members of the assembly are elected only by freeholders and
by the other he was ordered to reduce the salary of the
members to a point where it would not be too heavy on the
towns. He was, however, to use his discretion about the
latter.^* The first assembly under Governor Bellomont met
on August 7, 1699.'^ On the seventeenth a law was passed
entitled

"An Act to Return Able and Sufficient Jurors to Serve in the
Several Courts of Justice and to Regulate the Election of
Representatives to serve in the General Assembly within
this Province." '^

This law was approved by Bellomont shortly before leaving
the province.^''

The clause of this act referring to representatives is entitled

"Qualification of Representatives and Electors"
. . . and reads in part:

"And be it further enacted by the authority aforesaid,
that no person inhabiting within this province other than
freeholders of the value or income of forty shilling per annum,
upwards, in land, or worth fifty pounds sterling at the least in
personal estate, shall have any vote in the election of Repre-
sentatives; or be capable of being elected to serve in the
General Assembly. . . ." ^^

"N. H. Laws, I. 612-620. "Ibid., I, 657.

"Ibid.. 1, 623. *»Ibid.. I, 640.

"Ibid.. I. 635. "Ibid., I, 659.

54 NEW HAMPSHIRE

Whether no mention of a residential requirement was
approved by Governor Bellomont, as he had a perfect right
to do under his instructions, or whether this omission of any
reference to residence was a studied one on the part of the
assembly and it chose this way of putting itself on record as
opposing the requirement laid down by the former governor,
are questions which the available data do not answer. But
there is not doubt that the people of New Hampshire re-
garded the coming of Bellomont as a return to their ac-
customed governmental forms and regulations. Belknap,
after speaking of the return of Partridge to the office of lieu-
tenant governor and the reinstatement of some of the council
whom Allen had removed, says,

"The government was now modelled in favour of the
people, and they rejoiced in the change, as they apprehended
the way was opened for an effectual settlement of their long
continued difficulties and disputes." ^"

Under succeeding governors we find no attempt to impose
a residential requirement upon the province in the choice of
its representatives, although they had, or at least some of them
had, as much authority to do so as did Allen. For example,
Joseph Dudley's commission which was issued July 13, 1702.
The clause in this which gave him power to call an assembly
reads exactly as did the corresponding clause in Allen's and
Bellomont's commissions.'"

The commissions of later governors were worded slightly
differently and were perhaps meant to leave the rules and
regulations governing the assembly in its own hands. Jona-
than Belcher became governor of New Hampshire in 1730.
His commission reads in part:

"And we do hereby give and grant unto you full power
and authority with the advice and consent of your said
Council from time to time as need require to summon and call
General Assemblys of the Freeholders and Planters within
your Government in manner and form according to the usage
of our Providence of New Hampshire. . . ." *^

•• Belknap, History of New Hampshire, I, 305.

" N. H. Prov. Papers, II, 368. " Ibid.. IV. 638.

NEW HAMPSHIRE 55

The commission of Bening Wentworth, the last royal governor
of New Hampshire, reads exactly as does that of Belcher.'"
The point wherein these two differ from the earlier com-
missions is in the words :

". . . in manner and form according to the usage of our
Province of New Hampshire. . . ."

The only demand made in these commissions on those elected
as representatives was that they should take certain oaths
showing their loyalty to the crown.

Between the time of the act of 1699 and the end of the
provincial period of New Hampshire history only one act was
passed which laid down qualifications for representatives.
This was in 1728 and was an act providing for triennial
assemblies. It referred to one formerly passed and submitted
to the Lord Commissioners of Trade and Plantations. Nothing
having been heard —

. . . "it is presumed that if it had been disagreeable
to his Majesty, his disallowance thereof had long since been
made known." ^*

The portion of the act in which we are especially interested
reads :

"And that no person shall be allowed to serve in the house
of representatives as member thereof, unless he hath a real
estate within this province of the value of three hundred
pounds; and the qualifications of the person so elected shall
be determined by the house of representatives for the time
being."

The only qualification demanded of a representative by
this act was a property one and it is interesting to note that
the same is true of electors.

"And no person shall have the liberty of voting in the
choice of representatives, other than such who has a real
estate of the value of fifty pounds within the town, parish
or precinct where such election shall be; . . . And be it
further Enacted by the Authority aforesaid, That any person,
having real estate of fifty pounds as abovesaid, shall have

- Acts and Laws of New Hampshire (1771), 3. " Ibid.. (1771). 166.

56 NEW HAMPSHIRE

the liberty of voting in the town, parish or precinct, where
such his estate shall be, although he be not an inhabitant in
said town, parish or precinct at the time of such election." "

Belknap says of this that it

". . . was the only act which could be called a con-
stitution or form of government, established by the people of
New Hampshire; all other parts of their government being
founded on royal commissions and instructions. But this act
was defective, in not determining by whom the writs should
be issued, and in not describing the places from which Repre-
sentatives should be called, either by name, extent or popula-
tion." ^^

This effect which Belknap points out is apparent as one reads
the records. There was contest after contest between the
governor and assembly over the right to grant new towns the
right to representation.

It seems clear from the governor's commission and from
the practice that had been followed in New Hampshire from
the first that it was the governor's privilege to name a new
town in the election writs whenever he thought the conditions
there justified it. The most bitterly contested case of this
sort occurred in 1749 when the House and Governor Went-
worth came into conflict over this very question. On January
10, 1749, the governor vetoed the House's choice of speaker
because they refused to seat two members chosen from
Chester and South Hampton. The House stood firm that the
granting of the right of representation to a town was by its
own action and not by the king's writ. Nothing was ac-
complished the whole life of the assembly as it was kept under
short adjournments and prorogations until the triennial act
dissolved it.''^

The first and only case of non-residence representation in
New Hampshire which I have been able to find was in 1749

" The above act provided that the session of the assembly passing the act should end
on April 13. 1731, and that the provisions of the act should apply to the choice of succeed-
ing assemblies.

" Belknap, II, 90.

«' N. H. Prov. Papers. VI, 74-77. For another interesting phase of this contest we
Fry, New Hampshire as a Royal Province, 139-141.

NEW HAMPSHIRE 57

when Richard Waldron (the third of the same name) appeared
as a representative for Hampton.^** He served in this capacity
until 1752. Waldron was a resident of Portsmouth and the
leader of the opposition to Governor Wentworth. Adams
in his Annals of Portsmouth says:

". . . but soon after Governor Wentworth commenced his
administration, he suspended Mr. Waldron as Counsellor,
removed him from office, and appointed Colonel Atkinson
Secretary and Andrew Wiggin, Judge of Probate. He re-
mained a private citizen, until the beginning of the year 1749,
when he was solicited by his friends in town to be a candidate
to the General Court which was to meet in January; but he
absolutely refused. In the meantime, the town of Hampton
elected him their representative, without giving him any
previous intimation of their design; they notified him of their
choice by a Constable, and after some consultation he ac-
cepted the appointment." *^

When the assembly met Waldron was elected speaker but the
Governor negatived the choice. This was the beginning of
the contest already noted above.

The provincial period of New Hampshire closes with no
residential qualification for representatives in force, and,
though not forbidden, we have seen that non-residence
representation was not practiced. One reason for this was
the fact set forth in the following statement of Governor
Belcher. In 1733 the Assembly*" complained to Belcher of
his frequent dissolutions. He replied:

". . . Nor do I see any great Inconvenieny in the dis-
solution of an Assembly since there are but twelve Towns in
the Province that send Representatives and of which the most
remote is not a day's journey from the place where you
commonly sit. . . ." "

New Hampshire did grow slowly as it suffered severely from
Indian raids in all the intercolonial wars. Not until the
period between the last intercolonial war and the Revolution

«' Dow, History of Hampton, I, 567; N. H. Prov. Papers, VI, 70.
"Adams, 191-192.

" General Assembly is the correct term for the lower house of New Hampshire's
law-making body from 1679 to 1775. After 1775 General Court is the correct term.
" N. H. Prov. Papers, IV, 698.

58 NEW HAMPSHIRE

did outlying settlements spring up in any number. During
those years the assembly increased constantly in numbers
and at the end of the provincial period had thirty-four mem-
bers.

New Hampshire claims the distinction of being the first
state to adopt a constitution in response to the suggestion of
the Continental Congress. A convention of representatives
from the towns met in Exeter on January 5, 1776, and re-
solved themselves into a house of representatives as they had
been authorized to do. The rules under which they had been
elected were similar to those in force when the state was a
royal province. The towns were not required to choose
residents.^2 Immediately after assuming the authority of a
house of representatives the body drew up a form of govern-
ment for New Hampshire.*^ This is called the state's first
constitution. As it was hoped the war would be of brief
duration the instrument was neither complete nor precise.
No qualifications for either representatives or councilors were
included in it.

In 1778 a constitutional convention met at Concord** to
frame a new instrument of government, but what the result of
their labor was we do not know, for the journal of the con-
vention has not been found. But the following year, 1779,
a constitution was framed, submitted to the people and re-
jected.^* The clause of this respecting representatives reads
as follows:

"All male inhabitants of the State of lawful age, paying
taxes, and professing the protestant religion, shall be deemed
legal voters in choosing counsellors and representatives, and
having an estate of three hundred pounds, equal to silver at
six shillings and eight pence per ounce, one-half at least
whereof to be real estate, and lying within this State, with the
qualifications aforesaid, shall be capable of being elected." "

The next attempt to frame a constitution was in 1781.
The convention met at Concord in June and finished its work

•« N. H. Prov. Papers, VII, 606. »• Ibid., IX. 837-842.

•• Ibid., VIII, 2-5. " Ibid.. IX. 839.

»« Ibid., IX, 834-837.

NEW HAMPSHIRE 59

in September, and it too was rejected at the polls.^^ This
convention made a decided change from the customary prac-
tice of representation. In the plan submitted to the people
there were to be fifty members of the House of Representatives
apportioned among the counties as follows:

Rockingham, twenty,
Strafford, eight,
Hillsborough, ten,
Cheshire, eight,
Grafton, four.

These were to be chosen by county conventions, out of their
own number, instead of by the people directly. Each town
having rateable polls could select one delegate to said conven-
tion and larger towns in proportion. The qualifications for a
delegate to these conventions were that he should be a
Protestant —

"and for two years next preceding his election an inhabitant
of the town, parish or association, for which he may be
chosen; . . ." ^^

When the convention assembled it was to divide each county
on the following basis:

"Each county shall contain as many districts as the same
shall have representatives, and the districts in each county
chall be so divided by the respective annual conventions, as
each shall contain equal number of reteable polls, or as near
as may be" ^®

When this had been done:

". . . each convention shall elect by a majority of written
votes out of the members who are chosen to compose such
convention a representative for each district; and living
within the district for which he may be chosen." ^^

The convention probably felt this matter of electing
representatives would meet with objections for in its address
to the people it said:

" For this constitution in full see N. H. Prov. Papers, IX, 852-877.

•• An Address of the Convention for Framing a New Constitution, etc., 39.

••76»d., 40. "Ibid., 41.

60 NEW HAMPSHIRE

"This mode will be found, perhaps, as free, equal, and
perfect, as any that can be devised. The objection, that in
this way each town will not know, nor have the power of
designating its own representative, will, perhaps, on ex-
amination, be found one of the strongest arguments in its
favor." 61

Their idea was that representatives would be chosen without
the bitter partisan rivalry which sometimes accompanied the
town elections. That the plan was rejected can be seen from
the new constitution which was submitted to the people in
1782 and from the address accompanying it. In this, as had
been the custom, the towns were the unit of representation.
The qualifications of representatives were as follows r^^

"Every member of the house of representatives shall be
chosen by ballot and for two years at least next preceding his
election shall have been an inhabitant of this State, shall have
an estate within the Town, Parish or place which he may be
chosen to represent of the value of one hundred pounds; . . .
shall be at the time of his election an inhabitant of the Town,
Parish or place he may be chosen to represent; shall be of the
Protestant Religion, and shall cease to represent such Town,
Parish or place immediately on his ceasing to be qualified
aforesaid. . . ." ^■■'

Here we have for the first time a definite law requiring
a representative to be a resident of his district. But this con-
stitution shared the fate of its predecessors and was rejected.
Another convention met in Concord in June, 1783. The
constitution framed^'' was adopted October 31, 1783, and went
into effect on June 1, 1784. Its provisions regarding qualifica-
tions for representatives^'' are exactly the same as those of the
proposed constitution of 1782 and so do not need to be re-
peated.

We have now reached a point where we have a residential
qualification for representatives written into the fundamental
law of New Hampshire and this fact automatically closes our
study of this state.

•' An Address of the Convention for Framing a New Constitution, etc.. 11.
" For complete constitution see N. H. Prov. Papers, IX, 877. 896.
"Ibid.. IX, 887.
" Ibid.. IX, 896, 919. "Ibid.. IX. 907-908.

RHODE ISLAND

The independent settlements around Narragansett Bay were
given the opportunity of becoming a colony by the charter of
March, 1644.' This was peculiar in that while relieving them
somewhat from the encroachments of their neighbors on three
sides, it yet left to them the organization of a government.

The first assembly under this charter did not meet until
May, 1647, at Portsmouth.^ The principal reason for this
delay was the independence of each local town. Natural con-
ditions probably had something to do with it. It is altogether
probable that but for the constant pressure from their terri-
tory-hungry neighbors union would not have come even at
this date. This assembly was both a primary and a repre-
sentative assembly. A majority of the freemen were present
while Providence sent representatives.^ Three towns, Provi-
dence, Newport, and Portsmouth were named in the charter,
but Warwick was now admitted to equal share in the govern-
ment.^ The official name of the colony according to this
charter was Providence Plantations.

The assembly of May, 1647, declared the government to be

". . . Democratical, that is to say, a government held by
ye free and voluntary consent of all, or the greater parte of
the free inhabitants." ^

It also provided for the use of the ballot in all elections.®
This assembly did not pass a specific act creating a general
court as they assumed the form and functions of such a body.
But in an obscurely worded paragraph they did provide for
representation of the towns by "committees of six".'' A
specific provision was made for a court of election to meet
annually on the first Tuesday after May 15,
". . . If the weather hinder not. "^
John Coggeshall was elected president, along with four assist-

• R. I. Col. Recs.. I, 143-146. • Ibid.. I, 156.

'Ibid., I.. 147. 'Ibid.. I., 148.

•Staples. Annals of Providence. 61. 'Ibid., I. 149. Arnold. I. 202.

•R. I. Recs.. I. 148. 'Ibid.. I, 149.

62 RHODE ISLAND

ants, one from each town. Later in the session under the
heading General Officers, provision was made for all of these
to be chosen at the annual court of elections.^ In referring to
the legislative body of the colony we will use the word assembly
although that was not its correct name until after the charter
of 1663. Before that date it was called the "Representative
Committee" or the "General Court of Commissioners",
usually the latter.

When the second asembly met at Providence on May 16,
1648, we find six representatives present from each town.
Also at this time the representative system was definitely
established by the following:

"It is ordered that six men of each Towne shall be chosen,
in whom ye General Courte shall continue: and each Towne
here shall have the choice of their men if they please; or if
any town refuse, the Courte shall chose them for them. . . ."*°

In 1650 the assembly ordered that

. . . "a committee of six men of each Towne shall be chosen
out of each Towne to meet four dayes before the next General
Courte, and to have the full power of the General Assemblie,
and each committee man to be allowed two shillings and six
pence per man a day by the Towne that chose them. . . ." "

Again, in October, 1650:

"Ordered, that the representative committee for the
Colonic shall always consist of six discreet, able men, and
chosen out of each towne for the transacting of the affairs of
the Commonwealth. . . ." ^^

Both of these acts of 1650 would seem to be open to the
interpretation that the towns were limited to a choice of
citizens as "committee men". Whether this was the case
cannot be definitely stated. There were cases of non-residence
representation, as we shall see later, but these all may have
been the result of the assembly exercising its right of filling a
town's quota of committee men in case the town failed to
elect its full number.

• R. I. Recs., I, 191. " Ibid.. I, 228.

"Ibid., I, 209. " Ibid.. I. 229.

RHODE ISLAND 63

The next act on the subject of representation was passed
in 1651. By this time Coddington had arrived with his com-
mission as governor of Rhode Island. So the colony was
separated into two parts. The mainland towns, Providence
and Warwick, continued the government under exactly the
same form as when the colony was united. The assembly met
alternately in Warwick and Providence, just as before it had
met at each of the four towns in turn.

Feeling perhaps that the changed conditions demanded
new provisions regarding the assembly an act was passed in
1651 which ordered

". . . that the lawe makinge Assemblie of this CoUonie
shall consiste of six men of every Towne of this Collonie; and
that these six men of every Towne, shall be chosen by the
free inhabitants of every severall Towne, . . . and in case
there be not a full appearance, the townsmen or men of the
defective Towne or Townes that appeare, shall make up their
number by choosing in the Towne where the Courte is kept,
provided, they are freemen of the colony." ^^

This clearly provides for the choice of non-resident com-
missioners, but that is not the most surprising thing about
the act. The possibility of a town having commissioners or
representatives not chosen by the freemen of the town is one
that we cannot imagine being tolerated by a Massachusetts
or a Connecticut community.

The first assembly after the colony was reunited met in
August, 1654.^^ It passed the following act on the constitution
of its successors:

"We agree, that ye Generall Court of this Collonie or
Generall Assemblie, to transact all affairs except election, as
making of laws, tryall, of generall officers, etc., be held by
six commissioners, chosen by each Towne of ye Collonie." '■''

Clearly there is here no restriction on the choice of non-
residents as commissioners.

Prior to this date the records do not show a single in-
stance of non-residence representation. For several of the

» R. I. Recs., I, 236. " Ibid.. I, 276. " Ibid., I, 277.

64 RHODE ISLAND

years from 1647 to 1655 the names of the commissioners are
grouped together without any reference to the towns from
which they came. But the names of the towns appear often
enough to enable us to find some instance of such representa-
tion if it had been practiced at all. On the other hand in the
very first assembly which met after the passage of the above
act, an assembly which met at Portsmouth in June, 1655,
we find our first instance of non-residence representation.
Half of Providence's committee were residents of Newport.
From this time until the new charter of 1663, there are many
cases of this, all of which will be given later. Reference has
already been made to the power of the assembly to fill out a
town's quota of commissioners. Two other phases of this
appear in Rhode Island which differ from the practice in any
other New England colony.

The assembly of August, 1659, met in Portsmouth. Its
first item of business was to suspend Robert Westcott, a com-
missioner from Warwick, because of aid he had given New
Plymouth in territorial claims against Rhode Island. Im-
mediately after his removal we find this:

"It is ordered that one of the four (here follow the named
of four Warwick citizens) shall be chosen by this Assembly,
by votes, to serve as a commissioner in the roome of Robert
Westcott. . . ."1^

John Weekes was chosen.^^ This is in decided contrast to
Massachusetts where in case a man was suspended from the
general court his town was at once notified to choose a suc-
cessor.

The first assembly under the charter of 1663 passed a law
for filling vacancies among the deputies, as they had then
come to be called. It was,

"That at the Court of Election, in case any one of the
Deputyes should be chosen into the office of Governor,
Deputy Governor or Assistants, that it should be lawfull for
such officer, so left out, to serve in the roome of the deputy
chosen for that present court." ^*

'• R. I. Reca.. I, 420. ■' Ibid.. I.. 420. " Ibid.. II. 33-34.

RHODE ISLAND 65

How this worked out in practice is shown by an incident in
1666. At the court of election of that year there was a
change of governors and also in several assistants. The
assembly which convened immediately after the court of
election ordered:

". . . that the Generall Sergant be sent unto Mr.
Benedict Arnold, Mr. John Card, Mr. Edward Smythe and
Mr. John Greene, that it being by law their liberty to sitt and
act in this present a.ssembly as Deputies, the Courte doe de-
sire their assistance." ^^

Arnold had been governor and the others assistants, but all
had lost their places at the election to men who had been
returned as deputies. It was just such an occurrence as the
law of 1663 was framed to meet.

In the records of the Rhode Island assembly in its early
years we find reference to the strange fact that quite often the
president of the colony was chosen moderator of the assembly
while assistants were not infrequently chosen as deputies.
This would be inexplicable if we did not keep in mind that in
Rhode Island the legislative and executive functions were
separate. The president and assistants by virtue of their
ofihce were not members of the court of commissioners.^"

Treating the towns in alphabetical order we will now take
up the cases of non-residence representation appearing before
1663.

Newport

In assembly of June, 1655, we find this item of business:
"Captain Morris in y^ Roome of John Gould and William
Lytherland in y^ roome of John Greene, both for Newport. "^^
The names of Greene and Gould both appear as the duly
elected commissioners for Newport but they evidently did
not appear. Whether the vacancies were filled by the four
commissioners of Newport who were present, as provided for
by the law of 1651,^^ or whether the whole assembly supplied
the vacancy as in the case of Robert Westcott, the record does

■• R. I. Recs., II, 147-148. " R. I. Records. I, 317.

=« Osgood, 1, 358. Note. '■' Ibid., I, 236.

66 RHODE ISLAND

not show. One provision, at least of the law of 1651, was not
carried out. It provided that such vacancies should be filled
from among the citizens of the town where the assembly was
in session. This would mean that two citizens of Portsmouth,
where the session was being held, would be chosen to fill the
vacancies. Morris was a resident of Portsmouth-^ but Lyther-
land lived in Newport.^^

The assembly of 1659 met at Portsmouth. One of New-
port's commissioners to this was Captain Randall Houlden.
He was a resident of Warwick^^ and a commissioner for War-
wick for years. ^^

In the assembly of May, 1660, which also met at Ports-
mouth, William Harris of Providence, was one of Newport's
commissioners. In the October session he appear for his own
town.^^ It seems queer that Harris could have been elected
to any office especially outside of his own town. He was the
head of the Massachusetts faction in Rhode Island, and a few
years before this Roger Williams had had him tried on the
charge of high treason for the promulgation of the doctrine

. . . "that he that can say it is his conscience ought not
to yield subjection to any human order among men." -^

In October, 1660, John Sweet of Warwick, where the
assembly met, served as commissioner for Newport. He had
had previous experience as commissioner for Warwick.-^

Providence

Providence has the distinction of being the first Rhode
Island town to use non-resident commissioners. She also
employed them to a greater extent than her sister towns.

In assembly of June, 1655, which met at Portsmouth,
half of Providence's commissioners were Newport men.
They were William Dyre, James Barker, and Mathew West.^"
Barker again represented Providence in assembly of May,
1661, which met at Newport.^^

»» R. I. Recs., I. 300. '» Ibid., I, 364.

"Ibid., I. 301. ^> Ibid., I, 272, 302, 432.

» Ibid., I. 302, 419. " Ibid., I, 300, 301, 316.

" Ibid., I. 241-508. >' Ibid., I, 437.
"Ibid., I, 24, 299, 428, 431.

RHODE ISLAND 67

The assembly of March, 1656, met at Warwick. One of
Providence's commissioners was Benedict Arnold. Arnold
was one of the prominent men of the colony and had formerly
been a resident of Providence,^- but now lived in Newport."
He later represented Providence again in an assembly which
met in Portsmouth in May, 1660.^^

John Tripp of Portsmouth, and a commissioner for that
town in several assemblies, represented Providence in an
assembly which met in Portsmouth in October, 1656.^^

In May, 1657, the assembly met in Newport. Providence
chose a resident of that town, Henry Bull, as one of her com-
missioners. Bull had formerly been a commissioner for
Newport.^^

Providence did not have another non-resident com-
missioner until the assembly of May, 1660, which met at
Portsmouth. In this it was represented by William Brenton,^^
president of the colony, and a resident of Portsmouth.^^
About this date he moved to Newport and later served several
times as a commissioner for that town.

The assembly of August, 1661, met in Portsmouth. Again
we find half of the commissioners for Providence were non-
residents. They were : Joseph Toney of Newport, PhilipTabor
of Portsmouth, and John Anthony, also of Portsmouth,''^

Torrey had a long record as a commissioner for Providence.
He represented that town in the following assemblies:

At Warwick in October, 1660.
At Portsmouth in August, 1661.
At Portsmouth in October, 1663.
At Newport in November, 1663.^°

During the time covered by the above session he had also
served his own town twice, in October, 1662, and in May,
1663.^^ With Torrey in October, 1663, Edward Thurston,
also of Newport, served as a commissioner for Providence.*^

" R. I. Recs., I, 14, 31, 327; Staples, 48. '^ Ibid., I, 82, 109, 299.

"Ibid., I, 300; Staples, 48. '> Ibid., I, 300, 301, 447.

"Ibid., 1, 428. '"Ibid., I, 431, 447, 504. 508.

"Ibid., I, 300, 304-501, 345. "Ibid., I, 492, 501.

» Ibid., I, 87, 300, 304, 354. « Ibid., I, 301, 504, 507.

"Ibid., I, 427.

68 RHODE ISLAND

The assembly of November, 1663, met at Newport to hear
the new charter read which had just been brought by Captain
George Baxter.'*^ At such an important time as this Providence
had two non-residents among her commissioners, Joseph
Torrey, mentioned above, and Richard Tew, also of Newport.^"*
Staples says these two men were elected by the other com-
missioners to replace Roger Williams and Stephen Arnold
who had been elected by their townsmen but failed to attend .^^

Portsmouth

In assembly of May, 1657, which met at Newport, Ports-
mouth was represented by two Newport citizens, John
Greene and Edward Greemann.^^ This Greene should not
be confused with the Greenes of Warwick. These were father
and son and the names always appear as John, Jr., or John, Sr.,
in their frequent appearances as Warwick commissioners.

In an assembly of November, 1658, which met at Warwick,
one of Portsmouth's commissioners was Benedict Arnold of
Newport. After this Arnold served twice more in this ca-
pacity for Portsmouth; in assembly of May, 1659, at Provi-
dence; and one of October, 1660, at Warwick. ^^

The May assembly of 1659 met at Providence. In this
Portsmouth had three non-resident commissioners: Benedict
Arnold mentioned above, Roger Williams of Providence, and
Joseph Clarke of Newport. Arnold and Clarke were both
colony officials at this time, Arnold being president. ^^

Thomas Greene of Warwick, twice served as a commis-
sioner for Portsmouth. First in assembly of May, 1662,
which met at Warwick, and then in one of June, 1662, at the
same town.'**

Warwick

Warwick's first non-resident commissioner was Benedict
Arnold of Newport,'^" a man who has the unique distinction
of having represented every town in the colony. He was a

" R. I. Recs.. I, 508. "Ibid., I, 300, 394. 408, 431.

"Ibid.. I, 301. "Ibid., I, 299. 301, 407, 408.

•'Staples, 135. "Ibid., I, 302, 468. 480.

«• R. I. Recs., I. 301, 354. »o ibid., I, 300.

RHODE ISLAND 69

commissioner for Warwick in an assembly which met at Ports-
mouth in May, 1656.^'

In the fall session of 1656, which met at Portsmouth,
John Sanford of Portsmouth, was one of Warwick's com-
missioners. Sanford was one of the most prominent men in
the colony and served his home town in many asemblies as
commissioner. At this time he was general recorder, treasurer,
and clerk of the court of commissioners.^- He is a good
illustration of two practices common to all the colonies.

(a) Multiplication of offices in the hands of one man.

(b) Tendency on part of towns when choosing a non-
resident representative to pick some prominent man, pre-
ferably a colony official.

Two of Warwick's commissioners in assembly of May,
1661, which met in Newport, were William Dyre and Peter
Wallman. Both were residents of Newport and the latter was
at this time solicitor general of the colony. He later appears
as a commissioner for Portsmouth^"^ but had evidently moved
there.^^

In assembly of August, 1661, half of Warwick's com-
missioners were non-residents. This assembly met at Ports-
mouth. The non-resident commissioners were John Porter
of Portsmouth, Thomas Brownell of Portsmouth, and William
Dyre of Newport .^^

This brings us down to the time of the new charter. But
before taking it up let us examine briefly a very curious
custom regarding representatives in Rhode Island which is in
marked distinction from the practice in other colonies. In
this state a man could be a commissioner in the assembly and
yet not be a freeman of the colony. That he be a freeman of
a town was the only requirement.

"The path to the provincial suffrage lay through freeman-
ship of the towns; he who had been accepted as an inhabitant
of one of the towns and admitted as one of its freemen could
hope, as a matter of course, to be granted the colonial free-
manship. The charter of 1644, unlike that of 1663, did not

" R. I. Recs., I, 337. " Portsmouth Town Records, 97, 100.

" Ibid., I, 52, 300, 336, 345, 326, 501. " R. I. Recs., I, 300, 301. 447.
"Ibid.. I, 301, 302, 437, 447, 468.

70 RHODE ISLAND

use the word freemen, but simply incorporated the "in-
habitants" of the three towns. Yet the practice was to require
a formal vote and admission to the town and then a similar
entrance into the colonial freemanship." ^^

An example of the practice mentioned is Obadiah Holmes,
who was a commissioner for Newport in March, 1656, but was
not made a freeman of the colony until the Court of Election
in May, 1656.^^ Edward Erman served as a commissioner for
Providence in March, 1658, but was not admitted as a free-
man of the colony until May, 1658.^^ That the same practice
was followed after the new charter was obtained is shown by
the following case : Nathaniel Waterman served as a deputy^'
for Providence in 1668. He was admitted as a freeman of the
colony in 1670.*"'

The new charter which reached the colony in November,
1663, made several changes in the names of governmental
agencies, which changes we shall follow hereafter. First, the
name of the colony was changed to Rhode Island and Provi-
dence Plantations.^^ The name of the law-making body was
changed to Gneneral Assembly; commissioner to deputy;
and president to governor. These changes brought Rhode
Island into similarity to the other New England states. The
charter provided for a governor, deputy governor, and ten
assistants, all of whom were named in it, and who were to
continue in office until May, 1664, when the colony would
have the privilege of electing whom it would to these offices. ^-

Provision was made for two annual sessions of the assembly,
one on the first Wednesday in May, the other on the last
Wednesday in October.^^ Instead of meeting in different
towns of the colony all sessions were to he held at Newport.
A change was made in the apportionment of deputies. New-
port was still to have six. Providence, Portsmouth, and
Warwick four each, while any other towns which might be

•• McKinley, 440-441; R. I. Recs., I, 263. 280, 340. 387, 426.

" R. I. Recs., I, 326-327, 336.

" Ibid.. I, 336, 387.

•• This term was used after charter of 1663 went into effect.

•• R. I. Recs., I, 222, 364.

"Ibid.. II. 6. "Ibid.. II. 7, 8. "Ibid.. II, 8.

RHODE ISLAND 71

organized later were to have two each.*^ The deputies were
to be

. . . "elected or deputed by the majour part of the ffreemen
of the respective towns or places fTor which they shall bee so
elected or deputed. . . ."

This contains no restriction limiting the choice to residents.
The assembly had almost unlimited freedom in making laws,
being restricted only that they

. . . "bee not contrary and repugnant unto, butt, as neare
as may bee, agreeable to the lawes of this realme of England,
considering the nature and constitutione of the place and
people there. . . ." ''^

Rhode Island historians point out that that last qualifying
phrase, which was also in the former charter, removed all
limitations and restrictions on the assembly's legislative
power.^^

The first town to join the original four was Block Island
in 1664.^^ Two deputies from it were in the Assembly of May,
1665. They must have been irregularly chosen, as a long act
was passed "Concerning Block Island Deputies".^^ The
gist of this was that since most of the inhabitants of Block
Island had lived in other colonies and so were not familiar
with Rhode Island rules; and since by admitting the two
deputies they would learn the laws of the colony and thus be
able to instruct those at home, they should be admitted to the
assembly. Other towns followed from time to time, as
Westerly, East Greenwich, Jamestown, and Kings Town,
making a total of nine towns represented by the end of the
century.

In all the colonies we have studied hitherto this expansion
of settlements was always accompanied by an increase in the
use of non-resident representatives. But such was not the
case in Rhode Island. The records from 1663 to 1700 yield
very few examples of this practice. Right here it might be
noted that there was no assembly during the years 1687-89,

•< R. I. Recs.. II, 8. " R. I. Recs., II, 56-58.

"Ibid., II, 8. "Ibid., II, 121-122.

"Arnold. I. 293-294.

72 RHODE ISLAND

while the records for the assembUes of May, 1692, and for the
years 1693, 1694, and 1695 are missing. The records for the
other years are incomplete but show the following cases of
non-resident representation.

Jamestown
Jamestown was represented in the assemblies of 1679-80-81
by John Fones (or Foanes),^^ a resident of Kingston,^" and a
holder of many prominent offices in the colony.

Portsmouth

There is not a clear case of Portsmouth having employed
a non-resident as a deputy during this period.

In the assembly of May, 1683, one of her deputies was
Thomas Greene. '^^ Now Greene was a resident of Warwick
and a deputy for Warwick in several assemblies. It is very
probable that this is an error of the secretary, as five deputies
are listed for Portsmouth and only three for Warwick. As
four was the allotted number for each of these towns, and
no more, Greene's name probably should have been listed
under Warwick.

Providence

Providence furnishes the first example of non-residence
representation under the charter of 1663. In October, 1672,
Thomas Borden of Portsmouth, '^ was deputy for Providence,"

Providence was represented by Edward Smith of Newport,
in May, 1675.'''* Smith was a former resident of Providence.''^
Ten years later, in 1685, Major John Coggeshall of Ports-
mouth'^ served as a deputy for Providence.^'

Warwick
In assembly of May, 1680, Warwick was represented by
Robert Burdick, who was a resident of Westerly and later
represented Westerly.''^

«• R. I. Recs.. III. 29. 84, 89. " Ibid., I, 300.

'« Updike, I. 333. ^> Ibid.. II, 465.

" R. I. Recs.. Ill, 121. ^'Ibid., II, 396, 527.

" staples, 61. '• Records of the Town of Portsmouth, 163-174-177-212-228.

"R. I. Recs., Ill, 167. ■> Ibid., II, 388; III, 68, 84, 121, 167.

RHODE ISLAND 73

Westerly

In 1679 the deputy for Westerly was Joseph Jencks.^^
The records do not enable us absolutely to decide his place of
residence but they point to Providence.

In assembly of 1680 both of Westerly's deputies were non-
residents. They were Henry Tew and Edward Thurston,
both of Newport. Tew was a military officer of the island
while Thurston served as a deputy for his town in several
assemblies.^''

The difference in the number of instances of non-residence
representation between the period preceding the charter of
1663 and that following it is very striking. This later period
is also characterized by an indifference on the part of the
towns in sending deputies to the assembly. From 1647 until
1663 there was not a single assembly at which all the towns
were not represented. This may have been due to the as-
sembly's power of filling a town's quota of deputies in case
the full number did not appear.

To meet the conditions which arose after 1663 the colony
at first used less stringent measures than did her sister colonies.
The records of other colonies are full of cases where fines were
levied against this town or that for failing to send deputies.
Contrast with that method the following. In September,
1666, the deputies and assistants from Warwick did not
appear at Newport so the assembly voted that a boat be pro-
cured and sent to Warwick

. . . "to signify to the Magistrates and Deputyes of that
towne, the Courts desire of their advice and assistance."

One of Newport's deputies was delegated for this mission
and the whole expense was to be borne by the colony. ^^

Finally in 1672 a long act was passed levying a fine on
assistants and deputies for non-attendance. One of the
provisions of this was an oath^- to be taken by all deputies. ^^
This had never been required before and opposition developed
against it. Providence protested that

" R. I. Recs., Ill, 29. »» Ibid., III. 84, 97, 121, 150, 332, 368. " R. I. Recs., II, 151.
" "Engagement" was the word used in Rhode Island. «' R. I. Recs., II, 474.

74 RHODE ISLAND

. . . "it is contrary to the liberties granted to us in our
charter. . . ." ^^

at the very next assembly Warwick's deputies refused to take
the engagement. ^^ The requirement for deputies to take an
engagement was repealed in 1677.^^ It had led to much
trouble and Warwick had been deprived of representation
due to the refusal of its deputies to conform to the require-
ments.

We have seen that prior to 1663 the assembly or general
court of commissioners as it was then called, met alternately
in the four towns of the colony. The charter of 1663 desig-
nated Newport as the place of meeting. This continued to be
the seat of the assembly until 1683 when it was voted to hold
the fall session annually at one of the mainland towns, either
Providence or Warwick. The next year provision was made
that the fall session should alternate between Warwick and
Providence. ^^

Until near the close of the century Rhode Island's legisla-
ture met in a single body. Agitation for division into two
houses began as early as 1644. It was especially active in
1665; while in March, 1666, the division into two houses was
made. But the assembly of September, 1666, voted to

. . . "sit together"

and to defer final action on question of separation until the
October session. This session after

"long and serious"

debate decided to make no change. ^^ The division was
finally made by the act of May 6, 1696.^^

In discussing other colonies we have seen that the ex-
tension of settlements was accompanied by an increase in
non-residence representation. In Connecticut to account
for so little representation of this kind at a certain period we

"Staples, 155. » Ibid., U, 584.

"R. I. Recs., II, 482. »^ Ibid., Ill, 125, 161.

"Ibid., II, 63. 124, 130, 131, 144, 145, 150, 151. 180.
"Ibid., III. 313; Laws and Acts of R. I., 1636-1705, 39.

RHODE ISLAND 75

have offered as a reason the proximity of the towns to navi-
gable water. In Rhode Island both of these hypotheses seem
to fall down, for during the period of 1647-1663, when the
settlements were proximate, and all on navigable water,
there was by far a greater use of non-residence representatives
than at any later period of the colony's history. Two things
explain this very satisfactorily, however. First, the unusually
large number of deputies, six allotted to each town, which
naturally caused many vacancies, and secondly, the power of
the assembly to fill these vacancies with residents of the
town where the assembly was sitting.

As the century draws to a close the custom of employing
non-residents as deputies was evidently disappearing, but no
law appears on the statute books forbidding it.

In continuing this study into the eighteenth century
actual cases of non-resident representation have been given
only for the first ten years. This was a long enough period to
show the practice which without doubt existed until there was
a definite law on the subject. This practice was for the towns
to choose a non-resident only in extreme cases, generally
preferring one of their own citizens.

Kingston used two non-resident deputies during the first
ten years of the eighteenth century, and each time she called
on Westerly, queer as that seems, considering the geographical
position of the two towns. In October, 1705, she was repre-
sented by Edward Larkin, who represented his home town the
following year. In the May assembly of 1707, Kingston was
represented by Christopher Champlin of Westerly. Champ-
lin was a prominent man in the colony and had previously
represented his home town.^"

New Shoreham was the name under which the residents
of Block Island became an integral part of the colony. In
the assembly of October, 1705, they chose as their deputy
Captain Nathaniel Niles, a resident of Kingston. ^^ In this
connection it is interesting to note that in October, 1705,

•» Rhode Island Records, III. 68, 550, 564; IV, 3, 17, 224.
"Ibid., Ill, 550; Updike, I, 435.

76 RHODE ISLAND

while Kingston went outside her boundaries for a deputy one of
her own prominent citizens was chosen by a neighboring town.

Newport in 1701 chose as one of its deputies one of the
prominent men of the colony, Major John Coggeshall of
Portsmouth, whom we have already met as a deputy for
Providence and who quite often represented his home town.^^

Richard Green, of Warwick, a prominent man in Rhode
Island affairs, represented Portsmouth in the Assembly of
1702.9'

During this period of ten years Providence but once made
use of a non-resident as deputy and that one time they chose
an experienced legislator as was so often done by the towns
making use of non-resident deputies. The man chosen to
represent Providence in May, 1709, was James Brown, a
resident of Newport. He had represented his home town in
1706-07-08, and did so again in September, 1709.^4

The last instance of non-resident representation during
this period was in 1709, when William Wilkinson, of Provi-
dence, represented Westerly^^ in the October session of the
Assembly.

As has been said above, a checking of the lists of deputies
through the first seventy or eighty years of the eighteenth
century would, in all probability, show now and then a case
of non-resident representation until the practice was declared
unlawful. ^"^ Just when that was we cannot definitely state,
but it was between the years 1772 and 1783. A careful search

" R. I. Records, III, 185, 310, 428, 472. Recs. of Portsmouth, 163, 174, 212.

"Jbid.. Ill, 443, 473.

"Ibid., Ill, 564; IV. 17, 47, 67, 69, 77.

"Ibid., IV, 80, 128.

•' It is interesting to note that in Rhode Island we have not found a single instance
of a deputy representing two towns at the same time as sometimes happened in Con-
necticut and Massachusetts. In this connection the following may be of interest:

"Whereas this Assembly at the last session empowered such Inhabitants of the
Town of Newport, as were Freemen thereof at the time it was taken Possession of by the
Enemy, to meet at Providence, on the sixteenth instant, and choose Deputies to represent
the said Town; who accordingly met, and among others chose Paul Mumford, Esq.,
who having purchased an Estate in Harrington, and removed there with his family, is also
elected a Deputy for the said Town of Harrington; whereby a V^acancy is made in the
Deputies of Newport; It is therefore Voted and Resolved. That such Inhabitants of the said
Town of Newport as were Freemen thereof at the Time it was taken Possession of as
aforesaid, consisting of a number of not less than Seven, be empowered to meet together,
at the State-House in Providence, on Tuesday the Sixth Day of May next, at Five o'clock
in the afternoon to choose another Person in the Room of the said Paul Mumford."
Reprints of R. I. Acts and Resolves — April, 1777, 5.

RHODE ISLAND 77

through all the Colonial Records and Digests of Colonial
Law^^ fails to reveal the exact statute which established a
residential qualification for deputies in the General Assembly.
The dates given between which the requirement became
operative were arrived at in the following manner:

During the eighteenth century Rhode Island issued eight
volumes (digests) of colonial law. The dates of these were
1705, 1719, 1730, 1744, 1752, 1767, 1772, and 1798. In the
first six the law on the subject of representation is practically
the same. In the digest for 1767 we find

"An Act, regulating the Manner of admitting PVeemen, and
directing the Method of electing Officers, in the Colony."

The portion of the act bearing directly on qualifications for
deputies reads,

"And be it further Enacted by the Authority aforesaid.
That no Person shall be elected to the place of a Deputy, to sit
in the General Assembly of this Colony, but such as are
Freeholders^** therein, and Freeman of the same, and that each
respective Town shall elect their Number of Deputies, as
stated in the Charter, at the aforesaid Town-Meetings in
April and August." ^'*

There is certainly nothing in the above law limiting the
towns to the choice of a resident as deputy.

The digest published in 1772 has the following title page:

"Acts and Laws of the English Colony of Rhode Island
and Providence — Plantations. In New England in America;
Made and Passed since the Revision in June, 1767".

" "In considering the nature of these Digests, it must not be forgotten that they
represent only to a small extent the laws governing the Colony. The statutes of England
were the real laws here from the beginning until 1744; from that time only certain of the
statutes of England were in force."

Introduction to Digest of Rhode Island Colonial Laws of 1719, 11.
»» A freehold qualification first appeared in 1724. It was changed from time to time,
the amount required differing. At the time of the above quotation (1767), the exact re-
quirement was:

"And be it further enacted by the Authority aforesaid, that no Person whosoever
shall be permitted to vote, or act as a Freeman in any Town-Meeting in this Colony,
but such only who are inhabitants therein, and who, at the Time of such their voting and
acting, are really and truly possessed, in their own proper Right, of a Real Estate, within
this Colony, to the full value of Forty Pounds, or which shall rent for Forty Shillings per
annum, being an Estate of Fee-simple, Fee-tail or an estate in Reversion, which qualifies
no other Person to be a Freeman, or at least an Estate for a Person's own Life, or the eldest
son of such a Freeholder. And that no Estate of a less Quality shall entitle any Person to
the Freedom of the Colony."

Acts & Laws of R. I., 1767, 78.
"Acts and Laws of R. I., 1767, 86.

78 RHODE ISLAND

This volume contains no law on representation, so it is fair to
assume that the law quoted from the digest of 1767 was still
in force.

In 1783/°" however, the following law was passed regard-
ing the representation of New Shoreham (Block Island) :

"Be it enacted by the General Assembly and by the
authority thereof it is enacted. That the freemen of said town
of New Shoreham, when legally convened in town meeting
for choice of Representatives to the General Assembly, be
and they are hereby authorized and empowered to choose
any person, being a freeman of any town of the state, who is
seized, in his own right, of a freehold estate in the said town
of New Shoreham, to represent them in the General Assembly.
Provided, nevertheless. That such person, so elected be not
allowed to act or vote as a freeman of the town of his residence,
during the time he shall represent the said town of New
Shoreham as a Deputy; and that this act shall not be brought
into precedent by any other town in this State." ^"^

The law just given evidently arose out of a concrete case
affecting New Shoreham which came before the Assembly in
June, 1783. What this was we can see from the following:

"Whereas from the insular Situation of the Town of New
Shoreham, it will often be impracticable for the Deputies of
the said Town, who reside therein, to attend this Assembly:
And whereas the Freemen of the said Town, influenced by the
aforesaid Consideration, have made choice of Ray Sands,
Esq., an Inhabitant of the Town of South-Kingston, who is
seized of a freehold Estate in the said Town of New Shore-
ham, to represent them in Generall Assembly; It is there-
fore Voted and Resolved, That the choice of the said Ray
Sands as aforesaid be and the same is hereby approved, and
that the Freemen of the said Town of New Shoreham be and
they are hereby empowered to choose any Person, being a
Freeman of any Town in the State, who is seized in his own
right of a Freehold Estate in the said Town of New Shoreham
to represent them in General Assembly; any Law, Custom or
Usage, to the contrary notwithstanding; Provided, neverthe-
less, That such Person so elected be not allowed to act or vote
as a Freeman of the Town of his Residence, during the Time

'»» This is a marginal date which appears beside this law in the Digest of 1798.
>«• The Public Laws of R. I., 1798, 89-90.

RHODE ISLAND 79

he shall represent the said Town of New Shoreham as a
Deputy; and that this Resolution shall not be brought into
Precedent by any other Town in this vState." ^"^

It is quite evident from the above that by 1783 the prac-
tice of choosing only residents as deputies had come to be
recognized to such an extent that any variation from it
required the consent of the General Assembly.

The first definite law demanding a residential qualification
for deputies to the General Assembly appears in the Digest
of 1798. But it bears no date of passage, so for the reasons
given above we have stated that such a requirement became
operative some time between 1772 and 1783. In the Digest
of 1798, is a long act entitled:

"An Act regulating the Manner of Admitting Freemen, and
directing the Method of electing Officers in this State."

Section fifteen of this act reads:

"And be it further enacted. That no person shall be elected
to the place of a Representative to sit in the General Assembly
of this State, unless he be a freeholder of the town for which
he shall be elected and a freeman and inhabitant of the same;
having and excepting the provision made by law for New
Shoreham. . . ." lo^

To bring our study of Rhode Island to a close it is only
necessary for us to examine the repeal of the exception made
in the requirement of residence representation in the case of
New Shoreham. The record of this repeal is brief. In a
volume of Rhode Island Public Laws, published in 1810, the
following occurs under date of 1804:

"An Act to repeal an Act, entitled 'An Act regulating the
choosing of Representatives to represent the Town of New
Shoreham in the General Assembly of this State'." ^°^

This is all that appears, but with its passage non-residence
representation came to an end in Rhode Island in 1804.

"" Reprints of R. I. Acts and Resolves, June, 1783, 3.
10. The Public Laws of R. I., 1798, 123-124.
">• Ibid., 1810, 67.

CONNECTICUT

From the very beginning of the Connecticut settlement
Hartford was the political center. A general court met here
on May 1, 1637, composed of magistrates and deputies from
the three towns whose inhabitants had emigrated from
Massachusetts. Each town sent two magistrates and three
deputies. Each town's deputation was called its committee.^

From this date until 1639 whatever constitutional author-
ity the Connecticut government had it drew from Massa-
chusetts through its relation to that colony, it having been
governed for its first year by commissioners appointed by the
general court of Massachusetts. It is probable that these
commissioners, at the end of their ofificial term of office,
summoned the general court of May 1, 1637.^

The Fundamental Orders were adopted at Hartford on
June 14, 1639. The body by which this was done was probably
a convention of all the freemen of the colony. This was
Connecticut's constitution until the royal charter of April
23, 1662.

By the Fundamental Orders two annual sessions of the
general court were provided. Each of the three original towns^
was to send four deputies, and any towns that might be added
later were to be granted such number of deputies as the
general court thought proper in proportion to the number of
inhabitants.^

The spring session of the general court was like the May
session of the Massachusetts court in that it was a court of
election. By the Fundamental Orders this was to be held on
the second Thursday in April. But this date proving incon-
venient, it was changed, in 1646, to the third Thursday in May.
This session was attended by all the freemen of the colony
for the purpose of choosing the governor, deputy governor,
and at least six assistants. From the very beginning Con-

' Conn. Col. Recs., I, 1-9. » Hartford. Weatherfield, Windsor.

' Osgood, I. 305. < Conn. Recs., I, 24.

CONNECTICUT 81

necticut used the ballot and a system of nominations. All
voting at the court of election was by ballot. Persons for
whom votes were cast were nominated by the secretary,
who could only nominate some one proposed in a previous
general court. ^

The governor was simply the presiding officer of the
general court, which in Connecticut did not divide into two
Houses until October 13, 1698.^ The functions of the general
court were administrative, legislative, and judicial. For a
legal session there had to be present at least four assistants in
addition to the governor and a majority of the deputies.''
However, in 1661, the "river towns" obtained a modification
of this rule. In an act of October third of that year the towns
were requested to reduce their representation by half because
of the growing expense of the general court. In addition it
was provided that in case a general court had to be called at a
time inconvenient for outlying towns, it should have power to
act with less than a majority of the deputies in attendance,
provided that some were present from the river towns and
there were present also the requisite number of magistrates.^

The Fundamental Orders contained a unique provision by
which the general court could be called in session by the
freemen against the opposition of the colony officials. Under
such circumstances the majority of the freemen could order
the constables of the several towns to call a meeting of the
general court. Then after choosing a Moderator they were in
legal session.^

The royal charter of April 23, 1662, gave Connecticut the
constitution which was to last it through its colonial period
and well into its history as a state. This provided for a
representative assembly much like that already in existence,
although the charter used the words General Assembly.'"
It provided for two regular meetings, second Thursday in May

'Conn. Col. Recs., I, 21. 22, 140. 'Ibid., I, 24.

'Ibid.. IV, 267, 282. 'Ibid., I, 372.

' Ibid., 1,23. Due to the death of the governor and the absence of the deputy governor
there was a case of this kind in 1653 (Conn. Recs., I, 252).

•• "General Court" is used in the colony records until the division into two houses
October, 1698 (Records IV, 282).
6

82 CONNECTICUT

and second Thursday in October, Other sessions could be
called by the governor. The number of deputies each town
could send was limited to two,

". . . not exceeding twoe Persons from each place, Towne
or Citty, whoe shall bee from tyme to tyme thereunto Elected
or Deputed by the major parte of the freemen of the respective
townes, Cittyes and Places for which they shall bee soe
elected or Deputed, etc." ^^

Nothing in the above could be construed to restrict repre-
sentatives to residents of the towns sending deputies, so
Connecticut followed the common English practice of the
time. It is impossible, however, to check any actual in-
stances of non-resident representation prior to Court of
Elections of May, 1670; for in the record before that date
the names of the deputies only are given and not the names of
the towns which they represented.

Taking in alphabetical order the towns which show in-
stances of non-resident representation we have the following:

Branford was prepresented in the May court of 1693 by
William Ely,^^ ^ resident of Lyme, and a deputy of Lyme,^^ for
years in the general court."

Fairfield was represented in May Court of 1684, by John
Burr, a resident, and John Taylor^^ of Windsor. ^"^

Farmington was represented in General Court of October,
1693, by Ensign Thomas Judd of Waterbury. He, at the same
time, was deputy for his own town. The same thing was the
case in Court of Elections in 1700, only here Judd's name
appears as Lieutenant.''' He was a deputy from his own town
almost constantly from 1684-1705.'^

Greenwich made greater use of non-residents as deputies

"Conn. Recs., II, 5. "Ibid., IV, 92. "Ibid., IV, 3-532.

"The Editor of the Connecticut records thinks that this is an error of the colony
secretary and that Eleazer Stent's name should be substituted as Branford's deputy.
While this is possible such an error hardly seems probable. The only thing favoring
such a view is the fact that Stent represented Branford for years. There was, in the records
of the time, much carelessness in the use of proper names.

"Conn. Recs., Ill, 139.

'« Ibid., II. 223: Stiles, History of Windsor, 126, 224, 228, 352. This name furnishes
an illustration of note 4 on Page 52. In Connecticut records this name appears as Tyler,
in Schenck's History of Fairfield as Tyler, but in Stiles' history as Taylor.

"Ibid., IV, 104, 105. 150, 318. 319.

olbid., IV, 3-521.

CONNECTICUT 83

than perhaps any other Connecticut town. One man who
often represented it as well as other towns in which he did not
reside was John Banks, a lawyer of Fairfield.''-' This shows
the special prestige of lawyers in the legislative field which we
have to-day, had its beginning even at this early date. Banks
represented Greenwich in October, 1673; Court of Elections,
1677; October, 1677, and October, 1678.20 In all the above
cases Banks was at the same time a deputy from his home
town, while in October, 1677, he represented the three towns
of Greenwich, Fairfield, and Rye.-' In the last three Courts
mentioned above Banks had associated with him as Fair-
field's other deputy William Pitkin of Hartford .^^ who was
deputy for Hartford at the same time he was serving for
Fairfield.23

These two men. Banks and Pitkin, furnish more examples
of "double" representation than can be found in the whole
legislative history of Massachusetts up to the abolishment of
non-residence representation in 1693. Massachusetts shows
no case of a man representing three towns as Banks did in
1677. It is interesting to speculate whether in cases like this a
deputy would have three votes on any measure before the
General Court. The records are silent on the subject but it
seems very probable that such was the case.

In October Court of 1683 the deputy for Greenwich was
Joseph Theale.^* He was a resident of Stamford and had
represented his home town quite often.^^

Haddam had as its deputy in the General Court of October,
1673, John Gilbert.^^ Gilbert, though a non-commissioned
officer in the militia, was quite an important personage in
military affairs, having been employed as messenger for the
colony on several long journeys. He lived in New Haven.^^

Lyme furnishes three instances of non-resident repre-
sentation. In October, 1676, its deputy was Joseph Peck,-*^

••Conn. Recs., II, 521; Schenck, History of Fairfield, I, 351.

"Ibid., II, 209, 300, 318; III, 16.

" Ibid., II, 300. « Huntington, History of Stamford, 63.

"Ibid., II, 518. "Conn. Recs., II, 209.

"Ibid., II, 300, 318; III. 16, 17. "Ibid., 11,524.

"Ibid., Ill, 121. "Ibid., II, 286.

84 CONNECTICUT

a resident of New Haven.^^ In June, 1692, and May, 1693, it
was represented by Isaac Bronson.^" Bronson was a resident
of Waterbury, being one of the patentees of that place.^^
He later represented his home town.^^

Middletown is one of the towns from which, because of its
proximity to the seat of government, we should not expect to
find any examples of non-residence representation. But we
have two examples here. In October, 1676, one of its deputies
was John Graves. In this same session Graves represented
his home town, Guilford.^^ Graves is a good example of what
was plainly a practice in Connecticut during the seventeenth
century, that is, the long continuation in office of a deputy
who had proved himself able and worthy. Graves represented
his town at no less than twenty-eight sessions of the General
Court.^^

In the October session of 1696, one of the deputies for
Middletown was John Hall, who at the same time represented
his town of Wallingford. Prior to this he had been Walling-
ford's deputy and later represented both it and Middletown
in several sessions.^^ A causal glance at the Records might
seem to indicate that this name, John Hall, might be that of
two different men. The name was a common one, occurring
often in the records, which makes it hard to trace. Middle-
town had had a John Hall, but he died before this date, on
January 22, 1695.3« The Wallingford Hall lived until 1721."

Preston, in May, 1693, September, 1693, and October,
1694, was represented by Lieut. John Morgan.^^ Morgan
was a resident of New London and had been a deputy for that
town in two sessions of the court in 1690.^^ In May, 1693,
Preston was also represented by Captain Benjamin Brewster,
who was a resident of Norwich*" and was a deputy for that
town almost continuously from 1689-1697.''^ Another Nor-

" Conn. Recs., II, 87. 524. «' Conn. Recs.. IV, 197, 359.

'"Jhid., IV. 75, 92. » Ibid.. II, 287, 525.

"Bronson, History of Waterbury, 140. ** Ibid., II, 126-286; III, 16-155.

» Ibid.. IV, 174, 197. 283, 319, 327, 343, 481. 498.

•• Adams, Middletown Upper Houses, 572-574.

" Davis, History of Wallingford, 750-751.

••Conn. Recs., IV, 91, 102, 130. *o Ibid., IV, 69, 93.

" Ibid.. IV, 15, 23, 93. «> Ibid.. IV, 3-197.

CONNECTICUT 85

wich citizen who acted as deputy for Preston was John Tracy.
This was in May, 1695. Tracy had had previous legislative
experience as a deputy from his home town.^-

Rye, a town in the extreme western part of the colony,
employed John Banks, whom we have met already, ex-
tensively as its deputy. In fact, he is the only non-resident
that ever represented the town. Between the years of 1670-
1680 he was Rye's deputy in eight sessions of the general
court, five of these being courts of elections.^'' Rye was in
Connecticut until 1683, when by terms of an agreement be-
tween the agents of the two colonies, regarding the boundary,
a new line was run which placed Rye in New York. Upon
petition of Rye and Bedford in 1696, they were received back
into the colony of Connecticut, but by an order of king in
Council of May 27, 1700, they were put back under the
jurisdiction of New York.^"*

Stonington was represented in October Court of 1675 by
John Gilbert of New Haven. We have already had an in-
stance of his serving for Haddam.^^ In October Court of 1686,
Stonington was represented by James Avery*" of New London.
Avery was also a deputy for his home town in this court and
served it in that capacity for many sessions between the
years 1665-1689.^^ In May of 1692,''8 Isaac Wheeler of
Fairfield'*^ was deputy for Stonington.

Stratford was represented by John Wells in September,
1689, and October, 1693. In the meantime he had represented
New Haven at a Special General Court held February 21,
1693.^" The colony records give no clue as to his place of
residence but the name was a common one in Stratford^S so
that was probably his home.

Waterbury had as one of its deputies in the general court
of 1690 and again in 1693, Lieutenant John Staley. He was a

" Conn. Recs.. IV, 130. 138.

"Ibid.. II, 127, 147. 170, 180, 184, 318; III, 2, 48.

"Ibid., II, 15; IV, 191-192, 328.

'• Ibid., II, 265, 524. Jonathan Gilbert who represented Hartford in 1677 is a different
Gilbert. He lived in Hartford (Recs. II, 518).

"Ibid.. Ill, 44. "Schenck, History of Fairfield, 274, et seq.

"Ibid.. Ill, 2-253. •» Conn. Recs., IV, 2, 87. 104.

" Ibid., IV, 66. '■ See Orcutt. History of Stratford.

86 CONNECTICUT

prominent citizen of Farmington and represented Farmington
in both of the above years as well as at many other times. In
the records for the court of 1690 we find the name appearing
once as Lieutenant Stanley and again as Captain Stanley,
which might lead to the supposition that two different men
were meant. But Stanley was not made a captain until
May, 1691,^2 so evidently the different titles were employed
because the same man appeared as deputy for two towns.

A study of the data for Connecticut shows several contrasts
to the situation in Massachusetts.

First, non-residence representation in Connecticut was
evidently increasing in the latter years of the seventeenth
century. This was probably due to the fact that new inland
towns were springing up. Nearly all the towns of the colony
up to the year 1680 were either on or near navigable water.

Secondly, on the whole there was less non-residence repre-
sentation in Connecticut than in Massachusetts. The more
compact colony, central location of the capital and the factor
of navigable streams, already mentioned, all had a part,
without doubt, in producing this result.

The end of the century brought no change in the law or
custom governing representation. As the century drew to its
close, it witnessed, however, a radical change in the organiza-
tion of the general court. On October 13, 1698, the court
divided into two bodies called the Upper and the Lower
House.^'' Each was to have the rights and privileges common
to bicarmeal legislatures of the time.

To give all the examples of non-residence representation
throughout the eighteenth century would be both tedious and
unnecessary. Let it suffice to say that the practice was not
changed. Connecticut was not inclined to change her political
customs, in fact boasted of their stability; and this one
particular custom lasted well on into the period of her state-
hood. We have no Journal of the Proceedings of the General
Assembly after 1780 until comparatively recent times; but
a brief glance at that of the last few years before 1780 will still

"Conn. Recs.. IV. 23, 47. 92. '» Ibid., IV, 267, 282.

CONNECTICUT 87

show the custom operative though evidently the towns did
not often avail themselves of it.

Ephraim Hubbell of New Fairfield represented his own
town in January, 1769, and May, 1771; but Kent in May
and October, 1769, and October, 1771.^^ At a still later date
he served many sessions for each of the above places.''^ Josiah
Phelps of Windsor^^ represented either his own town or
Harwington at every session of the General Assembly from
1769 to 1777," while at the following sessions he represented
them both at the same time: May, 1771, May, 1773, May,
1775, and July, 1775.^'*

John Brooks of Stratford was the representative of his
own town in May, 1773, but represented Haddam in October,
1773, and many times thereafter.^^

Major Ebenezer Say of Sharon after serving his own town
as representative for several sessions, acted in the same
capacity for Stafford in 1 777-1 778.«''

One Aaron Austin often represented New Hartford and was
probably a resident of that place, although the records are not
definite concerning it. But in the Assembly of May, 1778, he
represented both New Hartford and Torrington.^^

The last instance in point of time that we can give is that of
Increase Mosely, who represented both Woodbury and Wash-
ington in the Assembly of May, 1779.*^'- His place of residence
cannot be definitely established.

So much for the practice. Now let us see what the later
Connecticut law said on the matter. We have already seen
that under the charter of 1662 no check was placed on non-
residence representation. The next legal reference to a
qualification for deputies was in 1750, when the laws of the
colony were revised. This reads:

"And that the Freemen in every Town in this State, shall
have Liberty to send one or two Deputies to every session of

" Conn. Recs.. XIII. 123, 170, 235, 408, 414. 512. » Ibid., XIV, 228.

"Ibid., XIV and XV. "Ibid.. XIV and XV.

•« Ibid., XIII, 413, 415; XIV. 71. 72; XV. 2. 4. 90. 92.

i*Ibid., XIV. 33. 72. 159. 213. 252. 353.

•• Public Records of the State of Conn., I. 3, 62, 90. 408. 410. 469. 473. 522.

'i Ibid., II. 3. "Ibid., II. 250.

88 CONNECTICUT

the General Assembly. . . . And that no person shall be
accepted a Deputy in the General Court, that is not known to
be a Freeman of this state, and regularly chosen thereunto
by the Freemen of that town for whom he serves. . . ."

Exactly this same wording is kept in a publication of
the laws of the colony and state of 1786, 1796, and 1808.«'

Before this last publication of laws was made the agitation
had started which was to give Connecticut a new constitution,
and incidentally place a residential qualification on repre-
sentatives in the state legislature. Hollister says that

. . . "as early as 1800 petitions began to be circulated
through the state asking for the choice of members of the
council and representatives in Congress by districts. ^^ The
demand for a new constitution was fought out along party
lines, the Democrats demanding it and the Federalists
saying Met well enough alone'."

So pressing were some of the wrongs, real or fancied, which
existed under the old charter that the fight centered around
them, and such questions as the one in which we are especially
interested were overshadowed.

The contest lasted twenty years, growing more and more
bitter. This was partially due to the religious question being
pushed to the front as the dissenting sects gradually increased
in number. Their part in it is clear when we remember that
Connecticut had an established church, for the support of
which everyone was taxed unless he could show that he was
a member of some other denomination. How the members
of the established order viewed the new movement we can see
from the pen of one of their ablest ministers and one, by the
way, who afterwards saw that he had been on the wrong side
and was willing to admit it.

"The ambitious minority early began to make use of the
minor sects on the grounds of invidious distinctions, thus mak-
ing them restive. So the democracy, as it rose, included nearly
all the minor sects, besides the Sabbath breakers, rum-

•• Acts and Laws of Conn. (1786), p. 28 (1796), p. 126. The Public Statute Laws of the
State of Conn. (1808), note 18, p. 203; note 21, p. 204.
•' HolHster, History of Conn., H, 512.

CONNECTICUT 89

selling, tippling folks, infidels, and ruff-scuff generally, and
made a dead set at us of the standing order." ^^

It is a little difficult for us at this distance to realize just
how bitter such a conflict could become. The following will
illustrate. On August 29, 1804, the Republicans held a con-
vention in New Haven, the sole object of which was to de-
mand a new constitution. Every justice of the peace who
attended that convention was impeached and tried by the next
general assembly.*^

In an attempt to dissipate the rising storm the assembly in
1810 offered to divide among certain denominations a portion
of the sum received from the United States for the state's
Revolutionary expenses. But the Baptists and Methodists
refused their share and the offer only added fuel to the flames.

Year by year the Democrats gained headway until in
1817 the victory came. A coalition was formed of all the dis-
affected interests, and the party adopted Toleration as both
its name and its motto.

In the election of this year the Toleration party fought not
only for a new constitution but also for the repeal of the
"Stand Up Law", requiring open voting. They argued that
publicity intimidated men from voting as they wished; for
their creditors and those to whom they were under obligation
knew how they voted. When this subject was under
discussion in the October session of the assembly, a Mr.
M'Clellan, speaking for a continuance of the old method, said
in part:

. . . It is said that men will not dare to stand up and
let it be known who they vote for — -and pray what is it if a
freeman in Woodstock is to vote for a man in Fairfield County?
Such is the independence of freemen, that not one would be
unduly affected by declaring his choice." ''^

The nominee for governor of the Toleration party was
Oliver Wolcott, a member of one of Connecticut's oldest
families. He had, however, resided in Washington and New

"Lyman Beecher, Autobiography, I, 342.

"HoUister, II, 512. «' Connecticut Courant, Nov. 4. 1817.

90 CONNECTICUT

York for a long time, and in the eyes of his political opponents
this had had a bad effect on him. One said that by his ab-
sence,

". . . He had unfortunately lost all the peculiar habits
and manners of a citizen of Connecticut, and forgotten the
policy of his ancestors." ^^

Nor were all the attacks on Wolcott of this mild character.
It was openly and persistently charged throughout the
campaign that he had burned the War and Treasury building
at Washington, while Secretary of the Treasury, in order to
cover up his embezzlement of public money.

The Federalist nominees were John Cotton Smith for
governor and Jonathan Ingersoll for lieutenant-governor.
These two were also representatives of two illustrious Con-
necticut families. The feeling of these men and their sup-
porters cannot be better stated than by the following address
to the Freemen of Connecticut, published in the Courant,
March 4, 1817.

"At an early period of this country our ancestors made for
themselves a constitution and form of government which has
continued, with little variation for almost two centuries, and
has the advantage of experience, which gives stability of a
government. The administration has been such as to secure
to the people civil and religious liberty to as great an extent
as has fallen to the lot of any portion of the human race.
Provision for the distribution of justice, and the support of
schools, literary and religious institutions, secured to all, their
civil rights, the benefits of education, and the enjoyment of
religion, with the most perfect freedom as to the rights of
conscience. A government, from which its citizens have
derived such important advantages, has deservedly possessed
their confidence and support, and has thereby been enabled
to exist unimpaired, even under revolutionary convulsions.

"Members of the legislature and the officers of the govern-
ment of this state, were, till of late years, uniformly elected
by the freemen, uninfluenced by political parties.

"Unfortunately a party has been organized in this state,
who deny that we have any constitution, and claim that our
government is a usurpation; who have been, and are now

••Connecticut Courant, March 18, 1817.

CONNECTICUT 91

pursuing, with indefatigable and persevering industry, every
measure in their power to undermine and overturn, or to
effect a change in our state government. To attain their
object . . . they have even pressed into their service the
cause of religion, and have endeavored to excite discontent
and dissatisfaction among particular denominations of
Christians, and to impress them with a belief that they are
treated with intolerance.

"Connecticut has hitherto resisted all the attacks that
have been made on her constitution and government. Her
course has been honorable to her freemen, we feel an honest
pride in a review of it. To enable us to preserve and hand
down to posterity unimpaired, this fair inheritance, which
we have derived from our forefathers, nothing is wanting but
a faithful discharge of the important duties which devolve on
every freeman. . . ."

In the campaign speeches the statement was often made
by the Federalists that

. . . "Connecticut is the oldest government in Christendom,"

and the aim of their opponents was spoken of as "Over-
turning the government of the state and "Revolution".
Some even went so far as to suggest that divine vengeance
would be meted out to innovators.

"To attempt to disturb the generall order and peace of
this little state is to war against the best tempered good that
heaven bestows on man. . . . It is ingratitude.
It is impiety and if you persist and throw the state into the
hands of irreligious and unprincipled men you will meet with
the frowns of a righteous providence." ®^

Election date was April 17, 1817. Wolcott was elected
and with him an assembly a majority of whom were favorable
to a new constitution. The Federalist press at once began to
picture the evils that would result.

"Instead, then, of our present truly popular and republican
system, we must expect one more aristocratic, and more nearly
conformed to the monarchial plan — that is, a governor to
form a distinct independent branch of the legislature, a senate,
probably like many of the professed republican states, for

"A letter signed Senex — Conn. Courant, August 19, 1817.

92 CONNECTICUT

three or four years the state divided into districts, and each
district to become, of course, the theatre of demagogues." '"

In May, 1818, the legislature authorized the calling of a
constitutional convention. It met August 20th, and soon
completed its work. The people of the state then voted on
the new constitution, October 5, 1818, giving it a majority of
1,554 out of a total vote of 26,282. When the constitutional
convention met a committee was appointed to draft a constitu-
tion for the consideration of the convention. Art. Ill, Sec.
Ill, of this draft reads:

"The house of representatives shall consist of electors,
residing in town from which they are elected." ^'

This change in custom a century and a half old in Con-
necticut evidently aroused no opposition, for we read in the
Journal :

"The Third Article, relating to the Legislative Depart-
ment, was then read and considered by sections, and after an
amendment, varying the style only, was approved." ^"

'"> Conn. Courant, September 2, 1817.
" Journal, p. 79.

"Ibid., p. 22. An attempt was made to district Senators also (Journal, p. 29) but
was unsuccessful. They were elected at large until 1828. (Amendments, Art. II and III.>

NEW HAVEN

It should be kept in mind that for the first few years of its
existence New Haven colony and town were one. It was
founded by the little company of Puritans which followed
Davenport and Eaton from England and politically was
entirely independent of any colony already established.

The first political meeting, of which we have record, held
in the colony, was the famous gathering in Newman's barn,
June 4, 1639. At this it was decided that the Bible was the
sole and sufficient guide in affairs of government as well as in
private matters. Davenport presented the query which was
affirmed by open vote,

"Whether the Scripturs doe holde forth a perfect rule for
the direction and government of all men in all duties which
they are to performe to God and men as well in the govern-
ment of famylyes and commonwealths as in the matters of
the church." ^

The political body here formed consisted only of church
members.

"All having spoken ... it was agreed upon . . .
as on order whereunto every one that hereafter should be
admitted here as planters should submitt and testefie the same
by subscribeing their names to the order, namely, that church
members only shall be free burgesses, and that they onely
shall chuse magistrates and ofificers among themselves." ^

The governing body of the colony from the date of the
signing of this agreement, June 4, 1639, to October 25, 1639,
was seven magistrates or "seven pillars" of the church.
The body of freemen assembled chose twelve men fit for this
office and from this body of twelve seven were chosen by lot.
The seven magistrates voluntarily resigned their places on
October 25, 1639, and the whole body of freemen elected a
magistrate and four deputies to manage the public affairs of

•New Haven Records, I, 12.
'Ibid.. I. IS.

94 NEW HAVEN

the plantation.^ It was also decided that these officers were
to be elected yearly at a general court to be held in the last
week of October.^

New Haven's only title to the land she occupied was by
purchase from the Indians in 1638. In 1640 further pur-
chase was made both on the mainland and on Long Island.
It was on these later purchases that the towns of Stamford,
Branford, and Southold were established. The first two by
seceders from the church and town of Weathersfield ; the
latter by a company of folk directly from England. In all
these sales New Haven stipulated that the new towns were to
look to her as the political center of the colony. Just what
this political connection was to be seems quite indefinite, as
can be seen from the agreement with Stamford which reads:

". . Thirdly, that they join in all points with this

plantation in the form of government here settled." ^

The formation of a united government, politically and
territorially, was directly due to New Haven entering the New
England Confederacy in 1643. She had had two commissioners
present at the meeting at Boston at which the articles of union
were drafted and signed. After their return a general court was
convened at New Haven, October 27, 1643, in which for the
first time the outlying towns were represented. The towns
met on a basis of equality, Milford, Guilford, and Stamford
each sending two deputies.^ The form of government adopted'
was similar to that existing in the neighboring colonies with
the exception of the requirement of church membership for
freemen. It provided for a general court of governor, deputy
governor, magistrates, and two deputies for each town.
All were to sit as one body. The court was to meet in two

' New Haven Records, I, 20-21. The word plantation is commonly used in the Records
in speaking of a town's local affairs. In contradistinction to this the word "jurisdiction"
was used in referring to a strictly colonial matter involving the united interest of several
towns.

'Ibid., I, 21.

•Atwater, History of the Colony of New Haven, 175.

• It should be borne in mind that prior to this Milford and Guilford had been polit-
ically independent of New Haven. Fairfield from its settlement belonged to Connecticut
and thus kept New Haven from being a territorial unit.

'New Haven Records, I, 112-115.

NEW HAVEN 95

annual sessions, April and October, the latter being the court
of election. All freemen could vote for governor and magis-
trates, and as in the other colonies there was a proxy arrange-
ment by which those could vote who could not attend the
court of election.

The provision regarding deputies reads that there shall be

"two Deputyes for every plantation in the Juris-
diction, which Deputyes shall from time to time be chosen
against the approach of any such Generall Court by the afore-
said free burgesses. . . ." *

While this certainly did not limit the freemen's choice
to their fellow citizens yet the records show not a single case of
non-residence representation.^ The reason for this probably
lies in the accessibility of New Haven from each town either
by land or water.^"

New Haven shows a remarkable continuity of service on
the part of its deputies. Every town kept practically an
unbroken delegation in the general court from 1653 to 1662,
when factions in certain towns declared their allegiance to
Connecticut. The last general court of the colony met on
December 13, 1664.^^ It was a primary as well as a representa-
tive assembly. After long and careful consideration of the
claims of the Duke of York on the west and of the dangers to
all the colonies attending the visit of the royal commissioners
the colony yielded to the demands of Connecticut and became
a part of that government.

» New Haven Records, I, 14.

•There are no records for the colony of New Haven from 1644 to 1653 except for a
Court of Magistrates in 1646 and for a Court of Election in October, 1646. (New Haven
Records, II, IV). But from 1653 until New Haven's absorption by Connecticut they are
complete.

'" The towns represented in the later days of the colony were: New Haven, Guilford,
Milford, Stamford, Branford and Soutbold.

" New Haven Records, II, 549.

NEW YORK

During the Dutch rule in New York there was no legislature.
Government centered in a director and council. The director's
authority came from a mercantile company in the Nether-
lands, while the council was a small body mainly composed of
the director's appointees. Attempts on the part of the colo-
nists to influence affairs in any way were always opposed.

After the capture of the colony by the English the royal
charter of 1664^ simply substituted an English duke as pro-
prietor in place of a group of Dutch merchants. He was
given authority

. . . "to correct, punish, pardon, govern and rule all such
the subjects of us Our Heirs and Successors who may from
time to time adventure themselves into any of the parts or
places aforesaid."

He was aLso given authority

. . . "to make, ordain and establish all manner of Orders,
Laws directions, instructions, forms and Ceremonies of govern-
ment and Magistracy fit and necessary for and Concerning
theGovernment of the territories and Islands aforesaid. . . "

There was reserved, however, to the colonists the right of
appeal to the King in cases where they felt justice had not been
received at the hand of the proprietor or his agents.

One of the first steps taken by the royal commissioners
after the surrender of the colony was to issue a proclama-
tion promising the people protection,

. . . "and all other privileges with his Majesty's subjects." -

With the examples of Massachusetts, Connecticut, and
Virginia before them we know what "privilege" was most
highly prized by the colonists. Without doubt it was repre-
sentation in the government.

In addition to the proclamation this hope was strength-

'Brodhead. II. 651.

» Journal of the Legislative Council, I; Introduction, III.

NEW YORK 97

ened by a letter written by Governor Nicholls late in August,
1664, to Captain Young, of Long Island. In this the governor
thanked those who had taken up arms in helping establish
the English rule. Further than that he promised that

"Deputys shall in convenient time and place, be sum-
moned to propose and give their advise in all matters tending
to ye peace and benefitt of Long Island." ^

That the governor had no authority to make such a promise
is evident from reading his commission.^ But he kept his
promise to a certain extent though quite evidently not as the
people understood it. A few months later he addressed a
circular to "The Inhabitants of Long Island"'^ in which after
recounting the trials of the Long Island towns he ordered:

"That upon the Last day of this present ffebruary at
Hempsteed upon Long Island, shall be held a Generall meet-
ing, which is to consist of Deputyes chosen by the Major part
of the freemen onely. . . ."

Further reading makes it quite evident that what the governor
had in mind in calling this assembly was to settle the numerous
boundary disputes which existed between many of the towns.
In response to this proclamation, two representatives from
each of seventeen towns'' met the governor at Hempstead on
March 1, 1665. The only record we have of the business
transacted is an address to the Duke of York^ and the orders
issued in connection with two suits over boundaries. We have
noticed that only Long Island towns were represented at
the above assembly. For that and other reasons which are
obvious the gathering could not be dignified by the name
legislative assembly.

Il^i Time went by and Nicholls made no move to call another
assembly. There were murmurings, especially on Long
Island, which had the largest proportion of English inhab-

» Journal of the Legislative Council, I; Introduction, IV.
« Brodhead, II, 653.

' Journal of the Legislative Council, I; Introduction, IV.

• The names of the towns and the men representing them may be found on page five
of Introduction to the Journal of the Legislative Council. Vol. I.
'N. Y. Col. Docs., Ill, 91.
7

98 NEW YORK

itants. But matters did not reach an acute stage until Nicholls
was leaving the colony, having been replaced by Lovelace.
Then in November, 1669, petitions from eight towns were
presented to the Court of Assizes, praying for the redress of
several grievances, the principal one^ being that an assembly
had not been called from time to time as promised by Governor
Nicolls. The reply they received was,

"In answer to ye 1st head wherein they desire to have
Deputyes to be Joyned with ye Governor and Council. . . .
It doth not appeare that Col. Nicholls made any such prom-
ise. ..."

Nearly a year passed before the towns had another
opportunity of making a protest. This opportunity grew out
of an attempt on the part of the governor to levy a tax to
repair the palisade surrounding the fort at New York. Many
of the Long Island towns refused to contribute and, while their
stated reasons differ, the principle back of the refusal was the
same in every case. For instance, one town agreed to contribute

. . . "if they might have the privilege that other his Ma-
jesty's subjects in these parts have and do enjoy."

Another stated its refusal

. . . "because they were deprived of the libertys of English-
men."

It is interesting to note that these remonstrances were publicly
burned before the city hall in New York.

There now followed the period of reoccupation by the
Dutch which lasted until 1674. The return of English rule
was marked by the appointment of Edmund Andros as
governor. If there was much agitation during his term of
ofifice for an assembly the only hint we have of it is in two
letters from the Duke of York to the governor. In 1675 he
wrote :

. . . "touching Generall Assemblys which ye People there
secme desirous of in imitacon of their neighbor colonies, I

» For a summary of this whole period see the Historical Introduction to the Journal
of the Legislative Council.

• Journal of the Legislative Council, Introduction, VI, VII.

NEW YORK 99

think you have done well to discourage any Mocon of yt
kind"; 10

and again in the following year,

"Such assemblyes I cannot but suspect would be of
dangerous consequence, nothing being more knowne than the
aptness of such bodyes to assume to themselves many privil-
edges which prove destructive to, or very often disturbe, the
peace of ye governemnt, wherein they are allowed. Neither
do I see any use of them, etc." i'

The opportunity for a final and effective protest on the
lack of an assembly in the colony grew out of an oversight
on the part of Governor Andros. Orders for the collection of
the duke's revenues had been issued regularly each three years.
One was issued in 1677 and expired by its own limitation in
1680. Almost coincident with the expiration of the order of
1677, Andros sailed for England to answer certain charges
against his administration. He neglected to mention the
customs duties in his final order to Brockholls, who was to be
in authority during the governor's absence, but did order that
all things should remain "as then settled". Quickly grasping
their opportunity the merchants early in the spring of 1681
refused to pay the custom dues on incoming cargoes. Then
followed a period of suits and counter-suits on the part of
Dyer, the collector, against various merchants and of the
merchants against Dyer. But the point to keep in mind is
that during this year the duke was getting practically no
revenue from his colony. The Long Island towns taking ad-
vantage of the disturbed condition began to assert their rights
again and in some cases local authorities refused to carry out
the orders of Brockholls and the council. i-

Of course full reports of conditions were made by Brock-
holls. In one of his letters he said that the government

"is much disliked by the People who generally cry out for an
Assembly. . . ." '^

'»N. Y. Col. Docs., Ill, 230.

"Ibid., Ill, 235.

" For a full acount of the above see Osgood, II, 162-164.

"Journal of the Legislative Council, I, IX.

100 NEW YORK

The duke now yielded to the demand of his colonists but
there is no doubt that his impelling motive was an economic
one.''' On March 28, 1682, he wrote to Brockholls as follows:

". . . I send this to tell you that I intend to establish
such a forme of government at New Yorke as shall have all
ye advantages and priviledges to ye inhabitants and traders
there, which His Mats other plantacons in America doe
enjoy, particularly in ye choosing of an Assembly, and in
all other things as nere as may be agreeable to ye laws of
England." ^"

Colonel Thomas Dongan was now appointed governor by
the duke and among his duties was the carrying out of the
promise of an assembly. Considerable space was given in his
Instructions^^ to this matter. As soon as possible after his
arrival he was to issue a summons calling an election of repre-
sentatives. The assembly was to consist of not more than
eighteen members. They were to have freedom of debate but
all measures passed were to be subject to the assent and
dissent of the governor. The proprietor was also to have a
negative on all laws. Regarding revenue all laws on the sub-
ject should plainly state that the money raised was for the
express use of the proprietor, and no bill decreasing the
revenue could be passed without the prior consent of the
proprietor.

Late in August, 1683, Governor Dongan issued writs for
the election of representatives to the assembly.'^ The date
set for its meeting was October 17 and the place of meeting
was to be Fort James in New York City. The assembly thus
chosen met at the appointed time and place. Its journal
having been lost the names of most of the men comprising it
are not known. This assembly sat for three weeks and
passed fourteen acts, only one of which affects this study.

This was an act entitled

"Journal of the Legislative Council, I, XVI. For quite a different view, however,
see Brodhead, II. 373-374.

'•N. V. Col. Docs.. Ill, 317.

"Ibid., III. 331-334.

" Journal of the Legislative Council, I, XI. This reference also contains the names
of towns or districts entitled to representation and the number of representatives assigned
to each.

NEW YORK 101

"The Charter of Liberties and Frivileciges, granted by his
Royal Highness to the Inhabitants of New Yorke and its
dependencies." '*

This stated that the Charter was enacted

"by the Governor, Councell, and Representatives,
now in Generall Assembly met."

And further,

. . . "That the Supreme Legislative authority, under his
Majesty and Royal Highness James Duke of Yorke, Albany,
etc., Lord Proprietor of the said Province, shall forever bee
and reside in a Governour, Councell. and The People, mett
in a Generall Assembly."

Another provision was,

. . . "That, according to the usage, custome and practice
of the Realm of England, a sessions of a Generall Assembly be
held in this Province, once in three years at leaste."

Representatives were apportioned to the counties''-* and
it was provided that

. . . "every freeholder within this Province, and freeman
in any corporation, shall have his free choice and vote in the
electing of the Representatives, without any manner of con-
straint or imposition, and that in all elections, the majority
of voices shall carry it."

This charter along with the other laws passed by the first
assembly were finally approved by the proprietor in England,
but their return was delayed, and before they were sent the
death of Charles the Second changed the whole situation,
automatically changing New York from a proprietary to a
royal province. Within a month of the duke's accession to
the throne as James the Second, the laws passed by the New
York Assembly, or at least the charter above referred to,
came before the Committee of Trade and Plantations for
examination. A report was made on it by a meeting at which
it is said James presided in person. The section providing

" Brodhead. II, 383; Ibid, note p. 382; N. V. Col. Docs., Ill, Note p. 355; N. V.
Col. Laws (1664-1776), I, 111.

'• The names of these with their boundaries were given in another section of the act.

102 NEW YORK

. . . "That the Supreme Authority shall remain in the
Governour, Councell and the People mett in a Generall
Assembly"

was objected to on the ground that,

. . . "The words The People met in a General Assembly
are not used in any other Constitution in America; but only
the words General Assembly." -"

Several other sections were objected to also and as a
result of the hearing the charter was not confirmed. Two
days later James wrote Dongan-^ calling his attention to the
fact that the death of Charles had ended the proprietorship
and asking him to tell the people that the new king had com-
mitted

. . . "to Our said Privy Council the care of Our said Province
with the consideration of the several bills and addresses lately
presented unto us from Our assembly there. They may
shortly expect such a gracious and suitable return by the
settlement of fitting privileges and confirmation of their
rights as shall bee found most expedient for our service and
the welfare of Our said Province."

In the meantime the assembly met in its second session in
October, 1684. Thirty-one acts were passed and assented to
by the governor, none of which affects this study. Before the
time of the third session, in the fall of 1685, news of the king's
death reached the colony and the question was at once raised
whether the assembly was not dissolved in consequence.
Upon the advice of the council, Dongan dissolved the as-
sembly and ordered the election of a new one.^-

The assembly elected in response to this summons met in
November, 1685. Only six acts which received the governor's
approval were passed. In adjourning, the assembly set as the
date of its second session September 25, 1686, but as events
were to prove, the first session was the only session of a New
York assembly during the reign of James the Second. As the
time drew near for the second session of the second assembly,

" N. V. Col. Docs.. Ill, 357. » Journal of the Legislative Council, I, XIV.

>' Ibid.. III. 360.

NEW YORK 103

no official order had come from England forbidding its
meeting. Nevertheless, on September 4, 1686, Governor
Dongan prorogued it until March 25th following.^^ The
governor must have had secret advice of the decision of the
king for just ten days after he prorogued the assembly he re-
ceived his commission as royal governor of the province;^''
a commission which expressly empowered him to exercise full
legislative and executive power in conjunction with the council.
His Instructions, which accompanied his commission,
contained this paragraph:

"And whereas wee have been presented, with a Bill or
Charter passed in ye late Assembly of New York, containing
several ffranchises, privileges and Immunitys mentioned to be
granted to the Inhabitants of our said province. You are to
Declare Our Will and pleasure that ye said Bill or Charter of
Franchises bee forthwith repealed and disallowed, as ye same
is hereby Repealed, determined and made void." ^^

When one keeps in mind the movement on at this time to
combine all the New England colonies into one government
and to vacate the charters of all those colonies which would
not voluntarily surrender them, the abolishing of the assembly
in New York simply becomes part of a movement to substitute
in America government by royal authority, without regard to
the desires of the governed for the limited freedom which most
of the colonies had enjoyed up to this time.

We can do no better in closing this study of the preliminary
steps in the development of an assembly in New York than
to quote Osgood :

"New York consisted as yet of a number of loosely con-
nected sections. The two components of its population —
Dutch and English — had not yet grown together into a
political whole. They spoke dififerent languages. Many
differing forms of religious faith existed within the province.
The larger part of its people had long been accustomed to
autocratic rule. The charter guaranteed nothing different.
Commercial interests predominated in the city, where, if
anywhere, continued and successful opposition to autocratic

'• Journal of the Legislative Council, I, XV.

» N. V. Col. Docs., Ill, 378. " Ibid.. Ill, 370.

104 NEW YORK

government could be maintained. New York, moreover,
formed the center and starting point of a great imperialistic
scheme of colonial union, and it was without power to resist.
For these reasons the permanent establishment of repre-
sentative institutions in that province was postponed until it
could be achieved by a government in England which favored
their maintenance in all the colonies." ^^

News of the landing of William of Orange in England
reached New York in February, 1689. Lieutenant Governor
Nicholson tried to keep it secret at the same time attempting
to get into touch with Governor Andros who was in Maine.
But the news through other sources reached Jacob Leisler,
a well-to-do merchant of New York City. For personal
reasons Leisler was not on good terms with several of the
leading councilors, yet the peace of the colony does not seem
to have been disturbed until news reached New York of the
uprising in Boston and the later imprisonment of Andros.
This was the signal for Leisler and his followers to undertake
a similar movement in New York. The details of the so-
called Leisler Rebellion do not concern this study, but on the
other hand, the fundamental aim of the revolt does concern
it intimately. Osgood says that the Leisler rebellion has its
place in a series of events — mainly protests — which began
with Kieft's Board of Nineteen, and which finally resulted in
the permanent grant of a legislature to New York in 169L"

Lieutenant Governor Nicholson left New York for Eng-
land in June, 1689, and for nearly two years there was no
representative of the crown in the colony except the members
of the council whom Leisler refused to recongize. After a
year of turmoil and because of need of funds to carry on the
Indian war which had now reached an acute stage, Leisler
called an assembly in April, 1 690. The only act of importance
was one providing for the raising of revenue. This assembly
met again in September. There is no way of telling whether
the representatives composing this assembly were all residents
of the counties they represented.

"Osgood. II. 168.

" For a full atatement of the various elements entering into the Leisler Rebellion,
see Osgood. III. Chap. XV.

NEW YORK 105

While New York was passing through this period of turmoil
a new governor had been appointed (1689), but he did not
reach the colony until 1691. On March 19, of that year,
Governor Sloughter arrived and promptly published his com-
mission. This commissions^ ordered the early calling of an
assembly. Writs were issued for an assembly to meet April
ninth. Under this commission all laws passed by the assembly
were subject to a double veto, of the governor and of the
crown. It should be remembered, however, that laws re-
ceiving the governor's approval were considered in force in
the colony from the time of such approval until word came of
the crown's veto. The assembly met at the stated time, and
on May 13th, passed an act entitled:

. . . "An Act declaring what are the Rights and Priviledges
of their Majesties Subjects inhabiting within their Province
of New York." ^^

This act closely followed the so-called charter passed
by the assembly of 1683. The opening paragraph thanked
the crown for

. . . "restoring to them the undoubted Rights and Privil-
edges of Englishmen."

The act provided for a session of the assembly each
year; that all freemen of any corporation and every freeholder
of the province should have a vote in the choice of repre-
sentatives. The term freeholder was defined as meaning one
who should have
. . . "forty shillings per year in freehold."

A further provision was that the assembly was to be
the

. . . "sole Judges of the Qualifications of their own mem-
bers."

But no residential requirement appears in the act.^"

•« N. V. Col. Docs., III. 624. •

"Colonial Laws of N. Y.. I, 246.

•" Since this is the first of the unbroken line of New York Assemblies the apportion-
ment of representatives may be of interest.

City and County of New York 4

Suffolk County 2

Queens County 2

106 NEW YORK

Governor Sloughter was succeeded the next year by
Fletcher, whose administration covered the years 1692-1698.
During this period there was a revolt in the minds of many
men over the penalty inflicted on Leisler and Milborne. The
small property-holders, the propertyless, and the rural people
came to see in Leisler, though now dead, a champion of those
principles which were at stake in their contests with the
wealthy merchants of New York and the great landholding
gentry. As a result the elections of the period covered by
Fletcher's and Bellomont's administrations and extending
even into Cornbury's (1692-1702), were bitterly contested
between the Leislerians and the anti-Leislerians or Jacobites,
as their political enemies called them. Fletcher sided with the
aristocratic party and there is plenty of proof that during his
administration the assembly was dominated and intimidated
and elections interfered with.^^

Richard, Earl of Bellomont, had been appointed governor
in 1695, but did not arrive in the province until early in 1698.
He at once let it be known that he thought colonial affairs
were in bad shape and that his opinion of his predecessors was
not a very good one. This, of course, gave hope to the
Leislerian faction and won for Bellomont the opposition of
the merchants and propertyholding class. It is interesting to
note the difi"erences in the charges against Fletcher and Bello-
mont by their respective enemies. The Jacobite side of the
controversy is set forth in full in Accusations vs. Bellomont,
which can be found in New York Colonial Documents, IV;
620-623. The gist of the whole accusation seems to be the
following, however:

"That soon after his Lordship issued out writts for chusing
a new Assembly, and the Election was appointed to be upon
the same day in all places except the two most remote Counties

Kings County 2

Richmond County 2

Westchester County 2

Ulster County 2

City and County of Albany 2

Duke's County 2

Colony of Rensselaerswyck 1

"See Letter of Peter De La Noy, June, 1695, N. V. Col. Docs., IV. 221. 322. 323.
507, 511.

NEW YORK 107

whereby the best freeholders who had estates in several
Counties, were deprived of giving their votes at several
elections."

The question here raised was one which was a source of con-
tention in New York politics for many years.

Attention has been called to the political situation in the
province at the time of the coming of Lord Bellomont in order
to provide a background for a proper understanding of some of
the acts passed under his administration and that of his
successor. While the records are not definite on the subject
the assembly of 1698 was probably chosen after Belloment's
arrival and under writs issued by him. No act of this as-
sembly concerns this study. But on May 19th, Bellomont
addressed the council and assembly and among other things
called their attention to the abuses which had developed in the
election of members and promised his approval of a law to
remedy them.^^

A new assembly was chosen in 1699 and it proved to be a
most bitterly contested election. William Nicoll was the
Jacobite leader and he rode all over the state urging the
people that now was the time to withhold the royal revenue.
The result of the election, however, gave the Leislerians
sixteen members out of twenty-one. Acting either on the
governor's suggestion or because of their own desire to
remedy conditions the assembly passed an act entitled:

"A bill for ye Regulateing Elections of Representatives in
General Assembly in each Respective Citty and County within
this province.

". . . Bee it Enacted by his Excel ye Gov'r and Councill
and Representatives Convened in Generall Assembly And
it is hereby Enacted by ye Authority of ye Same yt ye Repre-
sentatives of ye Cittyes and Countyes to be Chosen within
this province to come to ye Assembly of our Lord ye King in
this province hereafter to be holden shall be chosen in every
Citty and County and manner of this province who have
right to Choose by people dwelling and resident in ye Same
Cittyes Countyes and mannors whereof every one of them
shall have Land or Tenem'ents Improved to ye value of

"Council Journal, I, 112.

108 NEW YORK

fforty pounds in free hold free from all Incumbrances and
have possessed ye Same three months before ye test of ye said
writt and they which Shall be Chosen shall be Dwelhng and
Resident w'thin ye Cittys Countys and Mannors. . . ." ^'

We shall find later that at their first opportunity the
Jacobite faction repealed the above but it seems quite clear
that the reason of their opposition had nothing primarily to
do with the question of a residential qualification except as
that question was inextricably mixed with the one of a
residential qualification for electors. The reasons why the
wealthy, propertyholding class objected to the latter re-
striction are quite evident in the light of the sentence quoted
above in their accusation against Lord Bellomont.

The law of 1699 evidently did not end all irregularities
connected with elections, for in October, 1701, the assembly
passed an act the title of which read

"An Act for the more regular preceedings in the Elections
of Representatives for the Severall Cities and Counties within
this Province." ^*

This law does not mention qualifications for representatives
but deals with denying the suffrage to Catholics; making
more explicit the definition of freehold; and providing for
what might be called technical non-residence voting, inasmuch
as for seven years

"the freeholders of Dutchess County shall and are
hereby Impowered to give their votes for Representatives in
the County of Ulster, as if they actually lived in said County."

On May 1, 1702, this same assembly, two days before its
dissolution, passed another election law increasing the total
number of representatives; increasing the representation of
some towns; giving the right of representation to several
new counties; and providing for temporary non-residence
representation for certain specified places. This portion of
the act reads:

•• N. V. Col. Laws, I, 405. In the Journal of the Assembly the proceedings from
April 25, 1699, to October 29, 1700, are missing, so we do not know the arguments advanced
for and against this measure.

•' N. V. Col. Laws, I, 452.

NEW YORK 109

", . . And be it further enacted by the authority afore-
said that the Town of Schnectady, Nistigionne and half Moon,
and the Town of Kinderhook and all that part of the Colony
of Renslaerwyck shall and may Elect any Sufficient ffreeholder
of the City and County of Albany^^ to represent either of the
said Towns if they so think fit any Law, usage or Custom to
the Contrary hereof in any wayes notwithstanding."^^

Lord Bellomont died in March, 1701, and at the time of his
death John Nanfan, the lieutenant governor, was in Barbadoes.
The anti-Leislerians at once began their campaign and there
was great turmoil in the province from March to June. The
assembly chosen was Leislerian however.

Late in 1701 news of Lord Cornbury's appointment as
governor reached the province and caused great joy to the
Jacobite faction. Nicholas Bayard became especially violent
in seeking to upset the work of Bellomont, and as a result was
condemned to death under an act which he had been in-
strumental in passing ten years before to expedite Leisler's
conviction. The sentence against Bayard was never carried
out, as he was allowed an appeal to England. In May Lord
Cornbury arrived and promptly aligned himself with the
aristocratic party. The assembly which was now elected
under writs of the new governor was strongly anti-Leislerian.^^
On November 27th, it passed a law specifically repealing the
election law of 1699. This act also contained a provision
repealing all laws

. . . "made, pronounced, published or Promulgated . . .
since the first day of August, 1701." ^^

To fully and thoroughly complete the task one provision was:

"And that the Memory of these pretended Act and Acts
of General Assembly may be wholly Obliterated, Deleted and
buried in perpetual Oblivion." ^^

The Election Act of 1699 was approved by the King, Septem-

" The places mentioned were all in Albany County.

»• N. Y. Col. Laws, I. 479.

" The change in the political complexion of an assembly to correspond with that of
the governor raises grave doubts concerning the fairness of the elections. The sheriffs
were a great power and the New York records are full of instances of sheriffs being charged
with corrupt practices in connection with elections.

" N. Y. Col. Laws., I, 524. »• Ibid.. I. 524.

no NEW YORK

ber 5, nOO,'*" but the one of 1702 was disallowed by Queen
Anne in June, 1708,^^ leaving the former one in force.

As the question of residence as a qualification for repre-
sentation does not appear in any act of the assembly again
until 1769, let us see what was the practice of the people in
this regard. Prior to legislation on the subject the only in-
stance of non-residence representation discovered by a careful
checking of the lists was in the very assembly which first
passed a law touching the matter. Abraham Governeur, a
son-in-law of Leisler and a resident of New York City, repre-
sented Orange and Kings counties in the assembly of 1699,
but appears as a representative for New York in the assemblies
of 1701 and 1702.''2

When the assembly of August, 1701, met the seats of two
members were challenged on the ground of non-residence
under the law of 1699. William Nicoll had been returned for
Suffolk County but was dismissed under the above act. None
of the colonial records give us exact data as to Nicholl's
residence. Everything points to New York City however.
Nevertheless, he later represented Suffolk County continuously
from 1702 to 1710,^^ and if he were not a resident the fact that
his seat was not challenged after 1701 can only be accounted
for by the fact that during that time his faction controlled
the assembly.

The other member whose seat was challenged under the
act of 1699 was Dirk Wessels, who had been returned by City
and County of Albany. He was a merchant of Albany but
lived part of each year on his farm in Livingston Manor.^*
He had laready represented Albany continuously from 1691
to 1695,^* and was an alderman there in 1700.^^ He must have
had some doubt, however, whether he could qualify under
the act of 1699, for during the investigation of his case the
following curious document was read into the record :

" N. Y. Col. Docs.. V, 25.

" N. Y. Col. Laws, I, 523. The Queen took this action on the recommendation of the
Lords of Trade.

" Assembly Journal, L 93, 139.

" Ibid., I, 144, 195, 219, 239, 271. " Assembly Journal, I, 1,31, 35, 54.

"Schuyler. II. 331. " N. Y. Col. Docs.. IV. 727.

NEW YORK HI

"Know all Men by these Presents, That I Dirck Wessels,
of the City of Albany, of the Province of New York, am
holden and firmly bound, unto Jonathan Broadhurst, Esq.;
High Sheriff of the City and County of Albany aforesaid;
in the penal sum of One Hundred Pounds, Lawful Money of
this Province, to be paid to the said Jonathan Broadhurst,
his Heirs, Executors, Administrators or Assigns; for the
which Payment, well and truly to be made, I do bind myself,
my Heirs . . . firmly by these Presents, sealed with my
Seal, dated this 14th Day of July, in the 13th Year of his
Majesty's Reign, Anno Domini, 1701.

"The Condition of this Obligation is such. That whereas,
'tis required by a late Act of Assembly of this Province, en-
titled, An Act for the regulating of Elections, etc.. That all
Persons chosen to serve as Representatives, in the Assembly
of this Province, shall be dwelling and resident within the
same Cities, Counties and Manors, for which they are
chosen; and whereas, Major Dirck Wessels above named,
expects to be put up for a Candidate, in the Election of
Representatives for the City and County of Albany; now if
the said Dirck Wessels, his Heirs . . . , do idemnify the
said Jonathan Broadhurst, his Heirs . . . , from all Pain
and Forfeiture, which he may any ways incur by returning the
said Dirck Wessels, (if he be chosen) a Representative as
aforesaid, in Respect of his the said Dirck Wessels, being a
Non-Resident as aforesaid; then this present Obligation be
void and of none Effect, otherwise to remain in full Force and
Virtue.

Sealed and Delivered in the Dirck Wessels, (Seal).

Presence of •'^

Jacob Turck.
S. Clowes.

The sheriff was called before the assembly to produce the poll
book but he was not reprimanded for entering into such a
bargain with a candidate. The intensity of partisan feeling
in the assembly of 1701 is shown by the fact that when
NicoU and Wessels were ordered to withdraw on August 20,
eight other members went with them. The eight, not having
returned by the twenty-sixth, were expelled and writs issued
for elections to fill their places.^^

" Assembly Journal, I. 116. "Ibid., I, 116, 118.

112 NEW YORK

The next instance we find of non-residence representation
was in 1722 when Adolphus Philipse, a resident and merchant
of New York City, was the representative for Westchester
County, where he had large holdings. His seat was not
challenged. For several years following the above date he
represented his own city.*^

On November 10, 1743, John Yelverton, of Orange
County, presented a petition^'' calling the attention of the
assembly to the election law of 1699. The petition in part
follows :

"That contrary to the Intent and Meaning of the aforesaid
Act, Theodorus Snediker, Esq.; High Sherifif of Orange
County, hath lately returned Mr. Gabriel Ludlow, as duly
elected a Representative to serve in the present General
Assembly, for the said County of Orange, although the said
Gabriel Ludlow, then was, and still is dwelling and resident
in the city of New York, and not in the County of Orange, and
refused to return your Petitioner as duly elected, although he
well knew that your Petitioner . . had the greatest

number of votes of any Persons within the same County."

Despite the above Ludlow was declared duly elected and
was seated. Immediately thereafter. Colonel Lewis Morris,
who was later to figure in a similar case, moved for leave to
bring in a bill regulating the election of representatives.
Leave was granted but the final action on it shown by the
records was the postponement of its consideration until the
next assembly.^^ It does not seem to have been presented at
that time, so we do not know what Morris had in mind except
as it is revealed in a statement of his in connection with a
similar case two years later.

In 1745 Edward Holland, of New York City, petitioned the
assembly against the seating of Captain Arent Brandt, from
Schenectady, claiming the seat himself.^^ The assembly
held long hearings on this petition. Counsel for Brandt
argued that as Holland was not an inhabitant (note that he

"N. Y. Col. Does., VI, 56. •■ Ibid., II, 4, 7.

"Assembly Journal, II, 3. "Ibid., II, 65.

NEW YORK 113

did not use the word resident) of Schenectady, he was not
qualified to represent it. One member urged the postpone-
ment of any decision on the question till the next session on
the ground that matters involved were of such moment that the

"Consequences, greatly endanger the Liberties and
Properties of our Constituents, and even afTect our very
Constitution. . . "■' ^'^

Colonel Lewis Morris moved that the matter be placed in
the hands of judges of the Supreme Court on the ground that

. A mistaken Resolution of this House, may en-
danger every Thing that is dear and valuable, and even
shake the very Foundation of that Right, by which we sit
here." ">*

The Morris motion was defeated and the assembly's decision
was that under the laws of the colony Holland was not en-
titled to represent Schenectady. The fact that Morris should
move that a decision be obtained from the highest provincial
court on a given situation apparently plainly covered by
colonial statute shows clearly that a certain group of men in
the province felt that there was a distinction between legal
and actual residence.

The next election law and also the next contested election
which hinged on the question of residence both come in the
year 1769; but before we take them up let us look just for a
moment at some phases of legislative development during the
first seventy years of the eighteenth century. It had been one
long period of contests between the assembly and the royal
governors. While the assembly was often torn by factions yet
on matters of vital importance they would usually unite
against a governor. The chief items of contention were, of
course, revenue bills which the assembly asserted time and
again should be granted annually instead of for a long period
of time.

"Assembly Journal, II, 78. ** Ibid., II, 79.

114 NEW YORK

One of the chief complaints of the assembly was the fre-
quent prorogations and dissolutions by the governor when he
had a refractory assembly, and on the other hand of the length
of time he would keep an assembly, which had proved pliable
and friendly, in existence. For example, the assembly of
October, 1715, was dissolved August 10, 1726, having been in
existence eleven years. The one of July, 1728, lasted nine
years, being dissolved in 1737.

Attempts were made from time to time to remedy this
condition. A Triennial Act was considered in 1728, but as
the council opposed it, it was dropped.^^ A similar act was
passed in 1737, which this time received the approval of the
counciF^ but was adversely reported by the Board of Trade
and vetoed by the Crown." In connection with the latter
Lieutenant-Governor Clarke wrote the Board of Trade
stating that the chief argument for such a bill was that the
province was shunned by immigrants in favor of the corporate
colonies and proprietory provinces where the assemblies were
frequently chosen.^^ Finally, in 1743 a Septennial Act^^
was passed which received royal approval and which remained
in force well into the nineteenth century.

The Election Act of 1769 evidently grew out of two con-
tested elections of that year or more probably out of one in
Westchester where the election had been decided by non-
resident electors. On April 12, 1769, John Thomas, of
Westchester, presented the following motion:

"I find by an act passed by the general assembly of the
Colony of New York the 8th of May, 1699, it is among other
things enacted, for regulating elections in the colony, that no
non-resident should have a right to a seat in the House of the
Assembly. I find that Mr. Philip Livingston is returned for
the manor of Livingston, in the county of Albany; I move for
the aforesaid reasons, his not being a resident, according to
the Act of the Assembly, that he may be dismissed from his.
attendance of this house." ^°

" N. V. Col. Docs.. V, 874. " N. Y. Col. Docs.. VI. 136.

"Council Journal. I. 70S. "Ibid. VI. 112-113.

"Assembly Journal. II, 10; Council Journal. II, 2026.
••Assembly Journal (1766-1776). 24.

NEW YORK 115

It may be of interest to note the names of thofee voting to
dismiss the above motion: Ten Broeck, Morris, Ten Eyck,
Schuyler, Mynderse, CHnton, De Witt, Van Cortland . . .
almost the solid New York and Albany delegations and every
one great land owners.

Consideration of the motion was postponed from time to
time but was finally taken up on May twelfth, on which date
a long petition was presented by the freeholders of Livingston.
As this covers the whole question at issue from all its various
angles, the best of any document appearing in the provincial
papers of New York, it is given in full :

"The petition of the subscribers, being freeholders of the
Manor of Livingston, in the County of Albany,

Humbly Sheweth,
That your petitioners, in virtue of His Majesty's writ for
electing a representative for representing the said manor,
in the then next, and now present, General Assembly, lately
directed to the returning officer from the said manor, did
unanimously elect Philip Livingston, Esq., to serve in this
present Assembly, as their representative, who was accordingly
returned, and admitted to his seat in this honorable house.

"That your petitioners have since been informed that a
motion was made . . . for dismissing the said Philip
Livingston ... as not qualified according to an Act of
Assembly . . . said to have passed on the eighth of May,
1769. ...

"That your petitioners knew of no other act of this colony,
respecting the residence of persons to be elected to serve in
General Assembly, than a certain act passed the eighth day
of May, in the year 1699 . . . which your petitioners
humbly conceive neither ought, nor was, intended to deprive
them of their right to be represented in this honorable house,
by any representative, otherwise legally qualified, though not
actually residing in the said manor, for the following reasons:

"First; Because the words in the said act relative to the
residence of the persons to be chosen, are the same with those
in the act of Parliament, passed in the eighth year of King
Henry the Sixth, and your petitioners beg leave to observe,
that, notwithstanding the said act of parliament, it is notorious
that the electors in the several counties, cities and borough in
England have constantly chosen, and been represented by
persons not actually residing in the same. From which your

116 NEW YORK

petitioners conclude, that the construction put upon those
words by the ParHament of Great Britain, clearly shows, that
the intention of the said act of parliament was not to exclude
non-resident members from their seats in parliament, but to
exempt them from the burden of serving for places where they
do not reside, and to which the common law would compel
them, were they not thus exempted, and is evidently in favor
of your petitioners being represented by persons not actually
residing in the said manor who do not except to the service.

"Secondly — Because, except in three instances (excluding
at present the case of the said manor) it has been the invariable
usage of the General Assemblies of this Colony, to admit
representatives to represent the several counties in this colony
who did not actually reside within the same, of which your
petitioners find upon the journals of the house, twenty-one
examples; and with respect to the said three instances, which
were the cases of William Nicoll and Dirck Wessels, in the
year 1701, and of Edward Holland, in 1745; your petitioners
doubt not they will appear from the said Journals, to have
originated from party spite, expecially, as in the year 1743,
Mr. Gabriel Ludlow, was admitted by the then General
Assembly, on a controverted election, a representative for
Orange County, though he then resided in the citv of New
York.

"Thirdly — because the said manor of Livingston, in
particular, except only in three instances, has been constantly
represented in General Assembly, for the course of fifty-three
years, by persons not actually residing within the same,
which your petitioners find to have been the case in eleven
different assemblies.

"Fourthly — Because the words in said act of Assembly
pretended to require the actual residence of the person
elected, are the same with those respecting the residence of
the electors; and your petitioners do not remember that it was
ever doubted that the elector, if duly qualified, with respect
to his freehold, to vote for a Representative in General
Assembly, was also qualified to vote, without actually residing
in the county in which his freehold lies, from which they con-
ceive it evident, that a freeholder may also be elected, and is
duly qualified to serve, notwithstanding his not actually
residing; and the same Philip Livingston, being a freeholder
in the said manor, your petitioners conceive his right to serve
as a representative for the same, cannot be called in question,
without at the same time impeaching the right of every non-

NEW YORK 117

resident freeholder to choose a representative for the county,
in which he has a freehold.

"Fifthly — Because your petitioners are advised, that in
construction of law, and by solemn adjudications in the
courts of justice, every person does reside in the county,
manor or borough, in which he is a freeholder.

"Sixthly — Because the contrary construction would re-
duce great numbers of the inhabitants of this colony to the
grievous and unconstitutional hardship of being taxed for
estates which are not nor can be represented, and introduce
the pernicious doctrine of a virtual representation, invented
by the enemies of America, and manifestly tending to the sub-
version of that most invaluable privilege of not being taxed
without our own consent.

"Seventhly — Because by the first section of the above
mentioned act for regulating elections, it is among other
things enacted, that the place where the freehold of the
elector lies, shall be set down by the clerks of the poll, and no
notice is required to be taken of the place of his residence,
whence your petitioners infer that the actual residence of the
elector is not by the said act, intended as any part of his
qualifications to choose, and as by the first section of said act
the words dwelling and resident are applied both to the electors
and elected and must, as before observed, be understood in the
same sense, your petitioners think it plainly follows, than at
actual residence cannot, in the sense of the act, be a necessary
qualification for the elected nor requisite to entitle him to a
seat in this honorable house. And this construction, your
petitioners conceive, farther corroborated by the oath pre-
scribed by the same act, which only respects the elector's
freehold, without taking any notice of his residence And,

"Lastly — Because the legislature have in the tenth
section of the said act, clearly distinguished between a legal
and actual residence, by enacting that the freemen of the
cities of New York and Albany, who have actually dwelt in
the said cities respectively, three months before the tests of
the writs of election, shall have liberty to vote in their re-
spective corporation.

"For all which reasons, your petitioners pray this honor-
able house, to reject the said motion, as contrary to the true
sense and spirit of the said act of assembly, the usage of
parliament, and the general course of proceedings in assembly.
Manor of Livingston, April 18, 1769." "^

"Assembly Journal (1766-1776), 59.

118 NEW YORK

After the reading of this petition the motion to dismiss
Livingston was carried. Those voting in the negative were
practically the same as the list given above. Livingston was
a New York merchant.^^

The session of April, 1769, to May, 1770, was marked by
another contest. On the second day of the session, a petition
from certain inhabitants of Westchester was persented asking
for the seating of John De Lancey in place of Lewis Morris,
who was not a resident, according to the petition. A week
later when the matter was up again Representative De Witt
made this speech :

"As it is essential to civil liberty, that no tax be levied
that is not the free gift of the people, and the distresses into
which these colonies have, for several years past, been plunged,
flow from the pernicious doctrine of a virtual representation,
and it is the indispensible duty of this house to discountenance
it to the utmost of their power; and since the exclusion of a
member holding a freehold in the county or place for which he
is returned, from having a seat in this house, on account
of his non-residence there, may draw into question the rights
of electors to the choice of representatives, in places where
they do not reside, and the taxation of the estates of such
persons, will consequently strongly imply the approbation
of this house, of the odious and dangerous principle assumed
by the enemies of the colonies, and the prosperity of the
whole empire." ^'^

Counsel for Morris and De Lancey presented their argu-
ments before the house on April 15. The former contended
that the act of 1699 did not apply to Westchester but gave no
reasons in support of his argument. If it did apply, he con-
tinued, Morris had a right to his seat as he had

. "a considerable estate within the said borough."

Final action came on April 20, when it was decided that Morris
did not have such a residence in Westchester as qualified him
to represent it and his dismissal was ordered.^* This decision
did not stop the proceeding, however, regarding the con-
tested election. On April 26, it was announced to the House

"Schuyler, I, 280. "Assembly Journal (1766-1776), 27, 28.

"Ibid., (1766-1776), 6, 8, 22, 26, 28, 30, 36, 37, 38, 42, 51. 68, 75. 77.

NEW YORK 119

that the two contestants had agreed that fourteen non-
resident electors had voted for De Lancey, and three for
Morris/* and that if the House decided that non-resident
electors had no right to vote De Lancey would drop the con-
test and give Morris the seat. The House decided that non-
resident electors had the right to vote for representatives.®^
De Lancey then asked the privilege of introducing the follow-
ing bill:

"An Act to explain and amend an Act entitled 'An Act
for Regulating Elections of Representatives in General
Assembly' made and passed the eighth of May one thousand
six hundred and ninety nine, in the eleventh Year of King
William the third." "

The first part of the act is taken up with the question
whether a person having a freehold in a certain county or
town should be allowed to vote there though a non-resident.
The law gave such persons that privilege provided that in
other respects they qualified as electors. On the subject with
which this study deals the act provided:

"And Whereas it is highly necessary that the Representa-
tives Chosen to serve in General Assembly should not only
have improved Landed Estates amongst their Constituents
but ought also to be inhabitants and actual residents among
them to the end that they might be perfectly acquainted with
the true state and Circumstances of the People they are to
represent, to prevent therefore the many inconveniences that
may arise by choosing Non-Residents to serve in the General
Assembly.

"Be It Further Enacted by the Authority aforesaid that
no Person shall hereafter be capable of being elected a Repre-
sentative to serve for any City, County, Town, Borough or
Manor in this or any future Assembly, unless his usual Place
of abode shall be in such place for which he shall be so elected,
and has been so for six months at least before the Test of the
Writ of Summons, and unless he shall have possessed a
sufficient Freehold Six Months before the Test of the Writ of

" Non-resident electors voted for a resident.

" While the Morris-DeLancey contest was on Colonel Schuyler asked for the ap-
pointment of a committee to investigate the whole question of non-residence representa-
tation giving the names of men, towns, counties, dates and time of representation. This
was not acted upon.

•' N. Y. Col. Laws, IV, 1094.

120 NEW YORK

Summons, free from all incumbrances whatsoever, situate and
being in the City, County, Town, Borough or Manor for which
he shall be so elected." •"•*

The use of the phrase "usual place of abode" in the above
instead of the word "resident" or "residing" was doubtless an
attempt to get around the double meaning of "resident"
which was then common in English political practice and
which could be brought to the fore whenever a wealthy New
York or Albany man wished to be elected from a county in
which he had an estate.

This law received the approval of governor and council.
When it came before the council it received only one dis-
senting vote, that of William Smith, Jr. His reasons were:

"Because incapacitating non Residents from representing
their Electors is an alteration of the Election Act of 1699
(the first section of which is nearly similar to the Statute of
the 8th of H. VI., Cap. 7) is repugnant to the constant usage
of Parliament, and the general practice of the Assembly for
near seventy years past, abridges the Right of Electors in all
the Counties, and may be very prejudicial to the City and
County of New York in particular, where it is for many
reasons most probable the greater number of non Resident
Members would reside; and is the more unreasonable with
respect to the City since this Capital sends only four out of
twenty seven Members, tho' it bears one third part of the
Burden in all Publick Levies." '^^

On May 26, 1769, Governor Moore wrote to the Earl of
Hillsborough regarding four bills out of the twenty passed at
the session of 1769 and to which he had given his assent.
Referring to the election act he said :

"Altho' the title of this Act sets forth, that it was in-
tended to explain and amend an Act passed so long ago as the
year 1699, I believe it will appear to your LordP and to every
unprejudiced person, that the Law in question, did not
require any real explanation, or that any doubts could pos-
sibly arise concerning the meaning of it, as it is expressly
declared therein, that all persons chosen representatives in
the General Assembly, as well as the Electors themselves.

" N. V. Col. Laws, IV. 1095. »• Journal of the Legislative Council. II, 1706.

NEW YORK 121

shall be resident in the Cities, Counties and Manors, where
such election is made. The present Law declares that the
Representatives must be Resident, but that the Electors are
not obliged to be so, and gives an explanation of the Act
repugnant both, to Reason and Justice, as these persons
whose usual residence is in this City, and are in general best
qualified for representatives in the House of Assembly, are
precluded from being chosen in any County or Borough,
notwithstanding they may have a considerable Estate there. "^"

Despite the governor's opinion of this measure he ap-
proved it. The balance of his letter is an explanation why he
did so, and gives us an insight into the influences which
actuated the royal governors in many of their contests with
the colonial legislatures. The disapproval of the election act
of 1769 by the crown in June, 1770, left the province under
the act of 1699.

Only one more contest hinging on the question of residence
occurred before the adoption of the first state constitution.
In 1772 John De Lancey was returned for Westchester and
his seat was challenged on the ground that he was a non-
resident. While the question was up De Lancey himself
moved :

"That before the house come to a determination on this
matter, that they resolve that no person is capable of being
elected a representative to serve for any city, county, town,
borough or manor, in this or any future general assembly,
unless he be an actual resident, and shall continue to reside
in such place for which he shall be so elected, and hath re-
sided at least six months before the test of writ and sum-
mons." ''^

This motion was passed but there is no record of its ever being
sent to the council or the governor for approval. The vote on
De Lancey's right to his seat was then taken and he was dis-
missed as a non-resident. This action is hard to understand
in the light of the Morris-De Lancey controversy of just three
years previous in which Morris was dismissed from the
assembly for non-residence and De Lancey was given his place.

'«N. Y. Col. Docs.. VIII, 167. " Assembly Journal (1766-1776). 17.

122 NEW YORK

De Lancey had received an English military education and
later fought with the English in the Revolutionary War,"
so it is possible that his dismissal grew really out of dislike for
his political convictions.

This brings us to the end of the colonial period, the point at
which, or before which, our study of each colony generally
ends, for by that time most of them had a definite and well
recognized residential qualification for representatives. As
we have seen. New York had a law on that subject dating back
to 1699, but we have also seen that the electors had put a
construction on the word "residence" which practically
nullified the law.

So we might say that when New York adopted its first
constitution it had no residential qualification for repre-
sentatives as that qualification was generally understood.
In order that our study may be complete we will examine
briefly the question of residence as related to representation
from the first constitution of 1777 until the rejected one of
1915.

The Constitution of 1777 was hastily adopted (March 12-
April 22)." It was not voted on by the people. It is said
that the convention was dominated by the landowning and
conservative classes. John Jay was perhaps its ablest mem-
ber. An attempt was made to insert a residential qualifica-
tion for representatives. Draft A of one section under the
general heading (Assembly Districts) read :

". . . That all Elections for Representatives in general
Assembly be made in every district annually by ballot in
such mode as the Legislature may prescribe. That every
district chuse one person to represent the County out of the
Freeholders who shall actually and in fact reside within such
district." '"

No such provision was included in Draft B nor in the final
draft. This constitution made provision for a senate to take
the place of the legislative council. An attempt was made to
limit the senators to residence in their districts.

" Shonnard-Spooner, History of Westchester County, 266.
"Alexander, I; Chap. II. "Lincoln, I, 505.

NEW YORK 123

"And this convention do ordain that no freeholder shall
be eligible to the office of senator in any other of the great
districts than the one in which he shall usuall and in Fact
reside. . . ."

This, like the similar provision for representatives, was not
included in the final draft.

The question of residence as a qualification for repre-
sentatives was apparently never raised in the constitutional
conventions of 1801''^ and 1821. The constitution of 1821 did
establish a residential qualification for electors however. All
property qualifications for electors were removed by an
amendment in 1826,^^ while property qualifications for certain
office holders were not removed until 1845 by amendment.

In the convention which drafted the constitution of 1846
there was long and earnest debate over the proper method of
dividing counties into assembly districts. Rhoades, of
Onondaga, proposed that

. . . "members of assembly may be chosen from any portion
of the county in which such districts are situated, but shall be
resident of the county."

He admitted that at the time while there was no law on the
subject the custom of not going outside the county had
acquired the force of law. Nicholas, of Ontario, said that,

"If the Constitution sanctions the selection of candidates
out of the districts where they are to be voted for, it must
defeat the principle objects of the single district system, which
are to prevent political combinations in large counties, and to
bring the candidate and his constituents nearer together, so
that candidates may be generally known within their dis-
trict."

The Rhoades proposition was defeated. The reason for
the refusal of the convention to act upon it is not evident but
the probability is that the situation was as follows: Men
were usually chosen from their districts; the refusal to
establish a definite rule on the subject was not to continue the

" To this convention Aaron Burr of New York City was chosen a delegate by Orange
County. (Lincoln, II. 132.)
'•Lincoln, II, 7.

124 NEW YORK

privilege of non-residence representation but because the
convention felt that custom was strong enough to regulate
the matter.

The constitution framed by the convention of 1867 was
not ratified by the people at the polls. Although it never
came into effect it contained one section bearing on this
subject. As finally submitted to the people Section I, Article
III, read:

"The legislative power shall be vested in a senate and
assembly. Any elector shall be eligible to the office of senator
and member of the assembly."

Edwin A. Merritt, who proposed the last sentence of the
section, gave as his reason that he wished to make clear that
any elector was eligible to be elected to the offices mentioned
in any part of the state.

The Constitutional Convention of 1872 proposed several
amendments to the existing constitution of the state which,
after being slightly altered by the legislature, were ratified in
November, 1874. One of the amendments changed Article III,
Section I, which was the section on "Legislative Power".
The convention considered the subject of qualifications for
assemblymen and senators including propositions that no
person should be eligible except an elector, a male citizen,
and a citizen of the United States; and that he should have
attained a certain age. The question of a residential qualifica-
tion was not considered. None of the above proposals was
adopted, and the article finally submitted to the voters con-
tained no qualifications whatsoever for either office.

The Constitutional Convention of 1894 drafted the
constitution which is now in force except as it has since been
amended. Article III, Section III, of this provides for sena-
torial districts and Section V for assembly districts. Neither
article contains a requirement that a senator or assemblyman
shall live in his district.

New York stands practically alone among the states of the
Union in the lack of a residential qualification for both
senators and representatives. The status of the matter at

NEW YORK 125

present is exactly that found in an opinion of the attorney
general of the state growing out of a contested election case
in 1858.

In that year James Dolan contested the seat of John G.
Seeley, elected from the fourth Assembly District in New
York City, on the ground that Seeley was a non-resident.
While the committee was taking testimony on the question
as to the fact of residence or non-residence, the assembly
asked Attorney-General Lyman Tremain for an opinion on
the subject of residence as a qualification for representatives.
In the meantime the committee had decided that Seeley was
a resident of his district as the term was used

. . . "in all statutes upon the subject of elections and
qualifications of voters." ^"

A minority report was brought in in the Seeley-Dolan contest
which declared that three years prior to the election Seeley
had moved his family to Washington County and that their
permanent home had been there since. The report continues:

"Now the structure of our republican form of government
or system depends, . . . upon the representations of
certain portions of the State, by persons identified with the
interests of such portions; and for this reason, the Constitu-
tion has apportioned the entire State into districts, giving to
each its proper delegate, in order that through such delegate,
the local wants and rights of the district should be properly
represented in the State Legislature. If it had been of no
importance that each district should be thus separately and
peculiarly represented by its own local citizens, then the
Legislature might as well be elected upon a State ticket, and
the members taken indiscriminately from any and all sections,
and a merchant doing business in New York, may be chosen
to represent the farming interests of Washington County, or
the fishing interests on our lake shores." ''*

Because of the decision of the committee regarding Seeley's
residence the attorney general's opinion did not affect the
decision of the assembly on seating Seeley. But since, as we

" Assembly Documents 1858, Vol. IV.. No. 95. Testimony of witnesses as to Seeley's
residence can be found in Assembly Documents, 1858, Vol. IV, No. 101.
'•Assembly Documents, 1858, Vol. IV, No. 97.

126 NEW YORK

have already stated, the present status of the question under
consideration is covered by this opinion, just as though it had
been delivered this year we will close our study of New York
with it.

"A disqualification to hold any particular office should be
expressed, in explicit terms, either in the constitution or laws
of the State, or follow by necessary implication for what is
declared. Whenever residence in the locality from which the
officer to be elected is chosen is essential, it is usually de-
clared to be a necessary qualification in unequivocal language;
thus, we have a statute providing that no person shall be
eligible to any town office unless he shall be an elector of the
town for which he shall be chosen. This provision, of course,
renders it necessary that he should be a resident of the town
at the time of his election.

"In cases of sherififs, clerks of counties, district attorneys,
judges of county courts, recorders of cities, and other officers
particularly named in the statute, they are required to reside
within the cities or counties for which they shall be respectively
appointed or elected.

"We have also a general statute declaring that no person
shall be capable of holding any civil office in the State, unless
at the time of his election, or appointment, he shall have at-
tained the age of twenty-one years, and shall be a citizen of
this state.

"It is further provided by general statute, that every
office shall become vacant whenever the incumbent shall
cease to be an inhabitant of the State. . . .

"The Constitution provides for the apportionment of the
members of Assembly among the different counties .
but seems to be entirely silent in reference to the qualifications
of such members in regard to residence or any other particular.
Nor is there any statute of the State that I have been able to
discover, providing . . . that the member of Assembly
shall reside within the district for which he shall be elected.

(In the next paragraph he refers to the fact without
mention of name that Martin Van Buren, a resident of Albany,
represented Orange County in the Constitutional Convention
of 1821.)

"The office of member of Assembly is not a local office,
but on the contrary the duties of the office may be discharged
beyond the limits of the district from v/hich the member is
chosen.

NEW YORK 127

"It is my opinion thiit there is nothing in the Constitution
or laws of this state which prohibits the people in any assembly
district from electing a member to represent them in the
assembly of this State, who resides in another Assembly
district, providing he is of age, a citizen of the state, and not
otherwise disqualified.

Lyman Tremain,

Attorney-General." ^^

So many elements have entered into this study of New
York that are different from those affecting the New England
States that it will be well to summarize them briefly.

The manorial tradition and the pernicious practice of the
granting of great patents by the governor were peculiar to
New York. As a result of this wealthy merchants and
traders soon came to hold great estates along the Hudson and
even back from the Hudson as the power of the Indians
gradually decreased. Then New York was a typical royal
province. It might be within the bounds of truth to say that
the king, formerly the proprietor, sought to make it the
model colony. Anyway, the similarity of its social, commercial,
and political life to that of England in contrast to that of the
corporate colonies of New England, is striking.

These two factors taken together give one the setting for
the study of a residential qualification for representatives.
The whole contest which has been given at length above was
between the large landowning class and the wealthy merchant
class, often one and the same, on the one hand, and the smaller
landholding freemen of the rural communities, on the other.
The former class held to the English belief and custom that
ownership carried with it residence; in other words that legal
residence and actual residence were two quite different terms,
yet one kind carried with it all the privileges of the other.
This view is set forth in full in the petition of the freehloders
of Livingston Manor, given on pages ILS-ll?.

The intent of the law on the subject is quite clear.
There certainly is no doubt that the Act of 1699 meant to
restrict the right of representation to actual inhabitants of a

"Assembly Documents, 1858, III, 54.

128 NEW YORK

manor, county, or borough. This act remained the law of the
province to the end of the colonial period yet it was con-
tinually violated just as in England during the same period,
no attention was being paid to the Act of 8 Henry VI, which
established a residential qualification for members of the
House of Commons. The petition of Livingston Manor
already referred to states that down to that date the journal
of the assembly showed twenty-one examples of non-residence
representatives. Futhermore, that their own manor, except
for three instances, had been represented for fifty-three years
by a non-resident. Yet we have found during the whole
eighteenth century only five cases of members of the assembly
being challenged and unseated because of non-residence.
On the other hand we had the example given above (Gabriel
Ludlow, 1743) of the assembly seating a man who was a non-
resident and whose seat was challenged by a resident.

It seems quite evident that every case of dismissal from
the assembly for non-residence was purely partisan action.
Whenever one faction wished to get rid of a particularly
obnoxious member of the opposite faction they could always
invoke the law of 1699 — given two things — first, a clear
majority of the assembly, and second, the intended victim
happening to be representing a community where he did not
reside. For example, of the five contested cases given two
of them were in 1701 and two in 1769, in both of which
assemblies partisan feeling ran high.

In the charter colonies we have found that the men
chosen as non-resident representatives were often holding
other high colonial office. There was not nearly so much of
this in New York, and the reason is, of course, that in the latter
province all such men were royal appointees. There was a
law passed quite early denying the right of a seat in the
assembly to a provincial officeholder. It was frequently
violated but almost never without protest.^"

•' In 1750 Colonel Lewis Morris sought to oust Peter DeLancey as a representative
from Westchester, as he was at the same time a judge of the Supreme Court. This at-
tempt was unsuccessful (N. Y. Col. Docs., II, 282). But in 1772 Robt. R. Livingston,
a judge of the Supreme Court, was refused a seat as the representative of Livingston
Manor. This happened again in 1774.

NEW YORK 129

In closing the study of New York let us note that the
division between New York City and the balance of the state
in the assembly, a division which is more marked than in
any other state of the union, is not of recent origin.

Every definite example of non-resident representation
which we have been able to find shows the non-resident to
have been a New York City merchant. In practically every
vote in the assembly on the question of non-resident voting
or non-resident representation we find the New York City
delegation voting solidly in favor of each. The attitude of
the prominent and politically powerful men of the city is
shown above (p. 120) in the reasons given by Councilor Smith
for his opposition to the election act introduced by De Lancey
in 1769. Evidently the city, or at least certain classes of the
city, felt that a resident of the city chosen to represent some
outlying county or borough where he owned property could
not forget the interests of the city where he actually resided
while representing the town, county, or manor where he
"legally" but not "actually" resided. And furthermore, that
every such representative made up for the disproportionate
representation which the city had considering the amount
it paid in taxes.

The situation at present is as we have shown, that New
York has no residential qualifications for its assemblymen or
senators. The custom that a man must actually live in the
district he represents, with the possible exception of the large
cities where the line between assembly districts does not stand
out with the prominence of a county boundary, in all prob-
ability controls the electors with all the force of law. The
absence of a definite statute is a fine example of the tenacity
with which a long established political tradition clings to and
molds our political expression and practice.

NEW JERSEY

The political history of New Jersey so far as this study is con-
cerned divides itself into four distinct parts.

(1) The period of union from the granting of the deed
of release by the Duke of York to Berkeley and Carteret in
1664, to the division of the province by the Quintipartite Deed
in 1676.

(2) The independent existence of East Jersey between
the above date and the incorporation of New Jersey with the
New York government in 1702.

(3) The independent existence of West Jersey for the
same period.

(4) The surrender of the province in 1702 by the pro-
prietors of both East and West Jersey and the inclusion of
the united province under the authority of the royal governor
of New York.

A reading of the colonial records of this province gives one
the impression that its political life was marked by greater
turmoil than that of perhaps any other colony or province.
If this be true it was undoubtedly due to three things.

First, the assumption of governmental authority by the
original proprietors, Berkeley and Carteret, and by their
assigns.

Secondly, the presence of so many Quakers in the province
and among the later proprietors. The effect of this situation
is easily seen when one remembers that during a large portion
of the colonial era matters of defence, so called, occupied to a
large degree the attention of colonial legislatures.

Thirdly, during the later provincial period the growing
contest between the proprietors and anti-proprietors as the
latter continually increased in number.

The whole character of early New Jersey history is de~
termined, as Osgood points out, by the fact that the con-
tinued assumption and exercise of political authority by
Berkeley and Carteret practically gave them possession of it,
although the right to exercise it was challenged from many
quarters.

130

NEW JERSEY 131

The fault of the whole matter seems to lie in English
officialdom. The deed of release' from the Duke of York to
Berkeley and Carteret in 1664 certainly gave them, on the
face of it, governmental powers. So did his deed of release of
July 29, 1674, granted after the reoccupation by the English;
for the wording was the same as in the earlier deed. This last
deed was given only to Carteret, for in the meantime Lord
John Berkeley had sold his half to John Fenwick in trust for
Edward Byllinge.'- This was the first of a number of divisions
and subdivisions which finally resulted in New Jersey having
what might be called a surplus of proprietors.

The duke's second deed to Carteret was given as stated
above on July 29, 1674, despite the fact that Andros had been
appointed governor of New York and New Jersey on July 1,
1674.^ Thus, within the same month two governmental
bodies had been established over the same territory. But
legally, it seems that the leases and releases of the Duke,
despite their plain wording, were nothing but deeds for land.
Under the English law, the Duke of York, or anyone else, could
not transfer governmental power to others; its only source
was the crown. It was this interpretation of the leases which
accounts for Andros' attempt to exercise political control over
the Jerseys. Another cause for political dissension within the
province was the circumstances attending the settlement of
the towns of the Monmouth patent.^

Acting under what they presumed was their right, Berkeley
and Carteret set up a government in their new province by the
promulgation of the Concessions and Agreements^ in 1665 and
by the appointment of Philip Carteret as governor and a
little later by the appointment of six councilors. The main
points of the "Concessions" were:

' Learning and Spicer, 8.

«N. J. Archives, I, 237, 326; XXI, 559. 'Ibid.. I, 156.

< The deed for this settlement had been given by Governor Nicolls and both deed
and settlement antedated 1664. The towns of this patent claimed to be an independent
jurisdiction. The first assembly in New Jersey was held here in 1667. Deputies were
present from Middletown, Shrewsbury and Portland Point (Highlands of Navesink).
The assembly was called "The General Assembly of the Patentees and Deputies". It
met for several years but exercised local functions only. See paper on Monmouth County
during Provincial Era by Hon. Joel Parker, 2 Proc. N. J. Hist. Soc, III.

• Learning and Spicer, 12-26.

132 NEW JERSEY

(1) Government of the province to be exercised by a
governor, council and general assembly.

(2) The general assembly to be composed of governor,
council and a representative body chosen as follows :

"That the inhabitants being freemen, — do as soon as
this our commission shall arrive — make choice of twelve
deputies or representatives from amongst themselves; who
being chosen are to join with the said Governor and Council
for the making of such laws, ordinances and constitution as
shall be necessary for the present good and welfare of the said
Province.

But as soon as parishes, divisions, tribes and other dis-
tinctions are made, that then the inhabitants or freeholders
of the several respective parishes, tribes, . . . do . . .
annually meet on the first day of January, and choose free-
holders for each respective division . . . to be the deputies
or representatives of the same which body of representatives
or the major part of them, shall with the Governor and Council
aforesaid, be the General Assembly of the Province." ^

(3) Assembly empowered to appoint times of its meetings
and adjournments.

(4) Empowered to enact all laws provided that they be
consonant to reason, agreeable to the laws and customs of
England and not against the interests of the proprietors.

(5) Laws to remain in force one year while under con-
sideration by the Proprietors.

(6) Assembly given power of taxation except over the lands
of the Proprietors before settling.

The first assembly held under the authority of the "Conces-
sions" of 1664 was in May, 1668. It met at Elizabethtown:
the following towns sent representatives: Bergen, Newark,
Elizabethtown, Woodbrdge, and the towns of the Monmouth
patent.

Another session was held in November at which appeared
two representatives from "Delaware River" in addition to
those who were present at the May session. The towns of
the Monmouth patent chose two representatives but in-
structed them not to take the oath unless it contained a
reservation recognizing the validity of Nicoll's land grants.''

•Learning and Spicer, 14-15.

' The towns explained the appearance of their representatives at the first session by
saying tlie men who pretended to represent them had no authority to do so but had been
chosen by some of their friends (Middletown Town Book).

NEW JERSEY 133

These representatives were not seated. Only a few laws were
passed by this assembly, none of which affects this study.
Assemblies also met in 1671 and 1672 but we have no record
of their proceedings. This brings us to the close of the first
period of united government. The division into East and West
Jersey became operative immediately after the English re-
occupation of 1674, although the official separation by the
Quintipartite Deed was not until two years later.

East Jersey

When Philip Carteret returned from England in 1674 as
governor of East Jersey, his instructions^ declared, among
other things, that the governor and council should have the
power of admitting freemen; that to governor and council
belonged the power of summoning and adjourning the as-
sembly; and that the general assembly should continue to sit
as two houses.^ This was a great strengthening of executive
power. Conditions in the province now became more settled
due in part to a letter from Charles the Second, commanding
all parties to yield obedience to the governor, and in part to
an opinion from England, signed by eight prominent lawyers,
unfavorable to the Nicoll's patentees.^"

From 1674 to 1680 Carteret was in a constant struggle
with Andros who was seeking to assert his authority over the
Jerseys. The latter so far succeeded that at one time he had
Governor Carteret arrested and taken to New York as a
prisoner. In the fall of 1680 a release was issued to the pro-
prietors of both Jerseys. This granted to them the free use of
all waters and all the

"powers, authorities, jurisdictions, governments,
and other matters and things whatsoever." "

This lease, like the ones which had gone before it, was invalid,

«N. J. Arch. I, 167-173.

» In a document dated 1672 signed by Carteret and Berkeley and which professed to
declare their "true intent and meaning in granting the concessions," provision was made
for the assembly to sit separately from the governor and council and giving the latter the
power of summoning and adjourning. Some inhabitants complained that this document
altered the concessions in important particulars. It did that very thing. Learning and
Spicer, 33, 34.

'» N. J. Arch., I, 154. " Ibid.. I. 324, 337.

134 NEW JERSEY

but it was recognized by Andros, and so for a time East Jersey-
had peace with its nearby neighbor on the east.

Just at this time East Jersey was sold at auction by the
trustees of Sir George Carteret to William Penn and eleven
associates. The number of proprietors, by later transfers,
was soon increased to twenty-four.

"No province except East Jersey, after the process of
settlement progressed so far, was subjected in this sudden
fashion to such a change of rulers." ^'-

With the change of ownership came a change in the theory of
provincial government, if not in actual practice. The new
plans show plainly the ideas of Penn and of his Quaker as-
sociates regarding the right of the individual to a free partici-
pation in the government under which he lived.

The Fundamental Constitutions^^ of 1683 were never put
into effect, but it is worth while to note the provisions of this.
The province was to be governed by a great council con-
sisting of the twenty-four proprietors and one hundred forty-
four representatives elected by the freemen of the province.

"The persons qualified to be freemen, that are capable
to choose and be chosen in the great Council, shall be every
planter and inhabitant dv/elling and residing within the
Province, who hath acquired rights to and is in possession of
fifty acres of ground and hath cultivated ten acres of it;
or in boroughs, who have a house and three acres; or have a
house and land only hired, if he can prove fifty pounds in
stock of his own." '"^

No serious attempt apparently was ever made to put this plan
in force. It may have been, and probably was, unwieldy.
Besides, the inhabitants had a system which was working and
under which each freeholder had a voice in the government.
During the period of independent existence there were nine
assemblies or at least nine sessions of the assembly.'^ The
acts of none of these affect the subject of this study until we
come to the session of 1698. In that year a law was passed
entitled

"Osgood, 11. 191. "Ibid., 155.

'• Learning and Spicer, 154, 155. "Ibid., 93-137; Mulford. 162-256.

NEW JERSEY 135

. . "An Act declaring What Persons are disabled from
being either elected or serving as Deputies, or Representa-
tives in General Assembly." ^^

The first part of this made it impossible for a member of the
council or a proxy or agent for a proprietor to be chosen as a
deputy or representative. Then the act continues:

"And be it further enacted by the authority aforesaid,
that no person chosen as deputy or representative, shall serve
for any other place, but that where he and his family re-
sides. . . ."

Another act of this same session was in fact a declaration
of the rights of the people of East Jersey. This act after
stating that the supreme legislative power of the province
rested in the governor, council

"and the people by their chosen representatives in
General Assembly"

provided further —

"That all the freeholders inhabiting in every of the re-
spective towns or divisions within this Province, shall an-
nually meet on the first Tuesday of January, and chuse free-
holders, inhabitting therein, to be the representatives of the
same for the ensuing year. And that there shall be a General
Assembly held every year within this Province to meet in the
last Thursday of May, by proclamation at Perth Am-
boy. . . ." 17

A later paragraph of the act apportioned the representatives
among the various towns and counties.

In the above we have a definite residential qualification for
representatives. Whether there had been much non-residence
representation during the preceding years it is impossible to
state. Not all of the lists of representatives are available and
in some cases where the names of members occur the towns
from which they came are not given. The fact that we find a
residential qualification appearing as early as 1698 is positive
proof that at the time of its adoption both proprietary and
royal authority were weak and almost inoperative in the

'• Learning and Spicer, 367. " Ibid.. 368, 371.

136 NEW JERSEY

province; in other words the province of East Jersey during
the latter part of its separate existence was practically inde-
pendent in all but name. The reason for the above statement
is the fact, as exemplified in later New Jersey history and in
New York, that whenever the proprietary or royal govern-
ment was strong and was being administered by alert and
capable men all efforts on the part of the people to have
their representatives chosen from a limited area where their
chief interests lay always met with opposition.

West Jersey

In taking up the study of this province we find in the
Concessions and Agreements of 1677^^ an elaborate plan of
government more democratic than that of the corporate
colonies of New England. Some students feel that this plan
rather than that set up in Pennsylvania reveals the political
ideas and ideals of Fox, Penn, and other leading Friends. The
full title of this plan of government was

. . . "The Concessions and Agreements of the Proprietors,
Freeholders and Inhabitants of the Province of West New
Jersey in America"

and it was signed by the proprietors and a large number of
freeholders and inhabitants on March 3, 1677. Chapters
XXXII to XL deal with the powers of the general assembly.
The first chapter referred to reads in part:^^

"That so soon as divisions or tribes, or other such like
distinctions are made; that then the inhabitants, freeholders,
and Proprietors, resident upon the said Province ... do
yearly and every year meet on the first day of October, . .
and choose one Proprietor or freeholder for each respective
propriety in the said Province (the said Province being to be
divided into one hundred proprieties) to be deputies, trustees
or representatives for the benefit, service and behoof of the
people of the said Province: which body of Deputies, trustees
or representatives, consisting of one hundred persons, chose
as aforesaid, shall be the general, free and supream assembly
of the said Province for the year ensuing and no longer."

"N. J. Arch., I. 241-270.
<'Ibid., I, 263.

NEW JERSEY 137

The assembly thus provided for was to be practically
absolute. In addition it was not to be chosen

"by the common and confused way of cry's and
voices, but by putting Balls into Balloting Boxes."

It should be noted that no particular power was reserved to
the proprietors except such as would come to them as in-
habitants and freeholders within the province.

As has been pointed out in connection with East Jersey
the years between the division of the province and 1681 were
years of contest with Andros, who was seeking to exercise
authority, and did to a limited extent, in both Jerseys. The
year 1681 as already stated, marks the date of the withdrawal
of claims on the part of the New York governor to interfere
in New Jersey affairs. That year marks the first assembly in
West Jersey. Most of its acts were in confirmation of pro-
visions of the Concessions. One act provided that there
should be an annual assembly
. . . "chosen by the free people of the Province." '"

It also provided that the assembly was not to be prorogued
without its consent and that the governor must confirm its
acts. The next year the assembly announced that it was its
judgment and that of those by whom they were chosen that the
. . . "most regular way of preserving liberty and property"
by a lawful free assembly was

. . . "that each ten proprieties, chuse their ten representa-
tives where they are peopled." '-'

This is ambiguously worded and is open to two possible
interpretations. It was not an act but simply a suggestion, it
seems to me, to the people of each propriety to choose residents
when electing representatives. Mulford" (p. 239) holds this
view and says the discussion which preceded it was over the
comparative advantages of direct and general elections.

The Assembly of 1683 provided for diflferent dates of
election in the different tenths.^^ Such an arrangement as

" Learning and Spicer, 423. '■' A Civil and Political History of New Jersey.

" Ibid., 443. " Learning and Spicer. 473.

138 NEW JERSEY

this was always for the convenience of the non-resident voter.
This same assembly provided that thereafter all civil officers
of the province, including governor and councilors, were to be
chosen by the assembly.

In 1686 the assembly gave each proprietor one proxy in
the assembly provided the proxy resided on the proprietor's
land. No further act appears which bears even indirectly on
this study, until in 1694 when the basis of election was changed
from tenths to counties. Representatives were apportioned
among the counties; electors were to be freeholders within
their respective counties and the qualifications for repre-
sentatives were that they be

. . . "good and sufficient men." -^

A later enactment required that they also be freeholders and
provided for a dilTerent election day in each county. ^^ In an
act of 1699 the counties were mentioned by name with the
number of representatives to which each was entitled. The
qualifications of electors was

. . . "all sufficient freeholders and no more." ''^

A law in 1701, however, went back to the former provision
found in the law of 1694. As the separate existence of West
Jersey come to a close the only reference we have found to a
residential qualification was in the suggestion made by the
assembly of 1682. As in the case of East Jersey it is impossible
to tell whether non-resident representation was practiced.
We have the names of the members of several assemblies but
not the names of the divisions from which they came. Three
things make it probable that there was little or no non-resi-
dence representation in West Jersey. These three things are:

(1) The absence of any large towns in the province.

(2) The Quaker belief in each individual's right to a
share in the government.

(3) The absence of proprietary pressure exerted politically
in order to safeguard proprietary authority.

" Mulford. 269. "Learning and Spicer, 533. ^» Ibid., 568.

NEW JERSEY 139

It is not within the province of this study to enter into the
factors bringing about the transfer of the proprietary govern-
ment in New Jersey to the crown. Suffice to say that the
negotiations continued for two or three years and when the
proprietors were satisfied that their property rights in the
province would be respected they surrendered their claim to
governmental power. The official Deed of Surrender^^ was
dated April 15, 1702. Thus was New Jersey added to the
growing list of royal provinces.

Efforts were at once made by each of the different factions
which had divided New Jersey to have one of its members
appointed governor. The Lords of Trade, very wisely,
advised that some one who had in nowise been connected with
the disorders in the province, be appointed. So Lord Corn-
bury, who had already been commissioned as royal governor
of New York, was also commissioned as the first royal governor
of New Jersey. This appointment of a joint governor for the
two provinces continued until 1738. Lord Cornbury's in-
structions,^^ dated November 16, 1702, confirming him as

. . . "Our Captain General and Governor, in Chief in and
over our Province of Nova-Caesarea, or New Jersey",

ordered that

"with all convenient speed, you call together one
General Assembly . . . ; and that the said General
Assembly do sit in the first place at Perth Amboy, in East
New Jersey, and afterward the same, or other the next
General Assembly at Burlington, in West New Jersey; and
that all future General Assemblies do set at one or the other
of those place-^ alternately.

"And our further will and pleasure is, that the General
Assembly so to be called, do consist of four and twenty repre-
sentatives; who are to be chosen in the manner following, viz:
Two by the inhabitants house-holders of the city or town of
Perth Amboy, in East New Jersey, two by the inhabitants
house-holders of the city and town of Burlington in West
New Jersey; ten by the freeholders of East New Jersey, and
ten by the freeholders of West New Jersey; and that no
person shall be capable of being elected a representative by

"Learning and Spicer, 609-618. "Ibid., 619-646.

140 NEW JERSEY

the freeholders of either division, or afterwards of sitting in
General Assembly's who shall not have one thousand acres of
land of an estate of freehold, in his own right, within the
division for which he shall be chosen; and that no freeholder
shall be capable of voting in the election for such representa-
tive, who shall not have one hundred acres of land of an estate
of freehold in his own right, within the division for which he
shall so vote; And that this number of representatives shall
not be enlarged or dimished, or the manner of electing them
altered, otherwise than by an act or acts of the General
Assembly there, and confirmed by the approbation of us, our
heirs and successors."

It is interesting to note that the plans for the assembly out-
lined in the above follow in exact detail a plan proposed in the
Proprietor's Memorial offering to surrender the Jerseys (1701)
with the single exception that they asked for an assembly of
thirty-six; sixteen from each division of the province outside
the two principal towns. ^^

According to Lord Cronbury's instructions he could pro-
rogue or dissolve the assembly. He also had the power of
veto, which power the proprietors also reserved.'^" There
was a property qualification for both electors and representa-
tives and the only additional qualification for representative
was that his freehold must be in the district represented. In
practice this method was not at all satisfactory to the con-
stantly increasing anti-proprietary party or faction. Under
it the election in each division was held at only one place —
a fact which disfranchised many eligible freemen and enabled
a few men to choose the representatives for the division.
For example, in the December election of 1703 in East Jersey,
the anti-proprietary interests determined to carry the day
and so they appeared at the chosen place to the number of
three hundred. On the other side forty-two qualified voters,
most of them from New York and Long Island, appeared.
Despite the discrepancy in numbers the sheriff, Thomas
Gordon, returned the representatives chosen by the forty-
two.^' Also it was frequently charged and apparently with

" Learning and Spicer, 599-602.

>« Ibid.. 650, 651. " N. J. Arch., III. 14-15.

NEW JERSEY 141

truth, that in West Jersey the Quakers continually dominated
the elections although outnumbered in the province except in
Burlington County .^^

Soon after his first visit to the province Cornbury placed
himself in opposition to the proprietary party. The first
session of the first assembly under the new government met
in 1703. This contained a proprietary majority.^' The
second session of the same assembly met in September, 1704.
This also had a bare majority for the proprietary party,
despite the efforts of Cornbury and his friends. Friction soon
developed between the governor and the members of the
assembly over their dilatoriness in providing for the defence of
the province, so the governor dissolved it and issued writs for
a new one to meet in November, 1704.^^

When the assembly met the governor refused the oath to
three members from West Jersey. This gave the anti-
proprietary party a majority and thereby the power to pass
an election act which they hoped would gain permanent
control of the assembly for their party. This act abolished
the election of ten men at large from one division at one point.
Instead representatives were apportioned among the towns
and counties. Qualifications for representatives were that
they must be inhabitants and freeholders of the division for
which they were chosen and freeholders of the county whence
they were elected .^^ Here was a distinct step toward a more
democratic government; yet a step made possible by the use
of means in themselves low and unworthy.

The reaction of the proprietary party to this law was true
to form. Whenever any propertied interest in the colonies
objected to the growth or extension of the power of the
provincial assembly, the objection nearly always rested on
English law and English practice as a precedent. And so it
was in this case. The West Jersey proprietors sent a memorial
to the Lords of Trade objecting to several of Cornbury's acts,
among them his refusal of the oath to three representatives

" For the ability of the Quakers as practical politicians, see N. Y. Col. Docs., IV,
1148, 1171; V, 34.

"Tanner, 307. »< Mulford, 291. "Laws Enacted in 1704 (Bradford Prints).

142 NEW JERSEY

and his approval of the new election act. After expressing
doubt whether the assembly had the authority to alter the
qualifications of electors and representatives, they point out
that the qualifications according to their former law were

"... a standing and unalterable part of the constitu-
tion of England, where the electors of knights of the counties
must have a fixed freehold ; and the elected are generally the
principal landed men of their respective counties; but the
alteration now made, was intended to put the election of
representatives into the meanest of the people, who being
impatient of any superiors, will never fail to choose such from
amongst themselves, as may oppress us, and destroy our
rights." ""^

It looks very much as though the initiative in passing a new
election act was taken by the governor rather than by the
assembly. In June, 1704, Cornbury recommended to the
Lords of Trade a change in the property qualifications for
electors and representatives on the ground that some men
who had one thousand acres of land were illiterate, while
there were other very able men with equal wealth but having
none of it, or only part of it, in land. He also pointed out that
when the elections were held in only one place in each division
of the province, it necessitated some men traveling two hun-
dred miles to vote.^^

In February, 1705, Cornbury wrote to the Lords of Trade
commenting on the laws passed the previous year and urging
their approval. The reasons he advanced for the approval of
the election act were the same as those stated in his letter of
June, 1704, to the same body. The act, however, was not
approved being in all probability too democratic for the
queen's advisers.^*^ Cornbury's reasons for approving the act
in question were weighty enough and they must have im-
pressed the Lords of Trade for in April, 1705, that body
recommended to the queen that additional instructions be
issued Cornbury dealing with the question of the provincial
assembly.^'

"Smith, History of New Jersey, 341. "Ibid., Ill, 68.

»' N. J. Arch., Ill, 54. " Ibid.. Ill, 96.

NEW JERSEY 143

This recommendation was favorably acted upon and the
additional instructions reached Cornbury in the spring of
1705.'*° According to these two representatives were to be
chosen by the inhabitant householders of Perth Amboy and
two by the freeholders of each of the five counties of East
Jersey. In the west division two representatives each by the
inhabitant householders of Burlington and Salem and two
each by the freeholders of the four counties of West Jersey.
It will be noted that this divided the province equally, giving
each division twelve representatives. A definite property
qualification was restored but was reduced so as to require
of an elector one hundred acres of land or a personal estate of
£50 sterling. To be chosen a representative one must have a
freehold of one thousand acres or a personal estate of £500
sterling. Nothing, of course, was said regarding the question
of residence. In view of the insistence of the crown in drawing
up the framework of the representative system in the province
it is hard to understand the clause in the above instructions
which seems to give the assembly a free hand in altering it,
or at least in suggesting alterations. The clause referred to
was one which stated that no act affecting the number of
representatives or the method of their choice should be oper-
ative except by action of the assembly with royal approval.
Five years passed before the assembly used the right granted
by the clause to which reference has just been made. Corn-
bury had been replaced as royal governor by Lovelace, whose
instructions on the subject of the assembly read exactly as
did the additional instructions given Cornbury.^^ The
assembly which met Lovelace in March, 1709, contained a
proprietary majority, yet a step forward was taken in an act
passed June 4, specifying the qualifications of electors and
representatives. The preamble stated the reason for its
passage to be that the

"present Constitution granted and allowed by our
Sovereign Lady the Queen,"

had been found inconvenient.

" N. J. Arch.. Ill, 96-08. " Ibid.. Ill, 318.

144 NEW JERSEY

Section one defines the qualification of an elector as

"One Hundred Acres of Land in his own Right or be worth
Fifty Pounds, current Money of this Province in Real and
Personal estate."

In order to be chosen a representative one must have

"One Thousand Acres of Land in his own Right, or be worth
Five Hundred Pounds, current Money. . . ."

Sections two and three apportioned the representatives
among the cities, three in number, and the nine counties into
which the province had been divided by this date. Section
four in full reads:

"And be it further Enacted by the Authority aforesaid.
That all or every Person or Persons, elected and chosen
Representatives for the Counties aforesaid, shall be Free-
holders in that Division for which he or they shall be chosen
to serve in General Assembly, as aforesaid ; and that no Per-
son who is not a Freeholder shall be capable of electing or
or being elected, nor of sitting in General Assembly." ^^

It will be noted that the principal change made by this act
was the change of the word "sterling" to the phrase "current
money of the province" in stating the personal estate re-
quirements.

The act of 1709 never before operative for the simple
reason that it and all the other acts passed at the same session
disappeared somewhere between the printer in New York
City and the New Jersey provincial officer whose duty it
was to send the laws to England."*^ Whether there was any
connection between the disappearance of the above act and
the passage of the one on the same subject the following year
is not clear. Something, however, led the assembly which met
Ingoldsby, in November, 1709, to pass a law which laid down a
strict residential requirement and one which was far reach-
ing in its effect. This assembly was anti-proprietary, which
partially or perhaps entirely, accounts for the new law which
was passed in January, 1710.

"Acts of General Assembly of New Jersey, 1702-1776, 6-7 (Allinson).
<> N. J. Arch., IV, 45. Suspicion pointed to Bass as having deliberately destroyed the
acts.

NEW JERSEY 145

From the preamble it is plain that the condition calling
forth this law was one which we have not met in any other
colony so far in this study. That is, the possibility of a large
landholder, although a resident of another state, being elected
to the assembly. The preamble states the problem so con-
cisely we will quote i"*^

"Whereas nothing can conduce more to the Honour,
Safety and Advantage of this Province, than the Members
elected to serve in the General Assembly be perfectly ac-
quainted with the true State and Circumstances of this
Province; and many Inconveniences may arise by electing
Persons to serve in the said General Assembly who inhabit in
another Province, although they may have some Interest or
Estate in this, but their Concerns lying and being in Some of
the neighboring Provinces, where they with their Families
do inhabit, they may thereby be swayed to have greater
Regard to the Interest of the Province in which they so
inhabit, than for the Welfare and Prosperity of this.

"Be it Enacted . . . That ... no Person shall be
capable of being elected a Representative to serve for any
City, Town or County, in the General Assembly within this
Province, who is not inhabiting and usually resident himself,
and likewise with his Family (if any he hath) the Day of the
Date of the Writ of Summons, and hath been so Three
Months before in some City, Town or County of that Division
in which he shall be elected."

The next and last section retained the freehold qualification
for representatives of the act of 1709.

Robert Hunter was appointed governor late in 1709 but
did not arrive in the province until June, 1710. When his
instructions were drawn the election act of January, 1710,
had either not been received in England or else it was ignored,
probably the former. The portion of the "instructions"
relating to the assembly was exactly the same as in Lovelace's.
In a letter which accompanied the instructions the Lords of
Trade said they had no objection to the act (the Cornbury
Act of 1704) altering the constitution and regulating the
election of representatives except it did not contain a definite
property qualification. In this connection the governor was

" Acts of General Assembly of New Jersey, 1702-1776, 10-11.
10

146 NEW JERSEY

given the authority to reduce the freehold requirement if after
reaching the province he felt it to be too high.^^

Hunter met his first assembly, which was a proprietary one,
in December, 1710, and succeeded in getting an act through
the assembly which conformed more nearly to the royal in-
structions than did those of 1709 and 1710. The council would
not agree to the new act, however, so the one of 1710 remained
the law of the province. In Hunter's letter to the Board of
Trade, telling of his attempt and failure to get a new election
act we get some important information from the standpoint
of this study. It reads in part:*^

"The Act for regulating Elections and assertaining the
Qualifications of the Representatives of this Province. This
Act tho founded upon and conformable to an Instruction of
Her Majesty for this Purpose was Rejected, because re-
pugnant to an Act past in Coll. Ingoldsby's time, which
act as they themselves owne was made on purpose to exlcude
Doctor Johnston and Captain Farmer from being Elected;
These Gentlemen at that time living by chance in the province
of New York, tho their Estates, which are very valuable, lye
in the Jerseys, and who have acted very zealously, and
strenuously for her Majesty's service."

It seems that when Ingoldsby sent the acts passed by the
assembly in 1710 to England he did not comment on them as
each royal governor was supposed to do. So the Lords of
Trade asked Hunter's opinion on them. He rendered this in
the same communication referred to above. In regard to the
election act of 1710 he said:

"This was levelled particularly against Captaine ffarmer
and Doctor Johnston men of the best Estates and ability
in this Province, and who have been very active and usefull
in Her Majesty's Affairs, and may deprive us of more such
and is contrary to that Constitution of Assembly appointed
by Her Majesty upon the surrender & confirmed by all her
subsequent Instructions, obliging the elected to an actual
residence, whereas the Instructions mentions no other quali-
fication but an Estate to a certaine value within the Divi-
sion." ''^

"N.J. Arch., IV. 2. II (Note).

" N. V. Col. Docs., v. 201; N. J. Arch. IV, 55. «' N. Y. Col. Docs. V. 207.

NEW JERSEY 147

While stating his objection to the law in question it is
significant that Hunter did not recommend its rejection. He
was having a far more harmonious administration than any
of his predecessors and though he had scarcely been in the
province a year he had probably sensed the popular demand for
a law containing a residential requirement. There is no record
of royal approval of the election act of 1710 but neither was
it vetoed. That it was considered the law of the province from
the date of its passage is shown by its inclusion in the earliest
collections^ of provincial laws."*^ So we can say that 1710
marked the end of non-residence representation in New
Jersey. To close our study of this province it only remains
to see to what extent non-residence representation was
practiced during the period from 1703, when the province
was reunited and 1710 when the non-residence representation
law was passed.

During that period five assemblies met, holding eleven
sessions. In the second assembly, which met in 1704, one of
the representatives for the eastern division was John Royce^*
a merchant of New York City,^^ who owned a large tract of
land on the Raritan. In the third assembly in 1707, Lewis
Morris and Thomas Farmer both appear as representatives
for the eastern division.^- Morris' legislative record in New
York we have already noticed in our study of that province.
Farmer, according to the letter of Governor Hunter already
quoted, was also a resident of New York.

Royce and Farmer were both members of the fourth
assembly, which met in March, 1709." This brings us to the
fifth assembly, the one which passed the non-residential act.
The assembly journal does not give the list of members, but
from the reasons given for the passage of the law we have
every reason to assume that Farmer and Dr. John Johnstone
had been returned as representatives. Farmer's residence
has already been noted but Dr. Johnstone is hard to place.

«« AUinson.

*• The next Election Act in New Jersey in point of time was one in 1725 which abolished
non-residence voting. (Allinson, p. 69.)

"Assembly Journal, 41. " Assembly Journal, 77.

"Tanner, 310. "Ibid.. 157.

148 NEW JERSEY

He was a large land owner near Perth Amboy and there
is evidence that he had lived there prior to this date. On the
other hand we have Governor Hunter's statement that at the
time of the passage of the non-residence act he was living in
New York City. He evidently moved back and forth between
the two provinces, for he was Mayor of New York City in
1715, but in 1720 was removed from the Provincial Council in
New York because for two years he had been a resident of
New Jersey,^^

In the study of New Jersey we find very little if any op-
portunity for the development of non-residence representa-
tion before we find a law forbidding it. This is accounted for
by the fact that the province contained no one city which by
its size and influence dominated its political life, and by the
further fact that the unit of representation was not the county
or town but the divisions of which there were only two.
When the question of non-residence representation does come
up it presents a phase which is entirely new. It brings us
face to face with the fact that the great landowning interests
were not stopped by state lines in their attempt to protect
their property through membership in the assembly of the
province where their property lay. And so we find able and
influential residents of New York City seeking seats in the
New Jersey Assembly, just as they were constantly represent-
ing outlying New York Districts in the assembly of that state.
All of which was strictly conformable to English political
practice of the time. But New Jersey in thus parting from
English practice at this early date showed that the influence
of some political ideas, sown by the Quaker proprietors years
before, had borne fruit.

" N. Y. Col. Docs., V, 467, 649.

PENNSYLVANIA

In our study of New Jersey we noted the tendency of Quaker
proprietors to let the inhabitants of their province have a
much more free rein in managing their affairs than did the
royal governors. We also stated that this freedom resulted
in a greater democracy in provincial afTairs. A study of Penn-
sylvania ought to show whether such conclusions were
warranted; for in this province a Quaker proprietor had full
and undivided authority.

Penn's authority and property rights in Pennsylvania and
the territory later known as Delaware rested upon four docu-
ments.

(1) Charter from Charles the Second dated March 4, 1681,
conveying Pennsylvania to Penn.

(2) Deed of release for province of Pennsylvania from the
Duke of York, dated August 31, 1682. The general terms of
this were the same as the charter. Penn's purpose in getting
this was to preclude any possibility of a later assertion of the
duke's right.

(3) Grant of Duke of York to Penn, August 24. 1682.
conveying to him the town of New Castle (Delaware) and a
district twelve miles around it.

(4) Grant from the Duke of York of the same date as (3)
conveying to Penn a tract of land below New Castle, which
was later included in the two lower counties of Delaware.'

During its provincial history Pennsylvania had what
might be called four constitutions. They were:

(1) The Frame of Government of 1682.

(2) The Frame of Government of 1683.

(3) Markham's Frame of Government of 1696.

(4) Charter of Privileges — 1701.2

The charter from the king to William Penn gave him the
authority to call an assembly and to determine its form and the
qualification of its members. In short, the proprietor was

' Charter and Laws, 466-467.

»AU these can be found in Pa. Col. Recs., Vol. I and II.

149

150 PENNSYLVANIA

given an absolutely free hand in deciding the form of govern-
ment of his province. The portion of the charter in which we
are interested reads:

"Know ye therefore, that wee reposing speciall trust and
confidence in the fidelitie, wisdome, justice and provident
circumspeccon of the said William Penn, . . . Doe grant
free, full and absolute power, ... to him and his heirs,
and to his and their deputies, and Lieutenants, ... to
ordayne, make. Enact and under his and their Scales to
publish any Lawes whatsoever . . . , according unto their
best discretions, by and with the advice, assent and ap-
probacon of the freemen of the said countrey, or the greater
parte of them, or of their Delegates or Deputies whom for
the Enacting of said Lawes, when, and as often as need shall
require."* Wee will, that the said William Penn, and his heires,
shall assemble in such sort and forme as to him and them
shall seem best.*

Acting under the authority conferred upon him by the
charter Penn drew up the first Frame, that of 1682, before he
left England. It provided for an elective council, something
not found in any other province or colony. That portion of
the Frame relating to the council reads :

"That the freemen of the said province shall, on the
twentieth day of the twelfth month, . . . , meet and as-
semble in some fit place, of which timely notice shall be
before hand given, . . . , and then and there shall choose
out of themselves seventy-two persons of most note for their
wisdom, virtue and ability, who shall meet on the tenth day
of the first month next ensuing, and always be called and act
as the Provincial Council of the said province." ^

It was further provided that after the first year one-third
of the council should be elected annually and no councilor
could serve two successive terms. No other qualification or
restrictions regarding the election of council members was
mentioned.

The provision regarding the assembly was :

• The break in the reading caused by a period at this point breaks the grammatical
structure of the preceding and following sentences. The evident thought is obtained by
disregarding the period.

•Charter and Laws, 83. * Ibid., 94.

PENNSYLVANIA 151

"And to the end that all laws prepared by the governor
and provincial council aforesaid, may yet have the more full
concurrence of the freemen of the province, it is declared,
granted, and confirmed, that at the time and place or places
for the choice of a Provincial Council as aforesaid, the said
freemen shall yearly choose members to serve in General
Assembly as their representatives, not exceeding two hundred
persons, who shall yearly meet on the twentieth day of the
second month ... in the capital town, or city of the
said province." *'

A later clause^ provided that for the first year the general
assembly might consist of all the freemen of the province.
Provision was also made for the increase in size of it to five
hundred as the population of the province increased. The
division of the province into hundreds and counties and the
apportioning of representatives among them was to be by the
council and general assembly. All elections under the Frame
of 1682 were to be by ballot.^

A later document dated May 3, 1682, amplified some of the
provisions of the Frame. ^ It provided that all elections should
be free and that the council and general assembly should be
the sole judges of the election of their own members. Every
freeman was capable of electing or being elected to the
provincial council or general assembly. The qualifications
for freemen varied, there being four dififerent requirements:
(a) Every inhabitant who was, or who should become, the
owner of one hundred acres of land; (b) Every one who had
paid his passage, and taken up one hundred acres of land at a
penny an acre and had cultivated ten acres of it; (c) Every
servant or bondsman, free from his service, who had taken up
fifty acres and cultivated twenty of it; (d) . . .

. . . "Every inhabitant, artificer, or other resident in the
said province, that pays scot and lot to the government. . . ."'"

It will be noticed that while this made freemanship depend
on ownership, or at least on the paying of taxes, yet it was at
the same time one of the most liberal extensions of that

• Charter and Laws, 96. ' Ibid.. 98. >» Ibid.. 99.

^ Ibid., 97. 'Ibid., 99.

152 PENNSYLVANIA

privilege existing in any colony or province. It is especially
noticeable that it took into consideration the inhabitant
already in the province before it came into the possession of
Penn, and the bond-servant who had completed his term of
service.

Penn arrived at Newcastle on October 27, 1682, and on the
next day took possession of the "lower counties" according to
the Duke's deed. The next day he proceeded to the main
province. Soon thereafter he divided it into three counties,
Bucks, Philadelphia, and Chester. At the same time the
Delaware territory was divided into the counties of New-
castle, Kent, and Sussex."

Sheriffs and the other officials necessary for conducting
county business were appointed and on November 18th
writs were issued to the sheriffs to summon the freeholders of
their respective counties on the twentieth and to elect "out
of themselves" seven persons to serve as their representatives
in a general assembly to be held at Upland (Chester) on
December fourth. ^^ ^he words "out of themselves" in the
writs calling this election clearly limited the freemen to the
choice of residents of their respective counties.

The assembly met on the appointed day. On the sixth
the Act of Union annexing the lower counties was passed, and
also an act naturalizing the citizens of those counties. On
the next day the proprietor placed before the assembly the
Frame of Government and the "Written Laws or Constitu-
tions".^^ The latter consisted of ninety laws proposed by
Penn, sixty-one of which were later adopted and were known as

. . . "The Great Law or Body of the Laws of the Province
of Pennsylvania."

The second one of these prescribed qualifications for electors
and for representatives.

"And be it fully enacted . . . that all officers and per-
sons commissionated and employed in the service of the
government in this Province, and all Members and Deputies
elected to serve in the Assembly thereof, and all that have a

" Proud. I. 234. " Hazard, 603. '» Charter and Laws, 477.

PENNSYLVANIA 153

Right to elect such Deputies, shall be such as profess and
declare they believe in Jesus Christ to be the son of God, the
Savior of the world, and that are not Convicted of ill fame,
or unsober and dishonest Conversation, and that are of
twenty one years of age at least." '''

The next assembly met in Philadelphia, March 10, 1683.
The form of writ used in calling the election for this assembly
has been preserved :

"I do hereby, in the King's name, empower and require
thee to summon all the freeholders, in this bailiwick, to meet
on the 20th day of the next month, at the falls upon Delaware
river; and that they then and there, elect and chuse out of
themselves, twelve persons of most note for wisdom and
integrity, to serve as their delegates, in the provincial council,
to be held at Philadelphia, the 10th day of the first month
next; and that thou there declare to the vsaid freeman, that
they may all personally appear at an Assembly, at the place
aforesaid, according to the contents of my charter of liberties;
of which thou art to make me a true and faithful return.

William Penn.
To Richard Noble, High Sheriff of

The County of Bucks; and the other five Sheriffs likewise
for their several counties." ^^

By the terms of this writ the freemen of the counties were
again restricted in their choice to residents and the size of the
assembly was increased to seventy-two. When the assembly
met, however, some of the members brought with them
petitions^^ from their constituents praying that the number
chosen might constitute both council and assembly, three from
each county constituting the council and nine from each
county the assembly. The proprietor agreed to this request
and the assembly later made the arrangement permanent by
an Act of Settlement.^'

The debate attending the act mentioned above determined
the proprietor to bring in a new frame of government. The
very next day at a general meeting of proprietor, council and

'* Charter and Laws. 108. ■' Proud. I, 235.

'« The Petition from Chester County can be found in Hazard, 603.
"Charter and Laws, 125.

154 PENNSYLVANIA

assembly, Penn put the question whether they desired the
old charter or a new one.

. . . "They unanimously desired there might be a new one." '^

After many conferences between the proprietor, council, and
assembly, the new charter (Frame of 1683) was read to a
joint assembly with impressive ceremonies on April 2, 1683.
It was then signed by Penn, by each person present, and was
delivered to a committee of the assembly. ^^

The new "Frame", or constitution as we have called it,
made several changes in the political organization of the
province. The council was to consist of eighteen members,
three from each county; the assembly of thirty-six, six from
each county. The council and the house together were to
constitute the general assembly. The residential qualifica-
tions for representatives was retained; for the instrument
provided that the freemen of each county should yearly

"Choose out of themselves six persons of note for virtue,
wisdom, and abilities to serve in Assemblie as their Repre-
sentatives." -"

From 1692 to 1695 Penn's authority as proprietor was in
abeyance and with it the constitution of 1683. Governor
Fletcher, of New York, was also appointed governor of
Pennsylvania. His commission,^^ dated October 21, 1692,
authorized him to appoint a council not to exceed twelve in
number. The provisions of his commission regarding the as-
sembly were those with which we are already familiar in the
other royal provinces. It authorized him to

". . summon and Call General Assemblies of the

Inhabitants, being ffreeholders, within our said Province,
according to the usage of our province of New York; And
that the persons thereupon duly Elected by the major part
of the freeholders of the respective Counties and places, and
soe returned . . . sha 1 be called and held the Generall
Assembly of that our said province." ^"^

■• Pa. Col. Recs.. I. 63. " Pa. Col. Recs., I. 352-357.

•» Ibid.. I, 72. " Ibid.. I, 353.

••Charter and Laws, 158.

PENNSYLVANIA 155

Fletcher lost no time in setting up the royal government in
Pennsylvania. He arrived in Philadelphia about noon,
April 26, 1693. By afternoon he had chosen several councilors
and had asked them to recommend persons qualified for
judges, sheriffs, and other officials.^'' The next day more
councilors were chosen, and William Markham was appointed
lieutenant governor. Fletcher now asked the advice of the
council as to the number of members which he ought to
summon as an assembly. Some advised adhering to the
constitution of the province, the charter as they called it,
but the governor disregarded this suggestion and on the
twenty-seventh issued writs for an assembly to meet on
May 15th. Philadelphia and Newcastle were to have four
members each; the other counties three each.^*

On the first day of the assembly which met according to
the above writs, opposition developed between it and the
governor. While this opposition at times took on different
forms the basis of it is shown by the action of the assembly,
on the second day of the session. They sent a formal address
to the governor asking that the

. . . "Procedure in Legislation may be according to the
usual Method and Laws of this Government . . . which we
humbly conceive to be yet in Force. . . ." ^*

Fletcher replied in writing the same day that,

"The Constitution of their Majesties Government, and
that of Mr. Penn's, are in a direct Opposition one to the other.
If you will be tenacious in sticking for this, it is a plain
Demonstration, use what Words you please, that indeed
you decline the other.

"Time is very precious to me; I hope you will desist from
all unnecessary Debates."

The whole session was one long contest, the assembly demand-
ing a confirmation of existing laws before it would pass a
supply bill much desired by the governor. Fletcher finally
yielded.

" Pa. Col. Recs., I. 365.

"Ibid., I. 366. "Assembly Journal, 1, 68.

156 PENNSYLVANIA

There was one inheritance from the Fletcher regime,
however, which was a distinct forward step in the democratic
government of the province. Prior to 1693 all legislation
originated in the council. Under Fletcher, with an appointive
council, was put into operation the plan in vogue in other
provinces. Having once been given this privilege we will find
later the assembly would not give it up even after the former
constitution was again in force.

Penn's authority in the province was restored in 1694, and
on August 20th William Markham was appointed governor.
His commission authorized him to conduct the government

. . . "according to the laws and usages thereof."

He interpreted this to mean the Frame of 1683 and issued
writs for the election of a council and assembly. Almost im-
mediately upon convening the assembly asserted its right to
initiate legislation. The council finally agreed and so that
right of the assembly became a part of the law of the province.^^
Markham had much trouble with the assembly over a
supply bill to aid New York, so he arbitrarily dissolved it. He
now changed his mind about the meaning of his commission
and adopted the order of procedure of Fletcher's administra-
tion. He appointed a council consisting of twelve members
and issued writs for an assembly to be composed as was the
assembly which met under Fletcher, namely twenty. The
assembly immediately upon convening issued a strong
remonstrance;-^ at what it declared to be the governor's
violation of the constitution in his issuance of the writs calling
the assembly into being.-^ There thus began a contest be-
tween governor and assembly which resulted in Markham
submitting some new proposals or, as he called them,

. . . "some heads of a frame of government." -^

Within four days the assembly completed its consideration
and approval of these, and a few days later the "Markham's

••Charter and Laws. 561. "Proud, I, 409.

» For an excellent statement of Markham's position see Pa. Col. Recs., I, 505.

'• Pa. Col. Recs., I, 508.

PENNSYLVANIA 157

Frame of Government" ^° as it was later known, became
the constitution of the province.^*

Under this both assembly and council had the power of
initiating legislation. The members of these two bodies were
to be chosen annually. The qualifications were set forth in
the following section which said that the council and as-
sembly should,

". . . Consist of two persons out of each of the Counties
of this government, to serve as the peoples Representatives in
Council, and of four persons out of each of the said Counties
to serve as Representatives in Assembly. . . ."

". . . That no inhabitant of this Province or Terri-
torities shall have right of electing or being elected as afore-
said, Unless they be free Denizens of this government and
are of the age of Twenty one years or upwards and have
fifty acres of land, ten acres whereof being seated and cleared
or be otherwise worth fifty pounds lawful money of this
government Clear estate and have been resident within
this government for the space of two years next before such
election." ^'■^

The above quotation shows that this third constitution of
the province, like its two predecessors, contained a require-
ment that the representatives of a county must be residents
of that county, the words "out of each of the said counties"
being open to no other construction. Then it went still further
and for the first time established a definite requirement as
regards the length of required residence in the province before
one was eligible to the office of councilor or representative.

Penn returned to the province December 3, 1699, and the
question at once arose as to what was the fundamental law of
the province. Some said Markham's Frame, others that the
proprietor's return brought the Frame of 1683 into operation
again. Penn's attitude was that the former had served while
he was absent but that it could not bind him against his own
act, that is, the Frame of 1683. The council proposed a con-
sideration of both Frames, keeping what had proven good in

•» Pa. Col. Recs., I, 48.

•> Charter and Laws, 245-260; Pa. Col. Recs., I., 509; Assembly Journal, I, 94-97.

" Ibid., 246-247.

158 PENNSYLVANIA

each. As a result of the joint action of proprietor, council,
and assembly, the Charter of Privileges of 1701 was agreed
upon. The assembly's final action on this was on October 23,
and a few days later it was signed by the proprietor and thus
became the fundamental law of the province or the fourth
constitution.^' Throughout the eighteenth century until the
adoption of the Constitution of 1777, this instrument was
recognized as the constitution of the province.'*

The portion of the Charter of 1701 bearing on this study
reads :

"For the well governing of this Province and Territories,
there shall be an Assembly yearly chosen by the Freemen
thereof, to consist of four Persons out of each County, of
most Note for Virtue, Wisdom and Ability . . . : Which
Assembly . . . shall have all other Powers and Privileges
of an Assembly, according to the Rights of the Freeborn
Subjects of England, and as is usual in any of the King's
Plantations in America.

"And the Qualifications of Electors and Elected, and all
other Matters and Things relating to Elections of Repre-
sentatives to serve in Assemblies, tho' not herein particularly
expressed, shall be and remain as by a Law of this Govern-
ment, made at Newcastle, in the Year One Thousand Seven
Hundred, intituled, An Act to ascertain the Number of
Members of Assembly, and to regulate the Elections." '^

The words "out of each county" in the above, rather than
"from each county", which we have already seen was the form
used in New York, show that the residential qualification for
representatives which had obtained in the province from the
very first was continued throughout its provincial history.
The act passed in 1700, to which reference is made in the
Charter of 1701, went a little more into detail regarding further
qualifications for electors and representatives. The portion
of it bearing on this subject reads:

". . . That there shall be four persons elected yearly
in each respective county of this province and territories to

'•Assembly Journal, 161.

•* The reason for such a statement is that during this period the provincial laws
refer specifically to it from time to time as the constitution.
"Assembly Journal, I, Part II, 11.

PENNSYLVANIA 159

serve as members of assembly. And that no inhabitant of
this province and territories shall have right of electing or
being elected . . . , unless he or they be natural or
native-born subject or subjects of England, or be naturalized
. and unless such persons . . be of the age of

twenty-one years or upwards, and be a freeholder .
of this province or territories, and have fifty acres of land or
more well seated and twelve acres thereof or more cleared
and improved, or be otherwise worth fifty pounds lawful
money of this government clear estate, and have been resident
therein for the space of two years before such election." ^^

The above law was disallowed by the Queen in Council in
1706,^^ but another act with exactly the same title was passed
by the assembly January 12, 1706. This altered the size of
the assembly and gave the city of Philadelphia two repre-
sentatives but stated the qualifications of representatives in
exactly the same words as the former act.^* The portion of
this act which gave Philadelphia representation separate from
that of its county laid down the requirement that its repre-
sentatives must be residents of the city.^^ The law of 1706
met a better fate than its predecessor. It was considered by
the Queen in Council in October, 1709,^° but was not acted
upon and became law through lapse of time.

It should be kept in mind, however, that neither the law of
1700 nor that of 1706, mentioned above, affected the subject
with which this study deals and have only been mentioned
because the former act was referred to as amplifying the terms
of the constitution which itself contained the residential
requirement.

As our study of Pennsylvania comes to a close, we are
struck by the fact that it is the first province or colony thus
far in this investigation in which non-residence representation
was never practiced. It is difficult to find an explanation of

"Statutes of Pennsylvania (1682-1801), II, 24.

" Statutes of Pennsylvania, II, Appendix I, Section II.

"Ibid.. II. 21.?.

"Statutes of Pennsylvania, II, 213-214. In this connection it is interesting to note
that the Pennsylvania constitution of 1 790 forbade a resident of a town entitled to separate
representation to be elected for the county containing the town and a resident of the
county outside the town from representing the town. (Article I, Sec. 3.)

"Statutes of Pennsylvania (1682-1801), II, 221.

160 PENNSYLVANIA

this which is not open to objection. The following is the most
satisfactory to the writer. Penn was a democrat in every sense
of the word. This was inevitably so when one of his station
by birth became a Quaker through choice. He was at the
same time a keen politician, using that word in its best sense.
Being thoroughly familiar with English law and English
practice regarding representation he or any other democrat
could not fail to see that the practice, which was contrary to
law, resulted in representation in parliament of property
rather than of people. In Penn's dealings in America both in
the Jerseys and in Pennsylvania there is abundant evidence
that human rights took precedence in his mind over property
rights. This was true even when it meant that he suffered
financially because of his attitude on that matter, thus reach-
ing a plane of practice which few people have reached even to-
day.

In the light of the above, he evidently felt in drawing up
his first Frame of Government that the representatives of the
people should come from among those whom they represented.
So a residential qualification was written into the first consti-
tution of the province and was kept there throughout its
provincial history, partly perhaps through the influence of the
Quaker element in Pennsylvania politics, but also because of
the fact that it is very doubtful if the people of any province
once experiencing the privilege of this democratic innovation
would have given it up, except under strong pressure from
some powerful governmental influence.

DELAWARE

The early legislative history of Delaware was so intimately
connected with that of Pennsylvania that it is needless to
repeat any portion of the previous chapter prior to the
Charter of Privileges of 1701. That instrument provided that
in case the representatives of the "Province and Territories"
decided within three years not to meet together each might
have a separate assembly. That of the Lower Counties'
was to consist of as many members from each county as the
people desired. 2 In inserting such a provision in the charter,
Penn evidently foresaw trouble between the two sections of
the province and took this means of easing what would have
been, with him absent, an almost intolerable situation.

In fact, the friction almost resulted in a breaking of rela-
tions during the very assembly which adopted the Charter.
The custom had been to hold some of the sessions of the
assembly at Newcastle in the Lower Counties. The session of
October, 1700, had been held there. For some reason when the
assembly met the following October in Philadelphia, one of
the first items of business was to confirm the laws passed at
Newcastle the previous year. Upon this being proposed the
representatives of the Lower Counties withdrew from the
assembly.

They stated the reason for their withdrawal to be that if
all laws enacted at Newcastle had to be re-enacted or con-
firmed at Philadelphia, then the two parts of the province
were not equal as the act of union of 1682 had declared them.
Penn replied that their action in withdrawing grieved him
very much and that the confirmation of the laws previously
passed was simply a matter of form to prevent any question
concerning them arising during his absence.^ The seceding

' This was the term generally used to designate the territory later called Delaware.
It was also sometimes called the "Territories".

•Assembly Journal, Pennsylvania, Part II, p. III.

' This session was held before the regular time to enable Penn to sail for England to
defend his title to the province. From his address to the assembly explaining this it is
clear that he had hoped to spend the remainder of his days in the province.

'' 161

162 DELAWARE

members stated that their protest was not against him
personally but that the union had been burdensome from the
beginning. The situation thus revealed led Penn, as has
been said above, to provide in the Charter of Privileges for
separation, if it could not be avoided.

One clause of the Charter is supposed to have increased
the discontent of the Lower Counties. That was the one
granting the city of Philadelphia two representatives. Here-
tofore the parts of the province had been equal but in this the
Lower Counties recognized the first step in the increase of the
power of the province, while theirs from their very geographical
location was bound to remain stationary.

When the assembly of 1702 met there were no representa-
tives present from the Lower Counties. In fact, none had
been chosen by them on the regular election day. The as-
sembly adjourned and word was sent to the Lower Counties
to send representatives. So an election was held there and
the representatives chosen came to Philadelphia in November
but refused to sit with the members from the province. The
two groups finally met together on November seventeenth.
On the nineteenth the Council sent a message to the assembly
asking three questions:

(1) Are the representatives of the province willing to meet
with the representatives of the territories to form an assembly?

(2) Are the representatives of the territories willing to meet
with the representatives of the province to form an assembly?

(3) If either refuse what methods do they propose for the
formation of an assembly?*

The members from the province answered "Yes" to the
first question, but with conditions. The members from the
Lower Counties answered as follows:

"The said members finding that they are called here on
a different foot with those of the upper Counties cannot, if
there was no other obstacle, join with them in Legislation,
But are cheerful and willing when warrantably convened to
proceed in Assembly to answer her majesty's Commands,
and such other matters of importance as shall then be laid

*Pa. Col. Recs., II, 81.

DELAWARE 163

before them, though they will not presume to direct the
Government in what methods to convene them, they sup-
posing it not their business, but that of those who rule over
them." ^

The governor was not satisfied with the answ^er of either
party, and the next day dissolved the assembly after calling
to their attention the fact that neither the importance of the
matters before them nor the ill consequences of separation
had moved them nearer a decision.

Up to this point it had been the representatives of the
Lower Counties which wished to withdraw w^hile those of the
province had tried to retain them as an integral part of the
provincial assembly. But now the positions were reversed.
Just before the assembly was dissolved the members from the
province presented an address to the governor calling his
attention to the provisions in the Charter of 1701 for a
separate assembly for each section in case of disagreement
and prayed for an assembly for the province to be composed
of eight members from each county.^

Governor Hamilton died soon afterward without taking
any action on the matter and so when October, 1703, came
eight members from each county of the province presented
themselves as the assembly.'' The council was at a loss
what to do but finally recognized them as the assembly.

John Evans arrived as governor in early February, 1704.
His commission appointed him the Proprietor's Lieutenant
Governor for "Pennsylvania and Counties annexed".^ On
choosing new members for the council he selected three from
the Lower Counties. This was part of Evans' deliberate
program to reunite the province and territories. Soon
thereafter the governor held a conference at Newcastle with
some of the leading citizens of the Lower Counties and got
them to agree to join with members from the province in an
assembly. So, on his return, writs were prepared for an
election in the Lower Counties in March, and setting the date
of the assembly for April 10, 1704.

'Pa. Col. Recs., II, 82. 'Assembly Journal, I; Part II, 1.

'Ibid., II, 83-84. » Pa. Col. Recs., II, 116.

164 DELAWARE

The members appearing on that date for the province were
those chosen the previous October for the regular fall assembly.
No members appeared for Sussex County, but the other two
counties of the "territory" were represented. Upon assembling
the members from the province said they desired to address
the governor and council but not in the presence of "others",
so the representatives from the two lower counties withdrew.
The address called attention to the fact that they had been
chosen under the proprietor's charter and therefore considered
themselves "A House of themselves".^ The next day all met
the governor and council together. The governor addressed
them on the advantages of unity and concord and urged a
renewal of their joint association despite the steps toward
separation already taken. ^'^

After two days of conference between the two groups of
representatives each presented a written address to the
governor^^ and on the following day they appeared in joint
session before the governor and council. All the documents
relating to the matter at issue were read and each side stated
its case. Briefly it was as follows :

Province: — That without violating their charter they
could not recede from the position taken neither lessen nor
reduce their number.

Territories: — That they would come into a joint assembly
on the terms that each county in both sections should be
represented by four members and no more.

At the conclusion both sides said :

"That as things now stand, it would be most suitable
for each to act distinctly, to which they requested the Gover-
nor's Concurrence if he should think fitt." ^^

Seeing that his efforts to reunite the two parts of the
province were useless, the governor met the Pennsylvania
Assembly'^ on the seventeenth and recognized than as properly
constituted to conduct provincial business. The Delaware

•Pa. Col. Recs., II, 126. n ibid., II, 130, 131.

"Ibid., II. 127-129. "Ibid., II. 132.

'« Hereafter in referring to the "Territories" or Lower Counties the term Delaware
will be used.

DELAWARE 165

representatives were still in Philadelphia and the governor
met them at the Bull's Head on the morning of the eighteenth.
He told them that he would adjourn them to meet at New-
castle if in the opinion of Judge Monpesson he could legally
do so. If not he would issue writs for an early election.

On April twentieth the matter was presented to the council
and Judge Monpesson gave his opinion that writs for a new
election had better be issued. This was done ordering the elec-
tion of four representatives from each county to be elected
on May twelfth and to meet the governor at Newcastle on the
twenty-second. At the same meeting the council decreed that

"Ye Laws made and past by ye Province and annexed
Counties, in conjunction, were still as much in force upon their
separation, both in Province and Territories Separately as
ever." "

The records do not state why the first Delaware Assembly
did not meet at the time set in the election writs, namely,
May 22, 1704, but Scharf states that the first assembly met in
November. Most of the members who had been elected for
the last joint assembly with Pennsylvania men were returned
for this one. Scharf also states that a law was passed confirm-
ing all previous existing laws and one giving each county six
members in the assembly. ^^ No such law as the last one men-
tioned appears in a compilation of Delaware laws from 1700-
1797, published at Newcastle in the latter year. Neither has
any trace been found of it from any other source.

The first election act passed in Delaware, of which we have
any record, was in 1734. This was entitled

. . . "An Act for regulating elections, and ascertaining the
number of the Members of Assembly."

This law set the number of representatives at six from each
county but provided that this number could be increased by
the assembly at any time. Annual elections of representatives
at the time and in the manner prescribed by the Charter of
Privileges were to be held. Qualifications for voting and hold-
ing office were stated in the following portion of the act.

"Pa. Col. Recs., II. 138. "Scharf, I. 129.

166 DELAWARE

"Provided always, That no inhabitants of this government
shall have right of electing or being elected as aforesaid, unless
he or they be natural born subjects of Great Britain, or be
naturalized in England, or in this government, or in the
province of Pennsylvania, and unless such person or persons
be of the age of twenty-one years or upwards, and be free-
holder or freeholders in this government, and have fifty acres
of land or more well settled, and twelve acres thereof cleared
and improved, or be otherwise with Forty Pounds lawful
money of this government clear estate, and have been resident
therein for the space of two years before such election. . . ." ^^

As the above was the last legislative act by the Delaware
Assembly on the general question of electoral qualifications
prior to the adoption of its Revolutionary constitution this is
a good place to inquire whether non-residence representation
was permitted and practiced under the old constitution.

What was the Delaware constitution prior to the adoption
of the one of 1776? Evidently the Charter of Privileges
granted by Penn to the united province in 1701. Proof of
this is seen in the fact that from the date of separation (1704)
until 1776 Delaware recognized the authority of the provincial
governor and council of Pennsylvania. Added proof is that
the election act of 1734 brought the election practices of the
province into harmony with the provisions of the Charter of
Privileges.

The study of Pennsylvania has shown that the charter
established a county residential qualification for representa-
tives. While the act of 1 734 quoted above seems only to estab-
lish a provincial residential qualification, the provisions of the
charter would, of course, take precedence and govern the
practice. So there is no doubt that in Delaware as in Penn-
sylvania non-residence representation of the counties in the
assembly was prohibited and not practiced during the period
of independent existence as it had been prohibited and not
practiced during the period of union. In this connection it
ought to be said, however, that in case of doubt in the matter
there is no way of coming to an absolutely certain decision.

"Laws of Delaware (1776-1792). I, 148.

DELAWARE 167

Under similar circumstances in other provinces recourse has
been had to a checking of the lists of assembly members;
but this is impossible in the case of Delaware as the Assembly
Journal for the whole provincial period is missing.^^

The qualifications for representatives in the assembly
under the Constitution of 1776 are given in the following
quotations:

1. "One of the branches of the Legislature shall be called,
The House of Assembly, and shall consist of seven Repre-
sentatives, to be chosen for each county annually of such
persons as are freeholders of the same." ^^

"The other branch shall be called, The Council, and
consist of Nine Members, three to be chosen for each county
. . . who shall be freeholders of the county for which they
are chosen. . . ." '^

Here we have the apparent substitution of a freehold
qualification for the freehold and residence qualification
which had formerly prevailed. Yet it is hardly reasonable to
suppose that Delaware at this late date in her provincial de-
velopment changed a political practice of nearly a hundred
years. It is more reasonable to assume that the established
custom was taken for granted and specific reference to it
omitted because this constitution, like all the Revolutionary
constitutions, was hastily constructed and was never submitted
to the people.

Again in case of doubt, however, we can have no proof one
way or the other whether non-residence representation was
practiced under the constitution of 1776, as there are no
Assembly Records prior to 1791.^0 The first constitution of

"' "There being no minutes of Legislative proceedings of such an early period existing
in the state of Delaware, herein before stiled the territories. The traditional account is
that all such minutes preceding the year One Thousand Seven Hundred and Twenty-two,
were destroyed about that time by fire at the burning of Colonel John French's house in
New Castle, in which it is said they were when that accident happened."
Note p. 49, Appendix Vol. I, Laws of Delaware, 1706-1797.

'» Art. 2. Constitution of 1776.

^olbid. Art. 3.

-' "Sparks says: 'When the British were in Wilmington, a short time before the
battle of Brandywine, and when they carried off Pres. McKinly, they also took away the
public papers and journals belonging to the County of New Castle, pertaining to the old
government. . . . The President was authorized to take measures to procure them.
This seems never to have been done'."
Winsor, VIII. 452.

168 DELAWARE

Delaware under her period of statehood was 1792. The
clause of this which states the qualifications for members of
the assembly reads:

"No person shall be a Representative who shall not have
attained the age of twenty-four years, and have a freehold in
the county in which he shall be chosen, and been a citizen and
inhabitant of the state there years next preceding the first
meeting of the Legislature after his election, and the last
year of that term an inhabitant of the county in which he
shall be chosen. . . ." ^^

So we find Delaware beginning her career as a state with a
definite residential qualification for representatives written
into her constitution. That this is simply the reflection of
her practice for over a hundred years there can be little doubt.

" Laws of Delaware (1700-1797), I, XXXII.

MARYLAND

The charter granting Maryland to Cecilius Calvert bore date
of June 20, 1632. It made Calvert the absolute lord of his new
possession with a single exception and in that exception we
have the germ of the legislative system of the province. The
part of the charter bearing on this point reads:

"We ... do grant unto the said now baron . . .
free, full and absolute power ... to ordain, make, and
enact laws of what kind soever, ... of and with the
advice, assent, and approbation of the free-men of the same
province, or of the greater part of them, or of their delegates
or deputies, whom we will shall be called together for the
framing of laws, when, and as often as need shall require . . .
and in the form which shall seem best to him or them "^

While the above gave Lord Baltimore full authority over
the assembly of freemen he had no option regarding whether
or not he should have their cooperation in the government of
the province. Under the authority granted him he could
decide the form of the assembly; the unit of representation;
the number of representatives; length of session ; in fact, every
phase of its organization and constitution was in his hands to
decide as he wished ; but call such an assembly of freemen he
must, according to the wording of the charter. It has often
been pointed out that under a proprietor of different type the
government of Maryland would have been very oppressive, but
as it was, after a few skirmishes with the proprietor in the early
years of the province, the people through their representatives
in the provincial assembly seem to have won as large a meas-
ure of self-government as obtained in any colony or province.

Government in Maryland can be said to have begun
with the appointment of the governor and two

. . . "commissioners for the government of the province".
These officials were appointed by the proprietor in England

1 Portion of section seven of Charter to Lord Baltimore, June 20, 1632. This can be
found in Kilty's edition of the Laws of Maryland.

169

170 MARYLAND

before they sailed for Maryland with about three hundred
colonists in 1634.

Evidently no time was lost in calling an assembly, for we
know such a body met in 1635, but there is no record of its
proceedings. The early carrying out of the charter provision
leads naturally to a consideration of Baltimore's policy on
the question of assemblies. Putting it briefly it can be said
that this policy was to call frequent assemblies, but to control
their proceedings by retaining the right to initiate legislation
himself and also the right of determining the number of
members and how often they should meet. As we shall see
later, from the first meeting of an assembly of which we have
any record until the legislature had assumed its permanent
form these rights of the proprietor were challenged and
gradually taken from him or yeilded by him, whichever way
one looks at it.

The unit of representation in the assembly was originally
the hundred.- In the early days of the province there were but
two counties, St. Marys, including all the western shore, and
Kent, including Kent Island and the eastern shore. New
counties and hundreds were created by act of the proprietor
or by that of governor and council acting with his approval.
As population increased the two original counties were in-
evitably sub-divided into several counties as fast as con-
ditions demanded it. In 1654, under the Puritan Com-
missioners, the county was made the unit of representation
in the assembly and this was retained after the restoration of
the proprietor's authority in 1658.

The earliest assembly of which we have a record is one
which met in January, 1638. In calling this both personal
writs and writs of election were used. The former is something
with which we have not met in any other colony or province
so far in this study. By means of a personal writ the governor
could summon whomsoever he pleased to be a member of the
assembly without the one summoned having to trust his

•Archives. Council (1636-1667), 59, 70, 89, 91.
Archives, Assembly (1637-8 — 1664), 2, 87, el. seq.

MARYLAND 171

t:hances at the election of delegates.^ One of the election writs
for this assembly has fortunately been preserved. It is the
one to Captain Evelyn, commander of Kent County. He
was directed to be present at a

. . . "g[ene]ral assembly of all the freemen of this Province
to be held at his town of St. Maries on the five and twentieth
day of January next." ^

The writ stated that it was issued at the direction of the
proprietor. Within six days Evelyn was to publish the
proclamation to all the inhabitants of Kent Island and was
to persuade them to come in person to the assembly. Those
who could not come were to select

"such and so many persons as they or the maior part of
them . . . shall agree upon to be the deputies or burgesses
for the said freemen."

When this assembly met it was composed of officials
(councilors and high constables) and twenty-one freemen.
Of the latter twenty were registered as planters or gentle-
men, and one as a carpenter. Not a single burgess or delegate
appeared. Many freemen had given others their proxies,
but these were practically all held by officials.^ The roll of the
assembly was never closed and practically every day witnessed
the addition of new members.

This session considered some laws submitted by Lord
Baltimore but rejected them.® On February 8, Lionel Calvert,
governor of the province, or lieutenant-general as he was more
frequently called, prorogued the assembly until February 26.
The reason given was to enable a committee, which was
drafting some laws to be submitted to Lord Baltimore, to have
a chance to do its work. The meeting of the assembly was
postponed until March fifth. On the sixteenth, after several
days consideration, fourteen laws were passed. '^ The details
of these we do not know, but one of them was "touching

' In the Maryland Records we find the words hurgess, delegate, deputy, used inter-
changeably. The term delegate came to be the one most commonly used, howeyer, al-
though "burgess" was more commonly used in the early days of the province.

'Archives, Assembly (1637-8—1664), I. 'Ibid. (1637-8—1664), 9.

^ Ibid., (1637-8—1664), 2-4. ■> Ibid. (1637-8—1664). 21.

172 MARYLAND

g[ene]rall Assemblies".^ The above acts were all rejected by
the proprietor^ probably because the passage of them in-
fringed on his right to originate legislation.

The next assembly was held the following February, that
is, 1639. This was largely a representative body rather than
a primary one as the first^" assembly had been. The reason for
this was the form of an election writ. The one sent to the
freemen of Mattapanient hundred read:

"Caecilius Lord Proprietary to our trusty Richard Garnett
Senior Richard Lusthead Anum Benum Henry Bishop Joseph
Edlo Lewis Freeman and any other the Freemen inhabiting
at Mattapanient Greeting whereas we have appointed to hold
a General Assembly of the Freemen of our Province at our Fort
of St. Marys On the five and twentieth day of this instant
month of February these are therefore to will and require
you that tomorrow or that on thursday next at the furthest
. . . you and every one of you . . . make such nomina-
tion and Election of your Burgesses for that manor or division
at Mattapanient for this next Assembly as you shall think fitt
hereof fail not at your Perill." ^^

As has been said the assembly which met in response to
the above form of writ was largely representative. In-
dividual writs were issued to only three men in addition to the
councilors. This assembly passed an act entitled:

"An Act for establishing the House of Assembly, and the
Laws to be made therein. . . . The several Persons elected
and returned (pursuant to the writs issued) shall be called
Burgesses, and supply the Place of all the Freemen consenting
to such Election . . . ; And that the Gentlemen summoned
by his Lordship's special Wiit, to each of them directed, the
said Burgesses, and such other Freemen who have not con-
sented to any of the Elections as aforesaid, as shall be at any
Time assembled, or any Twelve or more of them (whereof the
Lieut. General and Secretary to be always Two) shall be called
the House of Assembly." ^^

Later in the same session on March 19,

•Archives, Assembly (1637-8 — 1664), 15.

' Bozman, II, 67.

'» The word "first" is used to mean the first assembly of record.

>' Archives, Assembly (1637-8—1664), 28.

"Laws of Maryland (1638 O. S.), Bacon Edition. This act reads a trifle differently
in the Assembly Journal but the meaning is the same. Archives, Assembly (1637-8 — 1664),
82-83.

MARYLAND 173

. . . "An Act ordaining certain Laws for the government of
this Province"

was passed. Item fourteen of this reads:

"The Lieut. General and Secretary (or his Deputy) and
Gentlemen summoned by special Writ, and one or two
Burgesses out of every Hundred (at the choice of the Freemen)
at any Time hereafter assembled, shall be judged a General
Assembly." ^*

To find that both the first and second assemblies were so
eager to give definite form to their constitution is evidence
enough that the freemen of Maryland, like those in all the
other colonies, felt that their rights as Englishmen could only
be safeguarded by an independent legislative body of their own
choosing. If this eagerness, on the part of the Maryland
provincials, shown by the laws passed in 1638 and 1639,
surprises us; we have a still greater surprise in store when we
consider two laws proposed at this session which did not pass
because of the governor's opposition. One of these, an act
stating what persons should constitute the general assembly,
seems clearly to have limited the privilege of voting to actual
residents within each hundred. It stated' that the assembly
should consist of all council members; those summoned by
the governor's special writ; the lord of each manor in the
province and freemen representing each hundred. The latter
were to be chosen as follows:

". . . the Sheriff of the County shall within every hundred
summon all the Freemen Inhabiting within every hundred
. . . to Assemble at a certain place and time to be by him
appointed and prefixed which freemen so Assembled (or the
major part of them) shall Elect and chuse some one, two or
more able and Sufficient men for the hundred (as the said
Freemen or the major part of them so assembled shall think
good) to come to every such General Assembly." "

The other act was one providing for triennial assemblies,'^
with the provision that the freemen assembled therein were

"Laws of Maryland (1638 O. S.), Bacon Edition.

'•Archives, Assembly (1637-8 — 1664), 74-75. This would also have made the as-
sembly a representative rather than a primary legislative body.

■Mt should be noted that this was one year previous to the Parliamentary Triennial
Election Act. The Maryland Assembly passed another Triennial Act in 1642 which was
vetoed by the governor (Archives, Assembly, 1637-8 — 1664, 130), but triennal assemblies
were finally obtained in October, 1654 (Archives, Assembly, 1637-8 — 1664, 341).

174 MARYLAND

"to have the like Power, Privilege, Authority and Jurisdic-
tion, in Causes and Matters arising in this Province, as the
House of Commons in England have had, used or enjoyed." ^^

From 1639 to 1650 the assembly fluctuated between a
primary and a representative body while a few members
attended on personal writs. During this period it con-
tained four classes of members: (1) Delegates; (2) Per-
sonally summoned ; (3) Freemen; (4) Proxies. This variation
can be best shown perhaps by giving the wording of the
governor's election proclamations for the above-mentioned
period :^^

January, 1642 'burgesses'

July, 1642 'Burgesses'

August, 1642 'freemen or Deputies'

December, 1642. . . .'freemen or proxies'

March, 1643 'freemen only'

November, 1644. ... 'freemen, proxies or burgesses'
December, 1647. . . .'freemen, proxies or burgesses' ^*

The year 1650 presents such a distinct step in the develop-
ment of the legislature in Maryland that the assembly of that
year should be noted at length. Governor Stone, the first
Protestant governor of the province, issued an election procla-
mation in January. It read in part:

"Whereas the manner of summoning Assemblies within
this province is wholly left to L[or]d Propr[ietor]s discretion,
these are therefore in his L[ordshi]ps name and according to
his direction to will and requyre you without delay to give
Notice to all the fTreemen of St Maries County that they are
to appear p[er]sonally att St. Maries the 2d day of Aprill next
or ells by their proxies or Delegates, soe as noe one fifreeman
soe appearing have above 2 proxies, besides his owne voyce,
or that forthwith after such notice, the freemen of every
hundred within the said County make choyce of Burgesses
within every such hundred in manner following, Viz. That
all the ffreemen of St. Clements hundred or the maior part of

i« Archives, Assembly (1637-8—1664), 74-75.

1' During this period Maryland came near having a woman in the assembly. In
1648 Mrs. Margaret Brent as administrator of the estate of the deceased governor, Lionel
Calvert, claimed the right to cast two votes in the assembly. (Archives, Assembly, 1637-&
—1664. 215.)

"Archives. Assembly (1637-8—1664). 114, 128, 167, 201, 213.

MARYLAND 175

them, make choyce of one of the ffreemen of the said hundred
for their Burgesse." ^^

(Then followed an enumeration of the hundreds of the
county and the number of burgesses they might choose:
namely, Newtowne — two or three; St. Georges — one or two;
St. Marie; — one; St. Inigoes — one or two; St. Michaells —
one or two. In each case the specific provision was contained
that the freeman or freemen chosen be "of that hundred".
The proclamation closed with the paragraph:)

"Provided that the freemen of every of the said hundred
or the maior part of them respectively doe agree together, in
one of the two wayes of Assembling themselves last mentioned.
Or otherwise they are all of them hereby requyred to appeare
personally (and not by their Proxies, or Delegates or Burgesses)
att the time and place, and for the purpose before expressed."

It will be noticed that the above gave the people of Mary-
land the choice between a primary and a representative
assembly. All the hundreds showed their preference for the
representative system by choosing delegates. After this date
the assembly remained a representative body. When the
assembly met it promptly organized itself into two houses and
passed an act confirming that arrangement. So 1650 is not
only the date of the permanent establishment of a representa-
tive assembly in Maryland but it is also the date of the be-
ginning of a bicameral legislature.^" Whether there is any
connection between the above facts and the fact that 1650
marked the beginning of Protestant rule in the province is a
question the answer to which would probably be determined
by the political and religious background of the one answer-
ing it.^^

After the establishment of a bicameral legislature the
Upper House, as it was called, became the supporter of
proprietary and royal interests while the Lower House stood
firmly for the rights and privileges of the people. The history
of future legislation in the province is largely a history of the
contest between the two Houses.

■•Archives, Assembly (1637-8—1664), 259.

2» In Maryland, as in the other provinces, the councilors constituted the upper house.

" The assembly of 1650 was the first one in which the Puritan settlement of Providence
(Annapolis) was represented. Some Catholic members refused to take the required oath
because they interpreted it as forbidding them to tell even their confessor what transpired
in the assembly.

176 MARYLAND

About the only questions the constitution of the Lower
House left unsettled at this date (1650) were the number of
members to be chosen by or from each election unit and the
required qualifications for ones so chosen. As both matters
were always mentioned in the election writs or election
proclamations, we will quote from these in chronological
order until a definite and fully accepted policy was arrived at.

In February, 1661, a writ was issued to the sheriffs of
each county requiring them to

. . . "cause to be elected such and soe many discreete
men as you shall think fit to serve as Burgesses in the said
Assembly." ^^

By this time there were six counties^^ in Maryland, and in
response to the above writ, two, St. Marys and Calvert, sent
four burgesses while the other counties sent two each. The
next year the proclamation to the sheriff's calling an assembly
contained these words :

". . . att the discretion of the Freemen of your County
you cause one two three or foure discreete Burgesses to be
elected to serve in the said Assembly. . . ." ^^

The change in the wording, in one particular, of these two
documents, issued in consecutive years, summoning an as-
sembly is due to the fact that when the assembly of 1661 met
the lower house promptly sent a grievance committee to
the governor and council asking for an interpretation of the
writ summoning them. Their objection was that it seemed to
leave the number of members to be chosen by each county to
the discretion of the sheriff of the county. The governor and
council replied that while the writ did seem to be open to that
interpretation their thought was that the sheriff's power only
extended to preventing the election of anyone disabled by law,
while the "determinacon of the number and of the the persons
to be Elected" was left to the freemen. ^^

"Archives, Assembly (1637-8—1664). 395.

" St. Marys, Charles, Calvert, Anne Arundel, Kent, Baltimore.

«< Archives, Assembly (1637-8 — 1664), 425.

» Ibid. (1637-8—1664), 398.

MARYLAND 177

Between the years 1666 and 1670 the feeling between the
lower house on the one hand, and the governor and upper
house on the other became very bitter. The governor was
especially displeased with the attitude of the lower house in

1669. So when the election writs were issued in December,

1670, they differed materially from what had been customary.
A new qualification both for electors and burgesses was laid
down by the following words:

". . . thereby giving notice to all freemen of your said
County who are within the said County Visible seated Plan-
tations of fifty Acres of Land at the least or Visible personal
Estates to the Value of fifty Pounds Sterling at the least re-
quiring them to appear . . . and to elect and choose four
several sufficient freemen of your said County. . . ." ^^

Then follows a statement of property qualifications similar
to that for the electors. This was the first appearance of a
property qualification for electors and burgesses.

The next law on the subject of representation came in the
year 1678.^^ This was a comprehensive act. It stated the
need of wholesome laws and that such laws could only be
established by the

"Consent of the freemen of this Province by their
severall delegates and representatives by them freely nom-
inated, chosen and Elected."

It further stated that the political practices of the assembly
ought to follow as nearly as possible the proceedings of
Parliament. It provided representation for cities and coun-
ties, still unformed, as soon as they should be created. Ordin-
ary-keepers and sheriffs were disqualified from serving as
delegates. The form of writ to be sent to each sheriff was
given in the law. By it he was to call together at least four
commissioners of the county and they with the clerk were to
make proclamation thereby

. . . "giveing notice to all the freemen of your said County
who have within your said County a freehold of fifty Acres

"Proceedings of the Council (1667—1687-88). 77-78.
"Archives. Assembly (1678-1683), 60-63.
12

178 MARYLAND

of Land or a visible personall Estate of forty pounds starling
att least Requiring them to appear att the next County
Court ... at which time . . . the said freemen . . .
are hereby Authorized and Required to Elect and Chuse four
severall and Sufficient freemen of your County each of them
haveing a freehold of fifty Acres of land or a visible personall
estate of fifty pounds starling att least within your County." ^^

The governor seems to have taken no action in regard to^
the law until 1681 when he vetoed it.^^ He gave as his reason
that it was too great a burden on each county to send four
delegates to the assembly. Evidently realizing that there
was a demand in the province for a more definite understand-
ing on the question as to the constitution of the assembly he
issued a proclamation dated September 6, 1681, reminding
all the freemen of Maryland that the charter to the pro-
prietor empowered him to call assemblies in whatsoever form
he wished. It continued that:

"the forme of Assembling the said ffreemen their
Delegates and Deputyes hath hitherto been altogether un-
certain from the very beginning of the Seateing of this Prov-
ince." ^0

. . . "ffor the setteling therefore of the mindes of the flfree-
men and Establishing a certainty for the future"

definite rules were laid down. The form of writ con-
tained in the proclamation does not differ a word from that
contained in the law of 1678 except that only two deputies
were to be chosen in each county.

The assembly elected under this writ met in October, 1682.
On November second a lengthy address was sent to the
governor by the Lower House calling his attention to the fact
that his wishes regarding the number of delegates had been
obeyed but that their constituents wished their former
privilege of sending four delegates restored. They then
presented a proposal which they hoped would

»s Archives, Assembly (1678-1683), 61-62.
"Archives, Council (1671-1681), 378-379.
">Ibid. (1681—1685-6), IS.

MARYLAND 179

. . . "fully comply with your Lordship's good intentions
and Satisfie the Minds and Desire of the People." ''

The proposal was that a law be passed that in the future
all election writs

. . "may go out for the Electing of Two three or four
Delegates for each County at the Choice of the Freemen
thereof."

A bill embodying these desires was sent to the Upper
House. In recognizing its receipt this branch of the assembly
upheld the governor's right to settle the matter in question,
but went on to say that if it was done by legislative act it
must be by action of both Houses

. . . "who legally Represent the Freemen of this Province. "^^

This was on November fourth, and it led to a resolution in the
Lower House on the seventh which declared without a dis-
senting vote that

. . . "the Deputies and Delegates Chosen by the Freemen
of this Province in a General Assembly are the only Repre-
sentativ^e Body of the Freemen of this Province." ^^

It also contained the declaration that the public ought not to
be called upon to bear the expense of the Upper House.

In his reply the governor denied the request of the Lower
House, stating that it would be as

. . . "inconvenient for the Freemen to accept as it may be
dangerous for me to Grant."

He called their attention to the fact that he was only exercising
powers granted him by the charter and probably got to the
heart of the matter in this sentence :

". . . it would be as reasonable for me to give away my
Power of Calling and Dissolving of Assemblies, as to give
that of Choosing the Number of Delegates, and such Persons
as think much I should hold my Power in the latter would
not long be Satisfied afore they requested the power from me
of the former." ^^

•■Archives. Assembly (1678-1683). 346. "Ibid. (1678-1683), 373.
"Ibid. (1678-1683), 354. "Ibid. (1678-1683), 355.

180 MARYLAND

The next year the Lower House passed another act re-
garding "Electing and Summoning Burgesses", but we know
nothing of its details as it was not accepted by the Upper
House.^^ The latter body in turn prepared a bill which was
just as unacceptable to the Lower House.^^

Here the dispute between the two houses seems to have
rested until 1692 when an election act was finally passed.
As usual this act contained the form of writ to be issued to
each sheriff. According to its terms the sheriff of each county
was required at specified times to give

". . . notice to all the freemen of your said County
who have within your said County a freehold of fifty Acres
of Land or a Visible Estate of forty pounds Sterling at the
least requiring them ... to Elect and choose four severall
and sufficient freemen of your County, each of them having a
freehold of fifty Acres of Land or of Visible personall Estate
of forty Pounds sterling at the least within your County. . ."^^

Later in the act the right of St. Marys to be represented by
"Two Cittizens"^^ was confirmed. Provision was also made
for new counties and new cities. Upon the calling of the first
assembly after the erection of any such county or city the
sheriff of the county or the mayor recorder of the city was

. . "to cause four freemen of the said county and two
freemen of the said City and Borough, qualified as in the said
Writ . . . ,"39

to serve as delegates in the general assembly.

The next election act was passed in 1704.''° It differs in no
essential point from the one of 1692. This act was repealed
by another one passed in December, 1708.^^ This differed
little in essential details from the laws of 1698 to 1704. It
did provide, however, that election writs should be issued
forty days before the meeting of the assembly. Also in re-
ferring to the four freemen to be chosen this phrase occurs,

» Archives, Assembly (1678-1683), 535. " Ibid. (1684-1692), 542.

"Ibid. (1678-1683), 581. » Ibid. (1684-1692), 543.

"Ibid. (1684-1692). 544.

*» Ibid. (1704-1706), 294-297. During this year a Residential Act affecting provincial
officials was passed. It provided that no office of trust or profit should be open to anyone
who had not resided in the province three years. (Archives, Assembly, 1700-1704, 429-
430.)

"Ibid. (1707-1710), 352-353.

MARYLAND 181

. . . "whether the parties so elected be present or absent."

The next legislative act bearing on this subject was in 1708,
when Annapolis, which had now become the capital of the
province, was granted representation. We have already seen
that St. Marys was granted the privilege of sending "Two
citizens" to the assembly in 1692. The removal of the
capital to Annapolis had evidently resulted in the decay of
St. Marys, for its privilege of being represented was now with-
drawn and the privilege of representation in the assembly was
extended to Annapolis in the following words:

"Then it was proposed whether It may not be proper to
erect this Town and port of Annapolis into a City with the
Privilege of sending two Citizens to the Genii Assembly." ^"

This was agreed to, Annapolis being

"the Seate of Government and a growing place."

The last election act passed by the provincial assembly was
in 1715. In general form it was similar to its predecessors
but differed materially from them in containing the word
"residents" and using it in such a manner as to leave doubt
whether non-residence representation was permitted. As was
customary the act contained the form of election writ to be
used. The portion of the writ bearing on this study reads:

". . . thereby giving Notice to all the Freemen of your
said County, who have within the said County a Free-hold of
Fifty Acres of Land, or who shall be Residents, and have a
visible Estate of Forty Pounds Sterling at the least thereby
requiring them ... to elect and choose Four several and
sufficient Freemen of your County, each of them having a
Freehold of Fifty Acres of Land, or who shall be a Resident,
and have a visible Estate of Forty Pounds Sterling at the
least, within your County, whether the Parties so elected be
present or absent " ^^

The wording of the above act as found in the Archives
(Assembly) differs in an important particular, in respect to
the subject of this study, from the law as it appears in Bacon's

"Archives, Council (1698-1731), 249.

" Laws of Maryland, Bacon Edition (1716), Chap. XI, Sec. Ill; Archives, Assembly
(1715-1716), 270-274.

182 MARYLAND

Edition of the Laws of Maryland. In the Archives the writ
reads in part:

"Giving notice to all the freemen of your said County who
have within the said County a fifreehold of ffifty Acres of Land
who shall be residents or have a Visible Estate of forty pounds
Sterling at the Least." ^^

If the latter wording is correct a residential qualification for
delegates or representatives is plainly established, but if the
wording in Bacon is correct there is a possibility that non-
residence representation was permitted.

A rereading of the Act of 1715 as well as of those which
preceded it will show that whether non-residence representa-
tion was permitted under Maryland law depends entirely
upon the content and meaning of the word freemen. Prior to
1650, when the unit of representation was the hundred, there
is no doubt that voting within each hundred was limited to
actual residents and that one chosen to represent them must
be a resident.''^

Between 1650 and 1670 the wording of the writs is such
that there is no clue as to the practice followed. But with the
initiation of a property qualification for suffrage, in 1670,
we at once meet the problem whether as in the case of most
of the other colonies and provinces the ownership of land in a
Maryland county made one a freeman of that county. Gamb-
rall in his Early Maryland takes the position that in the early
days of the province the word "freeman" meant every man
not a servant or slave. Thus with manhood suffrage the man
who was an indebted servant yesterday might be the legis-
lator of to-morrow.*^ Bozman, on the other hand, assumes
that the word "freemen" was synonymous with "freeholder".''^

But on this point we have a very definite answer in a
matter which arose in the assembly of 1642. The summons
calling that assembly was directed to all . . .

. . . "freemen inhabiting within the Province to be at the
said Assembly . . . either by themselves or their Deputies
or Delegates." ^'^

"Archives, Assembly (1715-1716). 271.

" Note the reading of the Election Act of 1639 and the Election Proclamation of 1650.

<• Gambrall, 84. «' Bozman, II, 47. «« Archives, Assembly (1637-8—1664), 167.

MARYLAND 183

When the assembly met the first item of business was this:

"Mr. Thomas Weston being called pleaded he was no freeman
because he had no land nor certain dwelling here, etc., but
being put to the question it was voted that he was a Freeman
and as such bound to his appearance by himself or proxie,
whereupon he took place in the house." *^

So it seems quite clear that according to Maryland usage
freeman and inhabitant were synonymous terms. But after
1670 the privilege of holding office and of voting was restricted
to freemen who were also freeholders. If the ownership of an
estate in a county made the said owner a freeman of that
county regardless of his place of residence, as it did for ex-
ample in New York, then he could both vote in that county
and be elected to represent it in the assembly.

Prior to 1715 it seems quite clear that the privilege of
voting and being elected to office in the county was restricted
to residents; in other words that ownership of land in a county
carried with it no political privileges unless one resided there.
But the very wording of the law of 1715, "having a freehold
or a resident", raises a doubt in regard to the matter which in
the absence of any authoritative statement regarding it can
only be settled by finding out whether any Maryland county
was ever represented by a non-resident.

The lists of assembly members from 1650 to 1732 (which
is as late as the assembly records have them published)
have been carefully examined and checked. Not a single case
of non-residence representation appears. There are a few
instances in the records which at first consideration might
look like non-residence representation but every one can be
satisfactorily explained. For example, John Salter appears
as a delegate for Kent County in 1701 and 1704; for Prince
George in September, 1708; and for Queen Anne's in Decem-
ber, 1708 and 1709.**' Salter was a resident of both Kent
and Queen Anne's counties at the time he represented each.^^
In all probability he lived in that part of Kent which went
into the new county of Queen Anne's when it was formed in

"Archives, Assembly (1637-8 — 1664), 170.

"Ibid. (1700-1704), 128, 356; Ibid. (1707-1710), 202. 267, 410.

" Hanson, 348; Baldwin, IV, 36.

184 MARYLAND

1706. Listing Salter as a delegate for Prince George in
September, 1708, is a clerical error. At this same session
Major James Smallwood, who represented Charles County
continuously from 1693 to 1713, appears for Cecil County .^^
The error regarding both Smallwood and Salter is clearly
shown by a report^^ of the Committee of Elections which was
presented a few days after the opening of the session.

Some other instances where we find the same man appear-
ing at different times for different counties can all be accounted
for by the division of the old counties to form new ones, a
process which automatically changed the legal residence of
many people.

The only form of non-residence representation ever
practiced in Maryland was during the period in which free-
men were allowed to choose proxies to represent them in the
assembly which at the time was a primary body. Speaking
of the first assembly, Steiner says,

"Proxies, however, paid no regard to hundred lines; but
one man might hold proxies from all three hundreds." ^*

At the end of the provincial period we find Maryland
writing her political practice regarding representation into
her first constitution, that of 1776:

"That the legislature consist of two distinct branches, a
senate, and a house of delegates, which shall be styled The
General Assembly of Maryland.

"That the house of delegates shall be chosen in the follow-
ing manner: All free men, above twenty-one years of age,
having a freehold of fifty acres of land in the county in which
they offer to vote, and residing therein, and all free men,
having property in this state above the value of thirty pounds
current money, and having resided in the county in which they
offer to vote one whole year next preceding the election, shall
have a right of suffrage in the election of delegates for such
county." ^^

Electors so qualified were to elect annually by viva voce vote

"Archives. Assembly (1707-1710), 202.
"Ibid. (1707-1710). 208-209. "Steiner. 76.

"Section II, Constitution of 1776. Section 14 also provided a residential qualifica-
tion for senators.

MARYLAND 185

"four delegates for their respective counties, of the most wise,
sensible and discreet of the people, residents in the county
where they are to be chosen one whole year next preceding the
election, above twenty-one years of age, and having in the
state real or personal property above the value of five hundred
pounds current money."

Strange as it may seem the only instance in Maryland
history where ownership of land carried with it the privilege
of voting was provided for in this constitution. Referring to
Annapolis, it declared

. . . "but the inhabitants of the said city shall not be en-
titled to vote for delegates for Anne-Arundel county, unless
they have a freehold of fifty acres of land in the county, dis-
tinct from the city." '"^

This, of course, was no violation of the county residential
clause in the same instrument.

Why one rule should have been applied to Annapolis and a
different one to Baltimore is hard to understand. Section six
of the constitution of 1776 specifically confined representation
of that city to residents and further provided that they could
not vote in nor represent the county.

In Maryland as in Pennsylvania, where the people were
allowed to determine the qualifications of their representa-
tives without pressure from either proprietor or crown, we
find that they did the logical and natural thing, that is, chose
men as their representatives whose chief interest, through
residence, lay within their election unit.

"Section IV, Constitution of 1776. Even this form of non-residence voting came
to an end in 1799.

VIRGIN I A

One approaches a study of Virginia with an attitude in-
stinctively different from that in the case of any other colony.
A certain distinction characterizes the legislative beginnings
of this colony. "The first representative body in America"
is a phrase which to all minds calls up at once the House of
Burgesses of 1619.

In no other colony is there found such a diversity of forms
of representation as was the case in Virginia in the successive
periods of its history. Chandler calls attention to this^
and part of the list as he gives it follows:

(1) Representation by settlements or plantations with no
definite number of representatives from each settlement.

(2) Parish and county representation without a fixed
number of delegates from either the parishes or counties.

(3) Representation by counties only, two representatives
from each county, neither more nor less, whether the counties
were large or small.

(4) Representation to the College of William and Mary
in accordance with the English custom of allowing repre-
sentation to the universities.

(5) Borough representation, granted by the town charters,
or by an act of the general assembly.

While representative government developed early in
Virginia there was no hint of it in any of the first three charters.
The charter of 1606 did not grant powers of government to the
London Company. The settlement at Jamestown was simply
a plantation owned by the company. The colonists were
servants of the company.^ There was no private property
and little liberty. The immediate source of authority in the
province was a council of residents appointed by the Council
of Virginia, in England, which in turn was appointed by the
crown.

The charter of 1609 made the London Company a joint
stock company and gave it governmental powers. It brought

■ Representation in Virginia, 5. « Osgood, I, 34.

186 .

VIRGINIA 187

no liberties to the planters but the corporation gained many.'
Under this charter the colonists were ruled by a strict code of
laws drawn up in England.

About the only change made by the charter of 1612 was
that by this instrument the company gained the right to
elect the council, a function formerly exercised by the king.
So by this time the company had full authority in the prov-
ince.^

The next date of importance in Virginia history is 1618
at which time the affairs of the London Company passed into
the control of the Sandys-Southampton party. This group
was interested in increasing the number of inhabitants of the
colony and in bringing about private ownership of the land,
in contrast to the common ownership of the earliest days and
to the system of manors or "associations of planters" which
was the form private ownership first took when permitted
at all.

Evidently the controlling faction of the London Company
felt that one of the best ways to accomplish its purpose was
to let the colonists share the responsibility of the government.
So when Sir George Yeardley was appointed governor in 1618
his commission is supposed to have authorized him to call an
assembly. As the commission has never been found, the only
contemporary account we have is in a "Declaration by the
Ancient Planters". This reads in part:

". . . that they might have a hand in the governinge
of themselves, it was granted that a general assemblie should
be helde yearly once, whereat were to be present the Gov'r
and Counsell, with two Burgesses from each plantation freely
to be elected by the inhabitants thereof; this Assembly to
have power to make and ordaine whatsoever laws and orders
should by them be thought good and proffittable per our sub-
sistance." ^

Governor Yeardley arrived in the province in April, 1619,
bringing with him what Brown calls "our Magna Charta".^

•Osgood, I, 59.

• The term province is used here as the company was really a proprietor.

• Journal of the House of Burgesses, 1619-1658-9. 36.

• The First Republic in America, 308.

188 VIRGINIA

He sent out his summons commanding the councilors and two
burgesses^ from each plantation to meet at Jamestown on
July 30, 1619 (O. S.). In order to have a proper setting for
our study of Virginia a little space ought to be given to the
geographical units represented in this assembly and the
details of the first sessions so far as we know them.

The settlements by this time extended from the mouth of
the James River to a little above what is now Richmond.
The four main divisions of the province were the City of
Henrico, Charles City, James City, and the Borough of
Kiccowtan. These correspond approximately with the present
counties of Henrico, Charles City, James City, and Warwick,
with the addition of a strip of territory opposite each one on
the right hand bank of the James.

In the first assembly the following units were represented:

1. City of Henrico.

2. Charles City:

(a) Martin's Brandon,^

(b) Bermuda Hundred,
Charles City,

(d) Flowerdieu Hundred,

(e) Ward's Plantation.

3. James City:

(a) James City,

(b) Argall's Gift,

(d) Lawne's Plantation,

4. Borough of Kiccowtan.

In all there were eleven units or divisions of the colony
represented when the roll of the first assembly was called.
The dismissal of the two members noted above reduced this

' The term "borough" was applied by the company to every division whether a hun-
dred, plantation or town and the term "Burgess" originally to every voter within them.
The representatives in assembly were called Burgesses "at the start, not because they were
representatives, but because they were citizens and voters in these boroughs.' Soon,
however, the idea of representation became attached to the word and it continued after
the boroughs disappeared; in fact, down to the Revolution (Journals of the House of
Burgesses, 1619—1658-9, XXVII).

> The representatives from this division were not allowed to be seated.

VIRGINIA 189

number to ten. The assembly of 1619 therefore consisted of
the governor, council, and twenty burgesses. It met in the
church, the council and governor sitting in the choir and the
burgesses in the body of the church.^ The speaker, John
Pory, was not a burgess but a councilor. He was a Cambridge
graduate and had been a member of Parliament for six years."'

None of the acts of this first assembly bear on this study,
but it is significant to note the early assertion of two priv^ileges
or rights which every assembly seemed to feel were funda-
mental. For example, the session was scarcely begun when
the right to pass on the qualifications of members was as-
serted and the two burgesses from Martin's Hundred were
dismissed. The other matter referred to concerned the dis-
allowance of acts passed by the assembly. While it recognized
the right of the company to disallow acts of the assembly it
requested that all acts passed might be considered in force
until notice of their disallowance reached the province.
Then the assembly went one step further, and a bold step it
was, in requesting that it might have the reciprocal privilege
of disallowing any acts of the company's court which it
deemed inapplicable under conditions in the province. The
response of the company to the above requests will appear
later.

The earliest official act, establishing an assembly in
Virginia, which has come down to us, bears date of 1621. On
July 24 of that year year an Ordinance and Constitution of the
Treasurer, Council, and Company in England, for a Council
of State and General Assembly was adopted by the company.
The Council of State was to consist, for the time being, of
the governor and his councilors, all of which were named in
the instrument.

"The other council, more generally to be called by the
governor once yearly, and no oftener, but for very extra-
ordinary and important occasions, shall consist for the present,
of the said council of state, and of two burgesses out of every
town, hundred, or other particular plantation, to he respectively

» The assembly did not become bicameral until about 1680.
'» Brown, 317.

190 VIRGINIA

chosen by the inhabitants: which council shall be called The
General Assembly, wherein (as also in the said council of
state) all matters shall be decided, determined and ordered
by the greater part of the voices then present ; reserving to the
governor always a negative voice." ''

This section also gave the assembly the power to enact such
laws as the "publick weal" demanded and as seemed neces-
sary. No law was to be in force until ratified by a general
quarter court of the company in England. A reciprocal
arrangement was to become effective regarding quarter court
orders in the province

. . . "after the government of the said colony shall once
have been well framed, and settled accordingly."

On . the same day the Ordinance was passed Sir Francis
Wyatt's commission as governor was issued. It contained a
summary^^ of the Ordinance and was the governor's authority
for putting the provisions of that instrument into operation.
When the London company lost its charter in 1624
Virginia became perforce a royal province. No provision was
made for an assembly but Wyatt, who continued in office,
and his Council, were willing to share their power with the
people. Having no authority to summon an assembly he
summoned a representative body in 1625 to which was applied
the name convention. A portion of the writ summoning this
body reads:

"Whereas there are divers important occasions wch hereby
concerne the generall Estate of Ye Colony, These are yt you
cale together all the fremen of ye plantac' under you Comand
And by the maior p'tie of ye voyt (voice) to elect two of ye most
sufficient uppon whose judgements the rest wilbe Contented
to rely ye they Appere at James Cyttie of the 10th of Maye
next ensuinge, where we hope the business will not detain
them above three or fower dyes.'^

The convention drew up a petition to the king and en-
trusted it to former Governor Yeardley, who was elected
provincial agent and instructed to proceed at once to England.
Immediately upon his arrival in October, 1625, Yeardley

"Hening, I, 112.

'« Ibid., 1,113. " Journal of the House of Burgesses, 1619-1658-9, XXX.

VIRGINIA 191

petitioned Charles to permit him to appear before the Privy
Council and present the claims of Virginia. In his petition
to the king he outlined what he wished to present. One of
the things was:

"To avoid the oppression of Governors there; that their
liberty of Generall Assemblyes may be continued and con-
firmed, and that they may have a voice in election of ofilicers
as in other corporations." '•*

Whether Yeardley ever appeared before the Privy Council
does not appear but at any rate he was appointed governor in
March, 1626,^^ and sailed for the province soon thereafter.
He bore no reply to the convention's petition but continued
his predecessor's use of conventions. He died in November,
1627, and was succeeded by Francis West. By this date
Charles had decided to grant the colony the privilege of an
assembly and had sent word to that effect by William Capps,
who arrived in the province in March, 1628. West at once
ordered an assembly for March 20th. ^"^

As this marks the beginning of an unbroken line of as-
semblies this phase of the subject can be left with the state-
ment that an assembly was not summoned yearly as pro-
posed in the Ordinance of 1621, but met at the pleasure of the
governor, which was quite frequently, however, ^^ there being
one hundred and twenty-one sessions between 1619 and 1776.^^

Virginia shows the greatest variation of any province re-
garding the number of burgesses representing each unit of
representation. Two, however, was the usual number
allowed each unit. County representation was established
coincident with the creation of eight counties in 1634.^*
After this date, though, parishes were allowed representation
but this caused much trouble due to the question arising
whether the salaries of parish burgesses were to be paid by
the parish or by the county containing the parish. ^^ After
1669 each county was represented regularly by two burgesses.

X Brown, 643. " Hazard, 230. '« Brown. 648.

" An exception to this, of course, was during the fourteen years preceding Bacon's
Rebellion. One assembly only was elected during that period.

"Chandler, 15. '» Hening, I, 224.

*» For a complete statement regarding the varying number of burgesses, see Chandler,.
15-17, and Miller, Chap. II.

192 VIRGINIA

This now brings us to the particular problem of Virginia's
rule and practice regarding a residence qualification for bur-
gesses. As we might expect, we find this bound up closely with
the question of qualification for electors and this in turn in-
timately connected with the question of the ownership of
property. For a complete statement of all the matters
mentioned above except residence the reader is referred to
Chapters II and III of Miller.

Many laws appear among the statutes of Virginia, during
the provincial period, dealing with the general subject of
elections. No better method of treatment suggests itself
than to take these up chronologically.

It has already been pointed out that during the pro-
prietary period and also during the interval between that and
the establishment of a royal government only residents were
chosen to represent each unit in the House of Burgesses or in
the provincial conventions.

The first election act, bearing on this subject, passed
after Virginia became a royal province was in 1640.^^ This
provided that no sheriff was

". . . to compel any man to go off the plantation where he
lives to choose burgesses."

This plainly provided for residential voting only and residential
voting always carried with it residential representation.
The next act bears date of 1655. It read in part:

"That all persons who shall be elected to serve in As-
sembly shall be such and no other than such as are persons
of knowne integrity and of good conversation and of the age
of one and twenty years — That all house keepers, whether
freeholders, leaseholders or otherwise tenants, shall only be
capeable to elect Burgesses, — Provided that this word house
keepers repeated in this act extend no further than to one
person in a ffamily." ^^

A portion of the above act was repealed by the next as-
sembly in March, 1656, and the right of suffrage was extended
to all freemen by the following provision:

"Hening, I, 227. « Hening, I. 412.

VIRGINIA 193

"Whereas we conceive it something hard and unagreeable to
reason that any person shall pay equall taxes and yet have
no votes in elections, therefore it is enacted by the present
General Assembly, that soe much of the act for chooseing
Burgesses be repealed as excluded freemen from votes. . . ." '^^

The only exclusion of freemen from the privilege of suffrage
under act of 1655 had lain in the phrase "one person in a
family."

This whole matter was cleared up, however, in a very
complete election act in 1658. This was really a restatement
of the acts of 1656 and 1657. The only important change was
that all reference to "householders" and others was omitted
and this clause substituted :

"And all persons inhabitting in this collonie that are freemen
to have their votes in the election of Burgesses. . . ." ^4

In 1670 a freehold qualification for voting first appears
in Virginia. Prior to this date all freemen^^ had exercised the
privilege of suffrage. There had, of course, been no non-
residence representation. But by a freehold qualification for
voting there is recognized the right of property to be repre-
sented and this we have found always brings with it non-
residence voting and usually non-residence representation.

The reason for this change in suffrage qualification is
evident when one remembers that the period from 1660 to
1675 was one of reaction under Governor Berkeley. During
the protectorate Virginia had been practically a free de-
mocracy. But with the reinstatement of a royal governor in
1660 there began a gradual infringement on the rights and
privileges formerly enjoyed by the people, which finally
culminated in Bacon's Rebellion. The royal tone and English
influence in the act of 1670 is very noticeable.

"Whereas the usuall way of chuseing burgesses by the
votes of all persons who haveing served their tyme are ffremen
of this country doe oftener make tumults at the election to
the disturbance of his majesties peace, then by their votes

"Hening, I, 403. '> Ibid., I, 475.

" No act defining the term "freeman" appears in the colonial laws of Virginia. That
the term was synonymous with "free man" seems evident from the opening sentence of
the election act of 1670.
13

194 VIRGINIA

provide for the conservation thereof, by makeing choyce of
persons fitly quahfied for the discharge of soe greate a trust,
and whereas the lawes of England grant a voyce in such
elections only to such as by their estates real or personall
have interest enough to tye them to the endeavor of the
publique good; It is hereby enacted, that none but ffree-
holders and housekeepers who are answerable to the publique
for the levies shall hereinafter have a voice in the election of
any burgesses in this country " ^^

The assembly which met under the influence of Bacon in
1676 passed several measures all tending to relieve the dis-
content of the colonists. One of these acts^^ was the repeal of
the Election Act of 1670 and the extension of the suffrage
once again to all freemen. Another act of this same year
which affects this study was one providing that the burgesses
for Jamestown should be chosen by the

. . . "housekeepers, freeholders and freemen, as are at the
time of such election listed within the bounds aforesaid, and
soe liable to pay levies there, and by none other, any custome
or usage to the contrary notwithstanding." -^

This plainly established residence representation for James-
town as, of course, only those voting there would be eligible
for election.

But Virginia's relief from what many considered an
unjust curtailment of the privilege of suffrage was short lived.
With the reinstatement of Berkeley in 1677, additional
Instructions were sent him from England. The part affecting
this study read:

"You shalbe noe more obliged to call an assembly once
every yeare, but only once in two yeares, unlesse some emer-
gent occasion shall make it necessary, the judging whereof
wee leave to your discretion. Alsoe whensoever the as-
sembly is called ffourteene dayes shall be the time prefixed
for their sitting and noe longer, unlesse you finde goode cause
to continue it beyond that tyme.

You shall take care that the members of the assembly be
elected only by ffreeholders, as being more agreeable to the
custome of England, to which you are as nigh as conveniently
you can to con forme yourself e." ^^

"Hening, II, 280. "Ibid., II, 362.

"Ibid., II. 356. "Ibid., II, 425.

VIRGINIA 195

By the above a freehold qualification for voting and holding
office was established by royal command, and this remained
the practice of the province throughout the remainder of its
colonial existence.

In 1692 an act was passed which contained the form of
return to be used by the sheriffs in reporting the election of
burgesses. As I believe this form shows that only residents
could be returned under it it is given in full :

"By vertue of this writt I have caused to be Summoned
the Freeholders of my county to meet this day being the day
of Anno. At the Courte house of ye saide Countie being

the usuall place for Election of Burgesses and given them in
charge to make Election of two of the most able and discreel
Persons of the said County who accordingly have elected
A. B. & C. D. who have full power and authority for the said
County aforesaid to act and consent to such things which
shall be Ordered and appointed by ye Governor, Council! &
Burgesses at the next meeting and Session of Assembly." ^^

From this date to the adoption of the constitution of 1776
only residents could have been legally elected burgesses by the
various counties. Reasons for this statement will be given in
full later. But at this point, the period from 1670, which
date marks the adoption of a freehold qualification for suffrage,
to 1692 should be examined to see whether it shows that non-
residence representation was practiced even when there was
no law preventing it.

But four instances of non-residence representation appear
during this period. Miles Carey, of Warwick County,^*
represented his own county from 1684 to 1692,^^ but repre-
sented James City in 1693.^^ Since these two were adjoining
counties it might be thought probable that the above was a
result of removal from one to the other or of a shift in boundary
lines between them. But neither seems to have been the case
and so we have a clear instance of non-residence representation.

The above suggests that there are several instances in the
House Journals where the same man represented different

»» Journal of the House of Burgesses, 1659-60—1693, 388-389.
"Colonial Virginia Register, 39; Bruce, II, 577.

"Journals of the House of Burgesses (1659-60—1693). XI, XIII, XIV.
"Ibid., XV.

196 VIRGINIA

counties but merely as the result of the formation of new
counties out of old ones. For example, William Leigh repre-
sented New Kent in the first session of 1692, but Kings and
Queens in the second session of that year and in 1693.^*
Lemuel Moses represented Lower Norfolk almost continuously
from 1661 to 1690, but in 1693 he appears as a burgess from
Norfolk County.^^ William Robinson also represented Lower
Norfolk from 1684 to 1686, but Norfolk in 1691. Arthur
Spicer represented Rappahannock County from 1685 to 1688,
but appears for Richmond in 1693.^^ Likewise William
Colston represented Rappahannock at one time and later
appears for Richmond.

But to return to instances of non-residence representation.
St. Leger Codd, a resident of Northumberland County,^^
represented his own county in 1680-1682,^^ but was also chosen
as the representative of Lancaster County at the same
session. ^^ According to the Journal record he was evidently
given his choice as to which county he would represent.*''
He chose to serve for his home county, but in 1684 he was again
elected to represent Lancaster County and did so in the
assembly of that year.*^ Edward Hill, a member of a prom-
inent family of Charles City County,*^ represented that
county for several years previous to 1679, but in that year he
was a burgess from James City County.*^ He later, 1684,
again represented his home county.** The fourth and last
instance is that of Thomas Matthew, of Northumberland
County, who was a burgess for Stafford in the Bacon As-
sembly of 1676.'»5

" Kings and Queens first represented in second session of 1692.

" Norfolk formed in 1691 from Lower Norfolk (Howes Outline of History of Virginia.
392).

" Richmond County created in 1692 when Rappahannock was extinguished, forming
Essex and Richmond (Howes, 463).

" Bruce, Social Life of Virginia, 63.

"Journals of the House of Burgesses, 1659-60 — 1693), X.

"Bruce, Institutional History of Virginia, U, 421-422.

"Journals of the House of Burgesses (1659-60 — 1693), 122.

«> Ibid. (1659-60—1693), XL

*» Colonial Virginia Register, 36, 42; Bruce, Institutional History, II, 24.

'» Journals of the House of Burgesses (1659-60 — 1693), 126.

"Ibid. (1659-60—1693), XL

«» Bruce, Institutional History, II. 421; House Journal (1659-60 — 1693). IX.

VIRGINIA 197

From this point to the constitution of 1776 there are six
acts bearing on the general subject of elections. An alaborate
act was passed in 1699.'"' This covered practically every phase
of the subject. Voting was confined strictly to the freeholder
of county or town. Nothing was said about the qualifications
for burgesses but the act itself contained the very form of
return writ provided by the law of 1692.

Of the many election acts passed by the Virginia provincial
assembly the only one containing a plain statement regarding
a residential qualification was in 1705. This provided:

"That the Freeholders of every county that now is or
hereafter shall be in this dominion, now have, and hereafter
shall have the privilege and liberty of electing and choosing
two of the m.ost fit and able men of such respectively, to be
present, and to act and vote in all General Assemblies. . . ." "

A later clause of the same act provided that

". . . every freeholder, actually resident within the county
where the election is to be made, . . . shall appear ac-
cordingly, and give his vote " *^

The next law^^ on this subject was in 1736 and it is re-
markable in one particular. While providing for property
representation it limited this in a way that no other colony
did. The preamble stated that the act was called into being
by the fact that much fraud had been practiced by leases and
sales of land upon feigned considerations
. . . "to create and multiply votes". ^"^

So the freehold necessary to carry with it the privilege of suffrage
was definitely stated. One must have one hundred acres of un-
improved land or twenty-five acres of land with a house upon it.
He must have had title to it for at least one year if it had been
purchased. ^^ Had it been inherited this provision was waived.
But here is the point of departure from similar laws in other col-
onies. If the one hundred acres lay in two different counties the
owner could vote only in the county containing the larger part.

"Hening. III. 172-174. "Ibid., Ill, 236. '» Ibid., III. 238.

<• Williamsburg was given representation in 1735. Voting was confined to residents
and only citizens could be chosen burgesses. Hening, V, 205.
«» Hening V, 475-476.
" In the margin of the statute it says, "Residence of one year required".

198 VIRGINIA

While such a provision does not absolutely make im-
possible non-residence voting and non-residence representa-
tion yet the chance of either is negligible. It is hardly probable
that, when a man had but one vote, he would cast that in a
county where he did not live. It seems that one would only
do this when it chanced, as would sometimes, but seldom, be
the case, that he lived nearer the county seat of a county
where he owned property than he did to the county seat of the
county in which he resided.

The Election Act of 1762 would seem, on the face of it, to
give the voters of each county the privilege of electing their
burgesses wherever they chose. ^^ But it contained the pro-
vision of the law of 1736 that the freeholder could vote in but
one county, and it also contained the form of election return
adopted in 1692. In 1769 a long act dififering in no essential
detail from the above act was passed.

Without a checking of the lists of assembly members from
1692 to 1776 the position has been taken that there was no
non-resident representation during this period. The reason
for such is that such representation would have been plainly
illegal as has been shown. Yet in Miller's thoroughgoing
study of the legislature of Virginia this statement is found:

"Residence in the county from which elected was
probably not compulsory, for Patrick Henry was chosen from
Louisa County in 1765, though he was not then a resident of
that county." ^*

W. W. Henry^^ makes the same statement and says that a
former burgess from Louisa County stepped aside so that the
province might have the services of Patrick Henry, who was a
resident of Hanover County. The same author says later that
Patrick Henry moved to "his place" in Louisa County in
1765 and remained there until 1768. William Wirt, however,
in his life of Patrick Henry, which was written after con-
sultation with many men who knew him well, says:

" The freeholders were to have the privilege of electing "two of the most able and
fit men, being freeholders, qualified to vote in such county respectively." (Hening, VII,
517-530.)

"p. 51. "Patrick Henry, Life, Correspondence and Speeches, 61, 70, 123.

VIRGINIA 199

". . , he removed in the year 1764 to the County of Louisa
and resided at a place called the Roundabout." *^

The Assembly of 1765 met on May first and the vacancy
in the representation of Louisa County was not officially
acted upon until that date. The former burgess had been
chosen coroner, which incapacitated him from serving any
longer. An election was ordered to fill the vacancy and on
May 20th Patrick Henry took his seat in the Assembly as a
representative from Louisa County.^^ Even if W. W. Henry
rather than Wirt is correct about the date of Patrick Henry's
removal to Louisa County, it is evident from the above that
there were five months in 1765 in which he might have made
the change of location prior to his election. Taking into con-
sideration the law in the matter, it is altogether probable that
he was a resident of Louisa County when chosen a burgess for
that county.

Virginia's provincial history covered a period of one
hundred and fifty-seven years. During one hundred and
thirty-five of those years she had a residential qualification for
burgesses. Her Revolutionary constitution of 1776 confirmed
this practice and carried it over into the new state government.
Defining the various powers of the new government that
document declared :

Sec. IV. "The Legislative shall be formed of two dis-
tinct branches, who, together, shall be a complete Legislature.
They shall meet once or oftener, every year, and shall be called
the General Assembly of Virginia.

Sec. V. One of these shall be called the House of Dele-
gates, and consist of two Representatives to be chosen for
each county . . . annually, of such men as actually reside
in and are freeholders of the same. . . ." ^^

As our study of Virginia ends at this point it only remains
for brief comment to be made on the preceding pages. As in
other colonies a freehold qualification for suffrage was adopted

"p. 55.

'« Journal of the House of Burgesses (1761-1765), 345, 374. Events must have moved
rapidly, for only nine days later he introduced his famous resolutions against the stamp tax.
" Hening, I, 51.

200 VIRGINIA

in Virginia only when the forces of the royal government were
in the ascendency and those of the assembly on the decline.
Where Virginia differs from other colonies is that in them a
freehold qualification for suffrage brought with it non-
residence voting and non-residence representation. So did it
in Virginia, but for a space of twenty-two years only when the
assembly found a way, evidently intentionally, to restrict
voting to residents without at the same time running afoul
the royal requirement that suffrage must be based on owner-
ship.

During the twenty-two years when non-residence repre-
sentation was allowed we have found only four cases where
the right of choosing a non-resident was exercised by a
Virginia county. Curiously enough in two of these cases it
was James City County, within whose bounds the assembly
met that chose a non-resident. The very fewness of the
cases of non-residence representation is added proof of the
fact mentioned in connection with other provinces that, in
the absence of continual pressure from crown or proprietor
and where there was no city in the province of sufficient size
and importance to dominate the life of the province, the in-
habitants followed the logical and natural course of action in
choosing their representatives in the provincial legislature.

NORTH CAROLINA

The settlements which afterward became the nucleus around
which a new government was formed south of Virginia were
an overflow from the southern counties of that province.
When they were later included in the territory granted to the
Earl of Clarendon and his associates the transfer of authority
over them was marked by even less governmental oversight
and direction than they had previously had. It is not too
much to say that the Albemarle settlements developed
throughout the proprietary period with practically no help
from the proprietors. On the other hand, they felt the re-
pressive hand of the proprietors just as little. The explana-
tion of such a situation is that the Carolina territory was
granted to a group of proprietors instead of to a single one.
So it inevitably followed that no uniform purpose and plan
could obtain in its development.

Colonization began in earnest after Carolina had been
granted to the proprietors in 1663. The charter of that year
contained the usual grant of legislative power to the pro-
prietors. In that portion of the charter directing that the
power of legislation should be shared with the freemen lies
the germ of the North Carolina Assembly. Legislation was to
be by the proprietors.

". . . with the advice, assent and approbation of the
freemen of the said province, or of the greater part of them,
or of their delegates or deputies, whom for enacting of the
said laws, when and as often as need shall require, we will
that the said (here follow the names of all the proprietors)
and their heirs, shall from time to time assemble in such
manner and form as to them shall seem best." ^

A later clause gave the proprietors or their magistrates alone
the right to make laws temporarily,

. . . "because such assemblies of freeholders cannot be so
conveniently called, as there may be occasion to require the
same." -

■ N. C. Col. Recs., I, 23. ' Ibid.. I. 24.

201

202 NORTH CAROLINA

In an attempt to attract settlers to the new province the
proprietors issued in 1663 a "Declarations and Proposals to
all that will Plant in Carolina". One of the promises contained
therein was that there would be an assembly composed of
. . . "Two out of every tribe, division or parish." ^

Governor William Berkeley, of Virginia, was one of the
proprietors. Being near the new province a commission*
was issued him in 1663 authorizing him to commission a
governor for Albemarle River. He could appoint two gov-
ernors if he wished — one for the north side of the river and
one for the south, along with six councilors. The governor and
councilors so appointed were to have the power to make
necessary laws,

. . . "by and with the advice and consent of the freeholders
or freemen or the Major part of them, their deputyes or

deligates."

Berkeley appointed William Drummond governor. It should
be kept in mind that the only people in the province at this
time were those already on the ground when the charter of
1663 was issued.

The Charter of 1665 differed little from the one of 1663.
Under its provisions the assembly in addition to governor
and council was to consist of the

. . . "freemen of the said province or territory, or of the
freemen of the county, barony, or colony, for which such
law or constitution shall be made." ^

The provision enabling the governor and council to legislate
for the time being was worded as in the former charter with
the single change of the word "conveniently" to "suddenly".®
The liberal terms of the Concessions and Agreements
issued the same year as the second charter have often been
commented upon. By some they have been thought to re-
flect the liberal political views of the proprietors. They seem,
however, to have been issued in response to the demands of

» N. C. Col. Recs., I, 45. ' Ibid., I, 105.

*Ibid., I, 48-50. 'Ibid., I, 106.

NORTH CAROLINA 203

the party of Barbadians who were going to make a settlement
near Cape Fear.'' Eleven sections of the Concessions^ were
given to an enumeration of the powers of the assembly. Had
they all been put into operation the assembly in Carolina, as
Osgood points out,

. . . "would have occupied a position where elsewhere it
won only as a result of prolonged effort and the accumulation
of many precedents." ^

The portion of the Concessions bearing on this study read:

"That the inhabitants being freemen or chiefe agents to
others of ye Countyes aforesd doe as soone as this our Com-
mission shall arrive by virtue of a writt in our names by the
Governor . . . make choice of twelve Deputyes or repre-
sentatives from among themselves whoe being chosen are to
joyne with him the s[ai]d Governor and Councill for the
makeing of such Lawes Ordinances and Constitutions as
shalbe necessary for the present good and welfare of the
severall Countyes aforesd but as soone as Parishes Divisions
tribes or districcons of ye said Countyes are made that then
ye Inhabitants or Freeholders of the sevH and respective
Parishes Tribes Divisions of Districcons of the Countyes
aforesd doe . . . annually meete on ye first day of January
and chuse freeholders for each respective denizen Tribe or
parish to be ye Deputyes or representatives of ye same,
which body of Representatives or ye Majr parte of them
shall wth the Governor and Council aforesd be ye Genii
Assembly of the County for which they shall be chosen. . . ."'"

In examining the constitutional background of the North
Carolina Assembly we now come in point of time to the
Fundamental Constitutions, a document inseparably as-
sociated with the name of John Locke. In one way a con-
sideration of this would fit more appropriately into the
chapter of South Carolina, for it was in that province that the
proprietors made their most earnest endeavor to enfocre its
provisions. But since it was meant to apply to the Carolina
territory as a whole, notice must be taken of it here.

This document^^ was feudal and monarchial in character

' N. C. Col. Recs., I. 39-42. '» N. C. Col. Recs., I, 81.

» Ibid., I, 81-84. II Ibid., 1, 187-205.

•Osgood. II, 205.

204 NORTH CAROLINA

and showed a distinct reaction against the liberal spirit which
had characterized the "Concessions". In fact, the avowed
purpose was to make the government of the province

. . . "most agreeable to the Monarchy . . . and that
we may avoid erecting a numerous democracy." ^^

The law-making body was to be called Parliament and it
was to be composed of four groups sitting together but voting
by groups. A majority vote in any one group was sufficient
to defeat a measure. These groups were :

(a) Proprietor's Deputies,

(b) Landgraves,

(d) Representatives.

The qualifications for electors and for representatives
appear in the following:

"There shall be a Parliament consisting of the Proprietors,
or their deputies, the Landgraves and Caciques, and one free-
holder out of every precinct, to be chosen by the freeholders
of the said precinct respectively. They shall sit all together
in one room, and have, every member, one vote.

"No man shall be chosen a member of Parliament, who
has less than five hundred acres of freehold within the pre-
cinct for which he is chosen, nor shall any have a vote in
chooseing the said member, that hath less than fifty acres of
freehold within the said precinct.

"A new Parliament shall be assembled the first Monday
of the month of November, every second year." ^^

A copy of the Fundamental Constitutions was sent to
Governor Peter Carteret of "Albemarle" and his Council in
1670, together with Instructions.^^ The latter states that the
proprietors realize the impossibility of putting the "model
government" into effect at once, so for the present the governor
was to,

". . . Issue out writts to the Power Precints of the
County of Albemarle requiring each of them to elect five
freeholders to be their representatives to whom the five

■» N. C. Col. Recs . I, 188.

i* Ibid., I. 199. "Ibid., I, 181-183.

NORTH CAROLINA 205

persons chosen by us being added and who for the present
represent the NobiHty are to be your Assembly. . . ." '^

The assembly which met as a result of this order was not
the first one for this territory however. Not much is known
of the ones which had preceded it but it is quite certain that
there were sessions in 1665, 1667, and 1669. ^"^ After 1670 the
sessions were quite regular. This date does mark, however,
the first definite authority for the choice of any particular
number of representatives by each election unit.

Prior to 1691 the Albemarle settlements had had a separate
executive from those settlements which had been made near
Cape Fear and farther south. But in this year the pro-
prietors decided to unite the whole colony under one executive
and one assembly. The instructions to Governore Philip
Ludwell are given in the chapter on South Carolina. They
contain a plan for the assembly in which Albermarle County
was to have five representatives, while the same number was
given to each of the three counties which lay in the territory
that later became South Carolina. The proprietors must
have had some doubt regarding the feasibility of this plan, for
on the same date Private Instructions were issued to Ludwell
regarding the constitution of the assembly in case he found it

"Impracticable for to have the Inhabitants of Albermarle
County to send Delegates to the General Assembly " ^^

The governor must have found it "impracticable," for no
attempt seems to have been made to interfere with the
Albemarle Assembly. From this date, however, to 1712
there was one executive. The actual working out of this plan
resulted in the northern part of the colony having as an
executive a deputy governor appointed by the governor at
Charleston. When no deputy governor was appointed, as at
times was the case, executive power was exercised by the
president of the council. Attention has often been called to
this period of neglect on the part of the proprietors, but this
neglect had, without doubt, its compensating features. Thrust

"N. C. Col. Recs., I, 181.

"Osgood, II, 235; N. C. Col. Recs.. I. 183-187. ■' N. C. Col. Reca., I, 380.

206 NORTH CAROLINA

thus practically upon its own resources, the assembly became
accustomed to assuming certain responsibilities which it
would not later surrender.

It was during this period that the first extension of settle-
ment as reflected in the membership of the assembly oc-
curred. At a Palatine's Court held by Governor Archdale
in December, 1696, the county of Bath was created and was
granted the privilege of sending two burgesses to the assembly
which was to meet the following month.

In 1712 Edward Hyde was commissioned by the pro-
prietors as governor of North Carolina. This date, therefore,
marks the complete separation of the two parts of the prov-
ince.^^ Neither Governor Hyde's commission nor that of his
successor two years later contained anything regarding
assemblies which means, without doubt, that the assembly
continued to be elected on the same basis as had obtained
since 1670.

Three years after the separation from South Carolina the
assembly passed a comprehensive election law which is often
referred to in the records of the time as the Biennial Act.
The reason for its enactment was that

". . . frequent sitting of Assemblies is a principal safe-
guard of their peoples Priviledges." ^^

The freemen of the eight precincts mentioned by name,
of Albemarle County-" were to choose each two years,

"five Freeholders out of every precinct." '^

Provision was made that the new precincts should have the
privilege of sending two representatives each.

Qualifications for voting were: twenty-one years of age;
one full year residence in the province and to have paid one
year's levy. No statement appears as to the amount of free-
hold required to make a freeman eligible for election as a

•«N. C. Col. Recs.. I, 731, 775-779. 841. ^^ Ibid., II, 213.

2» The term Albemarle County up to this date was practically the colony name;
in other words, it was synonymous with North Carolina. The precincts were really counties.
Of the eight precincts mentioned in this act seven of them appear as counties on a present-
day map of North Carolina.

2' N. C. Col. Recs., II, 214.

NORTH CAROLINA 207

representative. This act continued to govern elections in the
province until after the transfer of authority from pro-
prietors to the crown in 1729.

The first town to be granted representation in the as-
sembly was Bath in 1715. The act permitting it to send one
representative to the assembly extended the same privilege
to all other towns of the province as soon as

"such Town shall have at least Sixty Families''.-^

The first royal governor, George Burrington, was appointed
in 1730. His commission^'^ authorized him to call General
Assemblies of "Freeholders and Planters", as need might
require. He was cautioned in his Instructions to see that the
assembly was elected "only by freeholders".-' But to obey
his Instructions on this point would bring him into conflict
with the law of the province for by act of 1715 election of
members of the assembly was by "freemen". The governor
soon found this law in his way, for in 1732 he wrote the home
government

. . . "The Biennial Act must be reprealed to bring the
people into good Disposition." ^^

The contest over this matter evidently raised the question as
to what was the constitution of the province, the charters of
1663 and 1665 or the governor's Commission and Instruc-
tions.^^ The governor's suggestion brought action for the
law of 1715 was

. . . "Repealed by his Majesty's order",'^^

but we do not learn just when.

It must have been, however, about at the end of Burring-
ton's adminstration. His successor, Gabriel Johnston, was
commissioned in 1733, but did not assume office until the
following year. His Instructions do not appear in the records
but the Lords of Trade in a letter to the King, July 18, 1733,

» Acts of Assembly of N. C. (Davis Edition). 19.
"N. C. Col. Recs., Ill, 66-73. "Ibid., Ill, 343.

i* Ibid., Ill, 93. ssRaper, 45.

"Laws of N. C. (Iredell-Martin Edition), 9.

208 NORTH CAROLINA

say that they contained no "material alteration"^^ from those
issued his predecessor. Without having that document to
examine we know that if the subject of suffrage qualification
was mentioned a freehold requirement was insisted upon.
During the first year of Johnston's administration an act
setting the qualification of electors and representatives was
passed and received the governor's appro val.^^ No details
about it appear in the records neither is the law given in any
of the editions of colonial laws. This makes it seem probable
that it was disallowed by the king.

This leaves us face to face with the puzzling question as
what rule governed elections, and designated the number to
be chosen from each county, between the repeal of the law of
1715 and the enactment of the one of 1743.

The election act^° of the latter year begins

. . . "Whereas there is no law now in force . . ."

This act covered the whole question of elections. All elections
were to be by ballot. Voting was confined to freeholders who
were compelled to take an oath they had owned fifty acres of
land for at least three months in the county in which they
appeared to vote and that they had been inhabitants of the
province six months. To be chosen a member of the assembly
one must be twenty-one years of age; an inhabitant of the
province one year; and most possess a freehold
. . . "in the county where he shall be elected or chosen"

of at least one hundred acres of land.

So far as we have any record the above act while changing
the whole basis of suffrage in the province did not arouse
serious opposition. The colonists probably bowed before the
constant and irresistible royal pressure which demanded a
property qualification for suffrage. But an election act of
three years later raised a storm which was not quieted for
years.

Governor Johnston summoned the assembly to meet that

" N. C. Col. Recs., III. 497.

"Ibid., IV. 97. 108. »»Laws of N. C. (Swann's Edition), 177-180.

NORTH CAROLINA 209

year, 1746, at Wilmington. This was not the usual place of
meeting and the northern counties, those of the old Albemarle
settlements, refused to send representatives because of the
distance. As a result there was not a legal quorum but that
did not deter the governor nor those members which did
appear. At the time the act was passed there were only four-
teen members present^^ although more appeared later. The
preamble^^ of the act stated that the northern counties were
accustomed to sending five persons to represent them, while
the southern and western counties, which were more numer-
ous and contributed more "to the General Tax" of the prov-
ince, only sent two each. To remedy this situation the repre-
sentation of all counties was limited to two. The effect of this
in the northern counties can be imagined. Petitions and
depositions^^ galore were sent to England in protest. From
one of the former we have a partial answer to the query
raised above regarding the representatives from each county
when there was no law governing the subject. It is said that
the counties of the Albemarle territory had each elected

"five burgesses without intermission continued so
ever since the Establishment of this Government not only
under the late Lords Proprietors but also under your Majesty's
Governors until Nov. 1746." ^*

The act of 1746 was repealed by the crown in 1754 but
during those years the northeastern counties were not repre-
sented in the lower house of the assembly, as they would not
elect fewer than five representatives.^^ Between 1754 and
1775 the former unequal representation was continued.

By 1760 the election act of 1743, which governed elections
after the repeal of the election act of 1746, had become in-
operative, but how or why are questions the records do not
answer. With no law on the subject Governor Dobbs was
at a loss where to turn for authority regarding elections.
He made the very unusual decision, for a royal governor,

"N. C. Col. Recs., IV, 1159. " N. C. Col. Laws (Swann). 223-224.

»N. C. Col. Recs., IV, 1169-1179; For the governor's point of view see Ibid., IV
1163-1166.

>*Ibid., IV. 1158. "Raper, 91.

210 NORTH CAROLINA

that the charters granted the proprietors were in force in the
absence of law on the subject.

His point of view is shown by his answers to a set of
resolutions passed by the lower house of the assembly which
he sent to the Board of Trade:

"14th Resolution That the diversity of the Forms in
writs of election issued to different Counties, some of which
direct the Freeholders and others the Inhabitants in General
to choose, by which last form servants and even Convicts,
may elect "

"Answer: In answer to this I must observe that upon the
repeal of these and several other Laws which depended upon
them, I was at a great loss how to issue the writs as the Law
for Freeholders to elect was then repealed, and therefore I
thought myself obliged to follow the first and second Charters
of the Colony, which power was loged in the Freemen of the
Colony or their delegates, and as I did not advert to the dis-
tinction made between Freemen and Inhabitants as my in-
tention was that all free inhabitants should be Electors, until
a proper law should again fix it to Freeholders. . . ." ^^

This situation was remedied by the Election Act of 1760,
the last one during the provincial period. ^^ The election
machinery provided for by this act differed from that of 1743
but the qualification for voters and for representatives were
exactly the same as in the latter. This act also provided for
non-residence voting in towns in a manner different from
anything noted so far in this study. By the last section of the
act Brunswick was granted representation. To be a repre-
sentative from there one must have owned, for three months
at least, . . .

"... a Brick, Stone or framed House, in the said town,
of the Dimensions of Twenty Feet by Sixteen, with one or
more Brick or Stone Chimney or Chimnies. . . ." ^^

Every tenant of such a house for three months prior to elec-
tion could vote. In case such a house was unoccupied the
owner of the house could vote in the town election.

»«N. C. Col. Recs., VI, 303. " N. C. Col. Laws (Davis Edition), 247-250.
» Ibid. (Davis Edition), 250.

NORTH CAROLINA 211

Nothing further appears among the laws of North Carolina
regarding qualifications for representatives until the Consti-
tution of 1776. But before noting that document we will see
what had been the practice of the colony regarding the use of
non-residents as representatives.

The law of 1715 governed elections until 1735 and to a
certain extent until 1743. Under that law voting was by the
freemen while their choice of representatives was plainly
limited to resident freeholders. But the law of 1743 imposed
the English system of representation upon the colony. Under
this a specific freehold qualification was provided for both
electors and representatives. The working out of such a law
in every colony was that one could vote in whatsoever county
he held a sufficient freehold and was likewise eligible for
election from that county. So the only period which needs to
be examined for non-residence representation is that between
1743 and 1776. A careful examination of the records shows
twelve clear cases of non-residence representation.''^

John Ash, a resident^" of New Hanover County, repre-
sented that county practically continuously from 1752 to
1775, but at a May session of the Assembly in 1759 he repre-
sented Craven County.''^

Tom Barker, a resident^^ of Chowan County, began his
career as a representative by serving for the neighboring:
county of Bertie for the years of 1744 and 1747. Later he
served for Edenton, the principal town of his county, from
1754 to 1757, and for the county of Chowan for 1760 and
1761.^^ Another Chowan resid,ent who represented a neigh-
ing county was James Blount (Blunt). He represented
Chowan in 1764 and from 1766 to 1773, but in 1765 he was
one of the representatives of Perquimans County.^^

" On their face the records seem to show many instances. Some of these are due to
identity of names; removal; change in boundary lines, etc. A few instances which may
have been cases of non-residence representation but which could not be satisfactorily
verified have been omitted.

<» Waddell, History of New Hanover County, I, 166.

" N. C. Col. Recs., VI, 97.

" Grimes, Abstract of N. C. Wills, 8, 123, 281, 349.

"N. C. Col. Recs.. IV, 733, 1181; V, 232, 521, 850; VI, 362, 661.

*< Ibid., VII, 63; XVI. 979; XXIII, 993.

212 NORTH CAROLINA

Richard Caswell was one of the most prominent and most
active public men during the fifteen years prior to the Revolu-
tion. He was also the first governor of North Carolina during
its existence as an independent commonwealth. He was a
resident^^ of Dobbs County in the western part of the state
and represented his county practically continuously from 1760
to the Revolution. But in October, 1769, he represented the
town of New Berne, where the assembly met that year, and
in December of the following year he was the representative
of Bath.46

John Dunn, an official of Rowan County, represented
Anson County in 1762. Later he served for Salisbury, the
principal town of Rowan County.^^

William Hooper, a resident of New Hanover,*^ repre-
sented the town of Campbelton (now Fayetteville) in January,
1773, and his own county in December of the same year.*'

In 1773 Memucan Hunt appears as representative for both
Bute and Granville Counties.^" These were adjoining counties
on the northern border of the state. There is no record in the
House Journal that Hunt had to decide as to which county
he would represent although in two similar cases, which will
be noted later, that was demanded of representatives which
appeared for two counties.

William Maccay's (Mackay) period of service as a repre-
sentative for the county of Tyrrel extended from 1746 to
November, 1762.^^ The only break during this period was in
April, 1762, when he represented Perquimans County.^^

Thomas Macknight, of Currituck County, represented
that county from 1762 to 1775. But in 1773 he was also
chosen as a representative of Pasquotank County. He was
asked to make his choice as to which county he wished to
represent, and, as might be expected, he chose the one in which
he resided. ^^

" N. C. Col. Recs., VIII. p. IV. "Waddell. I, 197, 208.

"Ibid.. VIII. 105, 303. «»N. C. Col. Recs., IX, 448, 734.

"Ibid., V. 320, 828; VI, 801; VIII. 107. "Ibid., IX, 733, 734.

" Ibid., IV. 815, 856; V, 232, 521, 893; VI. 390. 662. 893.

" Ibid., VI. 800.

" Ibid., IX, 452. 635-636.

NORTH CAROLINA 213

A case similar to the above had occurred in 1746. In that
year Samuel Swann, one of the most prominent men of the
province, was elected representative by the county of Onslow,
where he lived and also by New Hanover County.*^ After
being elected speaker he was asked for which county he would
serve and he replied, Onslow; whereupon the clerk was in-
structed to issue writs for a new election in New Hanover.

Edmund Smithwick (Southwick), of Tyrrel County, is
another example of a representative of experience being
chosen by a county in which he did not reside. He was a
representative of his county^^ in nearly every assembly from
1744 to 1771, but in 1766 he represented Northampton
County.^^

An exactly similar instance to the above is that of Edward
Vail, who represented the county of Chowan continuously
from 1754 to 1769 except in November, 1766, when he served
as one of the representatives for Onslow County.^^

Non-residence representation in North Carolina has some
aspects strikingly similar to New England. Men do not
seem to have been chosen as representatives simply because
they were large landowners in the county electing them.
When a county did go outside its bounds for a representative,
a prominent man and one of legislative experience was
chosen. In fact, there must have been some pride, as in New
England, in being represented by a well-known public man.
Otherwise, it is hard to account for Chowan County choosing
John Ash as one of its representatives in 1759, when the
assembly met within its borders, or New Berne's choice of a
non-resident (Caswell) as its single representative in 1769,
or Bath's choice of Caswell the following year as its repre-
sentative.

Election of non-residents also seems to have been as a
result of merit rather than as a result of campaigning. This
fact is shown by the three double elections given above. A
candidate would probably not offer himself in more than one

" N. C. Col. Recs., IV, 815. » Ibid., VII. 342.

» Ibid., IV. VI. VII, VIII. " Ibid., VII. 343.

214 NORTH CAROLINA

county knowing that he would be allowed to serve for but
one. There is a possibility, of course, that this might be
done if the candidate felt he faced possible defeat in his home
county, but there is reason to believe that the three cases
given represent the spontaneous choice by two counties of
the same capable and experienced public official.

In North Carolina, the adoption of its first constitution
brought only a qualified residential qualification for repre-
sentatives. Each county was to have two representatives and
their qualifications were stated in Section Six.

"That each Member of the House of Commons shall have
usually resided in the County in which he is chosen, for one
year immediately preceding his Election, and for six Months
shall have possessed and continue to possess, in the county
which he represents, not less than one hundred acres of Land
in Fee, or for the Term of his own Life."

This constitution retained a slight freehold qualification
for voting for senators. In order to vote for representatives
the qualifications were: 21 years of age; one year resident in
any county; and to "have paid Public Taxes". One meeting
these requirements could vote in the county where he resided.

Non-resident voting was not entirely abolished, however,
for Section Nine specifically provided that every person
paying public taxes in any town entitled to representation
could vote in that town.

How the statement of residential qualification affected the
practice of non-residence representation in North Carolina
is beyond the province of this study, which is supposed to
extend only over the provincial period. The next constitu-
tion of the state, that of 1868, brought North Carolina into
harmony with most of her sister states in requiring a repre-
sentative to be a resident of the county from which he was
chosen. ^^

" This Constitution retained among other qualifications for senators, however, that
the one elected "shall usually have resided in the district from which he is chosen one year
immediately preceding his election". The wording of this requirement was not changed
in the last Constitution, that of 1875.

SOUTH CAROLINA

In the chapter on North Carolina several documents were
mentioned and quoted which bear as closely on the legislative
history of South Carolina as they do on that of its northern
neighbor. These were:

1. Charter of 1663.

2. Declarations and Proposals of 1663.

3. Charter of 1665.

4. Concessions and Agreements of 1665.

5. Fundamental Constitutions of 1669 and 1670

All that has been said in the preceding chapter on the above
instruments applies here. We only need to note in passing
that the first charter contained the germ of the South Carolina
legislature as truly as it did that of North Carolina and that
the proprietors made a much more determined effort to put
the Fundamental Constitutions into effect in South Carolina
than in her sister colony.

Sir John Yeamans was appointed governor of

. . . "the County of Clarendon, near Cape Faire. . . ." ^

in 1665. This was the settlement of Barbadians which the
proprietors had in mind in issuing the Concessions and Agree-
ments. Yeamans had jurisdiction over all the southern part
of the province of Carolina. In an attempt to attract colonists
from England, the proprietors published a description of the
colony in 1666. One of the advantages pictured was that the
colonists chose

. . . "annually from among themselves a certain number of
men according to their divisions"

as an assembly.^ This attempt at settlement was abandoned
in 1667.

About this very time the Earl of Shaftsbury became the
most active proprietor. He was especially interested in the
southern part of the province. So the proprietors began

'N. C. Col. Recs., I, 97. '-Ibid., I, 157.

215

216 SOUTH CAROLINA

laying plans for a settlement at Port Royal. It was in this
connection that Shaftsbury had Locke prepare a form of
government for the whole province but with the new settle-
ment especially in mind. The preparation of such an in-
strument shows that the proprietors, like those of Penn-
sylvania and the Jerseys, thought they could anticipate the
course of natural political development and could mould the
political forms and practices of the colony in advance.^ This
attempt on the part of the proprietors was doomed to failure
but they did not desist for many years. At every attempt to
put any of the provisions of the Fundamental Constitutions
into effect the colonists fell back upon that provision of the
charter of 1663 which promised that legislation was to be by
the proprietors

". . . with the advice, assent and approbation of the
freemen of the said province." ^

Sir John Yeamans, although living in Barbadoes, was still
nominally the governor of Carolina. So when the settlers
constituting the new attempt at colonization left England,
in July, 1669, he was sent a governor's commission in blank
with authority to insert the name of one who he thought
would satisfactorily administer the affairs of the province.

Yeamans named William Sayle. The commission then read :

"To our trusty and Welbeloved Will. Sayle, Esq. Gover-
nor of all that Territory or parte of our Province of Carolina
that lyes to ye Southward & Westward of Cape Carteret. . . ." ^

Accompanying this commission were instructions which took
cognizance of the fact that the Fundamental Constitutions
could not be put into operation immediately. So for the time
being Sayle was instructed:

. . . "to summon ye freehoulders of ye Collony & require
you in our names to elect twenty persons, wch together wth
our Deputys for ye present are to be yr Parliament " ^

Sayle did not carry out the above instructions for the reason,
as he later stated, that the population of the province was

•Osgood, II. 211. «N. C. Col. Recs., I, 23.

• Shaftsbury Papers: Coll. Hist. Soc. of S. C, V, 117.
« Ibid., V, 120.

SOUTH CAROLINA 217

. . . "nott heere sufficient to elect a Parliement."

Dissatisfaction with the governor's failure to act resulted in
election writs being issued by two individuals who had no
authority to do so. The parliament which was elected at this
election was the first one in South Carolina. It met in July,
1670. Since the election was not legally called the governor
did not recognize it. This body is often referred to as "Mr.
Owens' Parliament".^ The first legal Parliament met in
August, 1671, after the arrival of Governor Joseph West.

In 1682 instructions were received from the proprietors
ordering the creation of three counties: Berkeley, consisting
of the territory around Charleston; Craven in the northern
part of the province; and Colleton in the southern part.
Prior to this all elections had been held in Charleston, but
now Berkeley and Colleton each were to elect ten deputies
and elections in the latter county were to be held at London
(Wilton). To make it impossible for one to vote in both
counties, elections were to be held in each on the same day.
This order aroused a storm of protest, especially in Berkeley
County, and the governor disregarded it and held the next
election as usual.

Attention has been called in the chapter on North Carolina
to the fact that the appointment of Philip Ludwell, as governor
in 1691, marked an attempt on the part of the proprietors to
unite both parts of the province under one executive and one
assembly. His instructions after reciting that the patent from
the crown gave the proprietors the right to legislate with the
approbation and consent of the freemen instructed him when-
ever he thought there was need of laws —

". . . to Issue writs to the Sheriffs of the respective
Countyes to choose twenty Delegates for the freemen of
Carolina, viz. five for Albemarle County five for Colleton
County and five for Berkeley County and five for Craven
County to meet and in such place and in such time as you . . .
shall think fit. . . ." «

Sections Twenty-one and Twenty-two set the bounds of the
counties mentioned above, while Sections Twenty-four and

' Shaftsbury Papers: Coll. Hist. Soc. of S. C, V. 176. » N. C. Col. Recs., I, 377.

218 SOUTH CAROLINA

Twenty-five provided representation for new counties as fast
as they were formed.

"And as other Countys come to be planted and make it
appear there is forty free holders in the County you are to
issue Writs in such Countys for the choice of four Delegates
also to represent them in the generall Assembly of the freemen
of the Province and before any County have forty free holders
so as to have Writs directed to it for the choice of Repre-
sentatives for the county they reside in they are to give their
votes for the choice of delegates in the county next to them
that is qualified to choose Delegates." ^

As soon as some new county availed itself of this privilege of
representation the representation of the four counties specified
by name was to be reduced to four each.

Additional instructions issued the same day to Ludwell
ordered that if it proved to be impracticable for Albemarle
County to send delegates to the assembly, Berkeley and
Colleton should choose seven each and Craven six for the
general assembly

. . . "of that part of our province that lyes south and west
of Cape Fear."

This arrangement was to continue until new counties were
formed and the instructions could be put into efi^ect.^" The
issuance of such instructions practically amounted to an
abandonment of the effort to put the Fundamental Con-
stitutions into effect. A contest soon developed between the
governor and the assembly and the latter drew up a set of
grievances. Number six of these was:

"That the Representatives or delegates of the People are
too few in the Assembly and that the People doe not appoint
the number of their delegates according to the King's most
gracious Charter." "

Some time in 1692, whether before or after the adoption of
the set of grievances we do not know, an act was passed re-
garding elections. ^2 As we do not have a copy of this its

•N. C. Col. Recs., I, 378. " Rivers, 434.

"Ibid.. I, 380-381. "Statutes at Large (Cooper Ed.), II. 73.

SOUTH CAROLINA 219

provisions must be surmised from the reasons given by the
proprietors for vetoing it. Referring to this particular law,
in a communication dated April 10, 1693, they said:

". . . which act enabling all persons that take oath that
they are worth tenn pounds, to give their vote for members
of General Assembly, and all the members of the Assembly
for the present being chosen for the Counties, we are of opinion
they ought all to be freeholders that elect, and those act,
not mentioning how long any person worth tenn pounds must
have been an Inhabitant of the County before he be admitted
to vote for members of the Assembly, it is so loose that by this
Act all the Pyrates that were in the Shipp that had been
plundering in the Red Sea had been qualified to vote for
Representatives in Carolina. . . ." ^^

It is clear from the above that the act of 1692 had bestowed
the privilege of suffrage and in all probability the right to be
elected to the assembly upon every freeman who was worth
ten pounds. ^^

The veto of the act of 1692 evidently made the people of
the province all the more determined to decide the qualifica-
tions of electors and members of the general assembly them-
selves. In November, 1695, Governor Archdale in an election
writ to the High Sheriff of Berkeley County says that despite
all his endeavors to settle

. . . "This Province in Peace and tranquility"

he had been frustrated

. . . "by the obstinate majority of the House of Commons."

The writ then continues

"We, therefore, hereby, dispensing with our Power to us
Granted by our Charter, and former Precedents, Command
you to Summon all . . . the freemen Inhabitants of
Berkly County to . . . appear at Charleston, on 19th
day of December next, then and there by a majority of their
voices to agree to and ascertain the number of their Repre-
sentatives for this part of the Province, to consult and advise

>' Rivers, 437.

X This same year the assembly gained the right of sharing the initiation of legislation
with the governor and council.

220 SOUTH CAROLINA

with us about making such laws as shall be necessary for the
safety and defence of this Province " ^^

It should be noted that this summoned all the freemen to
the election of 1695. The assembly which was chosen at that
election passed an election act.^^ The qualifications for
electors were: twenty-one years of age; ownership of fifty
acres of land or personal property to the value of £10; three
months residence in district where vote was offered. No
alien born out of allegiance to the queen was eligible to a seat
in the house. Evidently other qualifications of members were
the same as for electors.

The next election act was in 1704. The qualifications for
electors were the same as in the act of 1696. This act, like its
predecessors, did not prescribe the voting districts nor state
the number of representatives allotted to each county. ^^

By the act of 1716 the parish was made the election unit
of South Carolina. ^^ McCrady says this act

. . . "established the peculiar parish system of South
Carolina which was to last for a century and a half."

Elections were to be held in each parish by the church wardens.
The number of members of the Commons House of Assembly^^
was placed at thirty and apportioned among the parishes.
The qualifications prescribed by the act of 1704 were modified.
An elector must be a white man, twenty-one years of age,
professing the Christian religion, and must have resided in the
province six months. The freehold qualification was removed
but the money qualification raised to £30. In order to be
qualified to sit as a member of the house one must be possessed
of £500 current money in goods or chattels or owner of 500
acres of land. The voter could only vote for members from
the parish wherein he actually resided and the one elected
must have the required financial holdings or freehold in the
parish choosing him.

" Rivers, 439.

"Statutes at Large (Cooper Edition), II, 130; McCrady, South Carolina under
the Proprietary Government, 424.

I' statutes at Large, II, 249. " Ibid., II, 563.

'•This body had different names at different periods. Lower House and Commons
House of Assembly were the ones most commonly used.

SOUTH CAROLINA 221

Under date of July, 1718, the proprietors ordered the
governor among other things to

"Annul also, the two following acts: the one entitled an
act to keep inviolate and preserve the freedom of elections
and appoint who shall be deemed and adjudged capable of
choosing and being chosen, members of the Commons House

of Assembly; . . ." -"

McCrady is the authority for the statement that this meant
going back to the old system of holding all elections at Charles-
ton.-^ The dissatisfaction aroused over the veto of the election
law and some others led directly to the loss of the colony by
the proprietors.

In the meantime the last assembly to meet under the
proprietary government passed another election law.^^ The
change in qualifications for both electors and representatives
was slight. An elector must be possessed of a freehold of
fifty acres or must be paying tax on £50 of personal property.
One so qualified could vote for representatives for the parish
where he actually resided. The property qualification for
representatives was also slightly raised to five hundred acres
of land and six slaves^^ or houses, buildings, town lots, or other
lands in any part of the province to the value of £1,000. This
act also increased the membership of the house to thirty-six
and reapportioned this number among the parishes.

The first royal governor of South Carolina was Francis
Nicholson. He was commissioned in September, 1720,^*
but did not arrive in the province until May, 1721. His
instructions^^ were elaborate, comprising ninety-six sections
and were the basis of the instructions to succeeding governors.
These did not alter the election laws of the province, the only
reference to the assembly being

. . . "Members of Assembly to be elected by freeholders
only." 26

»» Coll. Hist. Soc. of S. C. 1. 166. . . . This referred only to the Act of 1716 which
bore this double title.

"p. 632.

"Statutes at Large (Cooper Ed.). Ill, 50-55.

" The only colony in which this form of property was enumerated as necessary to
qualify for public office.

» Coll. Hist. Soc. of S. C, II. 150.

»Ibid., II. 145-148. "Ibid., II, 145.

222 SOUTH CAROLINA

The first assembly to meet Nicholson passed an election
act (1721).-^ There were two changes in qualifications for
electors. The requirement that one must be paying tax on
£50 of personal property was changed to

. . . "or hath been taxed in the precedent year twenty
shillings or is liable to such a tax the present year."

. . . One so qualified could vote for representatives in the
parish,

"where he is actually a resident, or in any other
parish or precinct wherein he hath the like qualifications." -*

The necessary qualifications in order to be elected to the
Commons House of Assembly were :

that every person who shall be elected and
returned ... to serve as a member of the Commons
House of Assembly, shall be qualified as followeth, viz:
He shall be a free born subject of the Kingdom of Great
Britain, or of the dominions thereunto belonging, or a foreign
person naturalized by act of parliament in Great Britain or
Ireland, that hath attained the age of 21 years, and hath
been resident in this Province for 12 months . . . and
having in this Province, a settled plantation or freehold, in
his own right, of at least 500 acres of land, and 10 slaves, or
has in his own proper person, and in his own right, to the
value of £1000 in houses, buildings, town-lots or other lands
in any part of this province." "-^^

The next law on the subject was passed in 1745.^'' The
preamble warns of the danger of placing the privilege of voting
and of being elected to the Commons House of Assembly in
the hands of those not "amply qualified". The property
qualification of electors was placed at three hundred acres

. . . "on which he pays taxes or hath a freehold in houses,
lands, or town lots, or parts thereof, of the value of sixty
pounds proclamation money, in Charleston, or any other
town in this province, for which he paid tax the present
year "

♦'Statutes at Large (Cooper Ed.), HI, 135-140.

«« The establishment of royal government was thus marked by the initiation of non-
residence voting.

"Statutes at Large (Cooper Ed.), Ill, 137. '<> Ibid., Ill, 656-658.

SOUTH CAROLINA 223

The privilege of voting in whatever parish one had the above
qualification was continued. The only change in the qualifica-
tions for representatives was an increase in the number of
slaves to twenty and a provision that the value of the property
possessed must meet the legal requirement
. . . "over and above what he owes."

The last law on the subject of elections was passed in
1759.^' It made no changes in the qualifications for repre-
sentatives, but the property qualification for electors was
reduced.

In checking the assembly lists for instances of non-residence,
representation the period of 1721 to 1776 has been selected.
It is not claimed the practice began or ended with these dates.
It certainly did not end at 1776, for as we shall see later the
constitution of that year was silent on the matter, while the
one of 1778 definitely provided for non-residence representa-
tion. It is doubtful whether non-residence representation was
practiced to any appreciable extent as long as the unit of
representation was the county. It doubtless did begin w^ith the
establishment of the parish system in 1716. The choice of
1721 as a date from which to begin checking instead of 1716
is due to the fact that parish representation was not firmly
and finally established until the advent of royal government.

Examination of the assembly lists for the years mentioned
above reveals such a number of cases of non-residence repre-
sentation, one hundred fourteen, that it is manifestly im-
possible to enumerate each one in a study of this kind. Below
are given twenty-eight cases, however, which will clearly
show the prevalence and extent of the practice. These
twenty-eight have been selected because each man was
prominent in South Carolina affairs, while some of them
played an important part in the transition period from
province to statehood.

Othneal Beale was a well known Charleston man, being
colonel of a regiment of Charleston militia.^- He represented

"Statutes at Large, IV, 98-101.

'• S. C. Historical and Genealogical Magazine, II, 136.

224 SOUTH CAROLINA

St. Philip's Parish in 1731 and 1733.^3 In 1739 he was elected
to represent St. Thomas and St. Denis but refused to qualify.
From 1745 to 1747 he again represented St. Philip,^^ and in
1751 he was elected by Prince William's Parish but refused
to qualify .^^

Edmund Bellinger, of Charleston, represented St. Andrew's
Parish from 1731 to 1733.^^ In 1748 he was elected to repre-
sent Prince William but refused to qualify. In 1749-50 he
was chosen to represent St. Bartholomew, and in 1762 was
again elected to represent Prince William,^^ but in both cases
he declined to serve.

Daniel Blake, a prominent planter of the province, lived
at Newington and in Charleston.^^ Within a space of eight
years he represented four different parishes: St. Stephan,
1754-55; Prince William, 1755-56; St. Bartholomew, 1757-
58; St. George, Dorchester, 1760-1762.^9

Miles Brewton, a Charleston merchant and later active in
Revolutionary matters,^" was first elected a representative
by St. Andrew in 1763-64, but refused to serve. In 1765 he
represented St. Philip's, Charleston; in 1771, St. John,
Colleton; and in 1772 and 1773, St. Michael.^i

Robert Brewton was a Charleston resident and was at one
time Powder Receiver of the province.^^ He began his
legislative experience as a representative of St. Philip's,
Charleston, in 1733. From 1740 to 1742 he represented
Christ Church, and in 1745 and 1746 St. Thomas and St.
Denis.^^

Thomas Broughton was a Charleston resident but he had
an estate which was probably in St. John's Parish, Berkeley.

"Assembly Journal (1728-Sept. 1733). 609; (1733-1734), 6.
>*Ibid., XII. 135; XXI. 1; XXII. 6.
» Ibid., XXVII. 23.

"Ibid. (1728-Sept. 1744), 609; (1733-1734). 6.
" Ibid., XXIII. 120; XXV. 44; XXXV, 6.
»«S. C. Mag.. I. 160.

••Assembly Journal, XXX, 60; XXXI. 3; XXXII. 1; XXXIV. 1.
•»S. C. Mag.. I. 143.

"Assembly Journal. XXXVI. 41; XXXVII. Part 2. 1; XXXVIII. 460; XXXIX,
Index.

"S. C. Mag.. II. 130. 131.

"Assembly Journal (1733-1734), 6; XIII, 235; XIV, 4; XVII, Preface; XXI, 1, 233.

SOUTH CAROLINA 225

In 1725 he was elected representative by St. John and St.
Thomas and St. Denis, but he chose to represent St. John.
He later represented the same parish in 1742, 1743, and 1746.'**
William Bull was one of the most prominent men of the
province during the first half of the eighteenth century. He
was a graduate of Leyden in medicine. The family estate was
Ashley Hall on the Ashley River in St. Andrew's Parish. He
was a member of the Commons House of Assembly con-
tinuously from 1739 to 1750. During that time he was
chosen speaker several times. He represented his home
parish from 1739 to January, 1742, and again in 1746-47.'**
The other parishes he was elected to represent at different
times were:

St. John, Berkeley, (Sept.) 1742 to 1743.

Prince William 1745.

Prince William 1 748.

St. Bartholomew 1748 and 1749.

(Chose to represent the latter in 1748.)

Prince William 1 749.

(This year he chose to represent Prince William.)''*'

Sir John Colleton, whose plantation was Fair Lawn in
St. John's Parish, Berkeley,*^ represented that parish from
1762 to 1764, but in 1765 represented St. Helena.''^

Daniel Crawford, of Charleston, was chosen as repre-
sentative by several of the outlying parishes before he ever
represented a parish of his own city, St. Philip's, in 1757 to
1759. Prior to those dates he had been elected by Prince
Frederick in 1742, 1748, 1749 and 1749-50 (refused to qualify
for the last two sessions) , and by St. James, Santee, in 1 746-47/^

Thomas Drayton, one of the most prominent men in early
South Carolina history, lived most of the time^" on his planta-
tion on the Ashley River in St. Andrew's Parish. He repre-

" Assembly Journal, VII, 83; XVIII, 3; XIX, 1; XXIII, 1.
"Ibid., XII. 95; XIII. 245; XIV, 4; XVII, Pref.; XXII. 3.
"Ibid.. XVIII. 3; XIX, 1; XXI. 1. 37; XXIII, 22, 25. 32; XXIV, 32, 36, 48.
"S. C. Mag., I, 337.

"Assembly Journal, XXXV, 1; XXXVI, 17; XXXVII, Part 2. 1.
«»/Wd., XVIII, 3; XXII, 3; XXIII. 1; XXIV, 118; XXV. 27; XXXII, 1; XXXII.
Part 2, 0.

•» It should be borne in mind that most of the wealthy planters of South Carolina
had a Charleston residence in addition to their plantation residence or residences.
15

226 SOUTH CAROLINA

sented his parish continuously from 1739 to 1745. In 1746
(March) he was chosen by both St. James and St. Paul. He
chose to represent St. James. From 1746 to 1748 he repre-
sented his home parish, but in 1749 he was elected representa-
tive by both it and Prince William but he chose to serve for
his home parish. For the session of 1749-50 he was again
elected by these two parishes but he again chose to represent
the parish where he resided. ^^

Christopher Gadsen, merchant and planter and one of the
best educated men in the province, later prominent in the
Revolution,^2 represented St. Philip's, Charleston, probably
his home parish in seven assemblies between 1757 and 1773,^'
but in 1762 and again in 1765 he represented St. Paul's
Parish.^"

David Graeme, of Charleston,^^ represented Christ Church
Parish continuously between 1754 and 1761. At the election
for the assembly of 1760-61, however, he was also elected by
Prince William but chose to represent Christ Church.^^

James Graeme was a prominent royal official having been a
member of the council and chief justice of the province. In
(September) 1742 and again in 1743 he represented St.
Philip, Charleston. From 1749 to 1751 he represented St.
George, Dorchester.^^

The place of residence of Edward Harleston can not be
positively stated but it was probably in the parish of St.
Thomas and St. Denis. He represented that parish from
1745 to 1747. In the election for the assembly of 1746-47 he
was also elected by St. John, Berkeley, but he chose to repre-
sent St. Thomas and St. Denis. The next year (1748), how-
ever, he did represent St. John.^*

»• Assembly Journal XII. 95; XIII. 245; XIV, 4; XVII. Pref. XXI, 1. 348, 367, 451;
XXII, 3; XXIV, 26, 418; XXV, 1, 147.

« Coll. His. Soc. of S. C, IV.

"Assembly Journal, XXXII, 1; XXXII, Part 2, 1; XXXIII, Part 2, 3; XXXVII.
Part 3, Pref.; XXXVIII, 8; XXXIX, 1; XXXIX, Part 2, Pref.

" Ibid., XXXV, Part 2, 1; XXXVII, Part 2, 1.

"S. C. Mag., III. 62.

••Assembly Journal, XXX, 263; XXXI, 3; XXXII, 27; XXXII, Part 2, 0; XXXIII,
Part 2, 7.

»'/6J<i., XVIII, 3; XIX, 1; XXIV, 89; XXV, 1; XXVI, 5.

»»/6id., XXI, 1, 226; XXII, 3, 10, 95; XXIII, 1.

SOUTH CAROLINA 227

David Hext, of Charleston,"^ had such a long and varied
career as a representative in the assembly that it will be given
in outline form. He represented :

St. James, Goose Creek 1739.

1740.

1740-41,
(Jan.)... 1742.

St. John, Berkeley (Sept.) 1742.

Prince Frederick 1745.

Prince Frederick (Jan.) 1746.

(Chose to represent Prince Frederick.)

St. Bartholomew (Jan.) 1746.

St. Philip, Charleston 1746 to

1751.

In 1751-52 he was chosen a representative by St. John,
Colleton, but refused to qualify.^"

Major Elias Horry, of Prince George Parish, was much in
demand as a representative, but he seems to have been very
averse to serving judging from the number of times he re-
fused to qualify. He was first elected a representative by
St. James, Santee, in 1740, but refused to qualify. In 1743
he was chosen by his own parish but again refused to qualify ."^^
But in 1745 and 1746 he did represent his home parish. In
1746-47 he was again elected by St. James, Santee, and again
refused to qualify, but at the new election which was ordered
to fill the vacancy he was again elected and evidently took his
seat. In 1748 he was reelected by St. James, Santee, but
refused to qualify. For both the session of 1749 and the one
of 1749-50 he was elected by Prince Frederick but both times
he refused to serve.^^

Ralph Izard, of Burton, St. George's Parish,^^ was first
elected representative by St. Bartholomew in 1745. In
January, 1746, he was elected by both St. Helena and St.
George, Dorchester, but refused to qualify for either. In

"S. C. Mag., VI. 35.

«° Assembly Journal XII, 95; XIII, 245; XIV, 4; XVII, Pref.; XVIII 3- XXI 1
85, 90, 101; XXII, 3; XXIII, 1; XXIV. 8; XXV. 1; XXVI. 5; XXVII, 202. ' '

'^ Ibid., XIII, 422; XIX, 49; XXII, 97.

" Ibid.. XXI, 1, 232; XXII, 3, 272; XXIII, 122, 330; XXIV, 18; XXV, 27.
•»S. C. Mag., II. 233.

228 SOUTH CAROLINA

the assembly of 1746-47 he did serve for St. George, Dor-
chester, and was again elected by that parish in 1748 but
refused to serve. From 1756 to 1761 he represented St.
George, Dorchester, continuously.^*

Another member of the Izard family who had a long
record as a representative was Walter Izard. He lived at
Cedar Grove in St. George Parish. His name sometimes
appears in the records of the time as Walter Izard, Jr., or
Colonel Walter Izard. His legislative experience began by
his representing his parish in 1746. In 1749-50 he represented
Prince William, and in 1754-55 and again in 1755-56 St.
James, Goose Creek. In the election for the assembly of
1757-58 he was elected both by his own parish and by St.
James, Goose Creek. He chose to serve for his own parish. ^^

Captain John Lloyd, who lived in Amelia Township^^
now Calhoun County and who took an active part in the
military affairs of the province, represented St. Helena from
1748 to 1751. For the session of 1754-1755 he was chosen by
both St. Andrew's Parish and St. John, Colleton. He took
his seat as a representative of the latter and continued to
serve for it until 1757 when he declined to serve after being
elected for that session.^^ In 1768 and again in 1769 he repre-
sented St. Michael's Parish.

Gabriel Manigault, a Charleston merchant, and a member
of one of the best known families of the province, first served
in the assembly for St. Philip's parish in 1733 and again in
1745. In 1748 and from 1751 to 1753 he represented St.
Thomas and St. Denis. For the session of 1751-52 he had also
been elected by St. Philip's but had chosen to serve for St.
Thomas and St. Denis. ^^

Peter Manigault, also a Charleston resident, began his
legislative experience by serving for his home parish, St.

««AssemblyJournal. XXI. 1.35. 53. 79; XXII. 3; XXIII, 16, 48; XXXI, 5; XXXII,
1; XXXII. Part 2, 0; XXXIII, Part 2, 3.

'■'Ibid.. XXI, 79; XXV. 543; XXX. 2; XXXI, 2; XXXII, 1, 5.

"S. C. Historical and Genealogical Magazine, III. 98.

"Assembly Journal. XXIV, 34; XXV. 1; XXVI. 5; XXX. 17. 20. 31; XXXI, 3;
XXXII, 1.

"Ibid., XXI, 1; XXIII, 1; XXVII. 5. 8. 33; XXVIII. 5.

SOUTH CAROLINA 229

Philip's, in 1755-56, but from that date until 1772 he repre-
sented St. Thomas and St. Denis almost constantly. During
seven years of this time he was the speaker of the house.^^

Isaac Mazyck, of Charleston, had one of the longest
legislative records of any man in the province and certainly
the most varied record as a non-resident representative.
From 1740 to 1742 he represented his home parish, St. Philip's.
In September, 1742, however, he was elected by three parishes,
St. Philip's, Prince George, W.inyaw, and St. John, Berkeley.
He chose to serve for Prince George. In 1745 he represented
Prince Frederick. In the session of 1746-1747 he was elected
by St. John, Berkeley.^" While serving for the latter he was
elected in January, 1747, as the representative of St. James,
Goose Creek. He chose, however, to continue to serve for
St. John. In 1748 he was again elected by three parishes.
Prince Frederick, St. James, Santee, and St. John, Berkeley.
He chose to serve for the first one mentioned. Prince Frederick
elected him again in 1749, but he refused to qualify. He did
represent that parish the following session but refused to
qualify for the session of 1750-51. In the session of 1752-53
he represented St. James, Goose Creek, and in that of 1756-57
St. Thomas and St. Denis. From 1758 to 1771 he represented
St. John, Berkeley, almost continuously. '^^

The election of James Michie as a member of the Commons
House of Assembly could scarcely have been possible in any
other colony. Michie was a royal official, an appointee of the
crown, yet he represented St. Philip's in six assemblies, two
of which he was speaker. Moreover, for two of these as-
semblies he was chosen by outlying parishes, St. Helena in
1751 and Prince William in 1754,'^- but in each case he chose
to serve for St. Philip's.

Henry Middletown, who lived at Middletown Place, ^^

••Assembly Journal, XXXI. 3; XXXII-XXXIX.

'»/6irf.. XIII, 245; XIV. 4; XVII, Preface; XVIII, 3, 15, 17,25,40; XX, 1; XXII,
3, 270, 283.

" Ibid.. XXII, 3, 270. 283; XXIII. 1. 9. 11, 13. 32; XXIV, 18; XXV, 1; XXVI. 5;
XXVIII, 5; XXXI. 25; XXXII. 1; XXXIII. Part 2. 3; XXXV. 1; XXXVII. Part
2, 1; XXXVIII, 29, 470.

"Ibid., XVIII, 3; XIX, 1; XXVII. 5, 91; XXVIII, 1; XXX, 2, 24.
"S. C. Magazine, I, 239.

230 SOUTH CAROLINA

was perhaps the largest landholder in South Carolina. It is
said he had fifty thousand acres distributed among twenty
plantations and manned by eight hundred slaves. He never
represented any parish but St. George, Dorchester, for which
he served in six sessions of the assembly between 1742 and
1756,^'* but in 1749 and again in 1749-50 he was elected to
represent St. James, Goose Creek, but each time he refused to
qualify. ^^

Another prominent member of the Middletown family was
Thomas Middletown. He was a merchant, banker, and
planter, and made his home at Charleston and Beaufort. ^^
His early years in the assembly were as a representative from
St. James, Goose Creek. He represented this parish from
1742 to 1748. From 1751 to 1753 and again in 1755 he repre-
sented St. Bartholomew. In 1757 and 1758 he was elected
for Prince William and for the session of 1760-61 he was chosen
by both Prince William and St. Helena. He chose to repre-
sent the former. In 1762 he was elected by both St. Philip
and St. Michael, but chose to serve for the latter.'^^

William Moultrie represented St. John, Berkeley, con-
tinuously from 1751 to 1759. ^» In 1761 and again in 1762 he
represented Prince Frederick, and in 1763 St. Helena. In
1765 he was again chosen to represent Prince Frederick, but
did not take his seat as he removed from the province to be-
come Chief Justice of East Florida.''^

Charles Pinckney, a Charleston lawyer, represented
Christ Church Parish from 1753 to 1759. In 1760 he repre-
sented St. Philip's; from 1761 to 1765 he was one of the
representatives of St. Michael's, while from 1768 to 1773 he
represented St. Philip's again. ^"^

"Assembly Journal, XVIII-XXXI.

"/fttrf.. XXIV. 24; XXV, 194, 213. " S. C. Magazine, I, 261.

"Assembly Journal, XVIII, 3; XIX, 1; XXI, 1; XXII, 3; XXIII, 1; XXVII. 5;
XXVIII. 5; XXXI, 3; XXXII, 1; XXXIV, 1, 3; XXXV. 1. 5.

"/fcW., XXVII-XXXII.

^'Ibid., XXXIV. 236; XXXV, 1; XXXVI, 2S6; XXXVII, 8.

"Ibid., XXX, 4; XXXI, 3; XXXII, 1; XXXII-Part 2, 0; XXXIII, Part 2, 3;
XXXIV, 1; XXXV, 1; XXXVII, Part 2, 1; XXXVII, Part 3. Preface; XXXIX. 1;
XXXIX, Part 2, Preface.

SOUTH CAROLINA 231

Andrew Rutledge was another Charleston lawyer who had
a long career as representative in the assembly. His term of
service covered the years 1733 to 1753.*^ During this whole
period he served Christ Church Parish except in the assembly
of 1745 and 1746 when he represented St. John, Colleton. ''^

John Rutledge, later famous because of the part he played
in the separation of the colonies from England, served Christ
Church Parish as a representative continuously from 1760
to 1773.^ In 1762 he was elected a representative by St.
Paul's Parish but he refused to serve.**

It will have been noted already that non-residence repre-
sentation was practiced in South Carolina to a greater extent
than in any of her sister colonies. What is the explanation of
this? In the first place we have already noticed that whenever
a colony or province contained a city which dominated the life
of the province that the prominent men, lawyers, and mer-
chants, of that city were freely used by outlying communities
as their representatives. Charleston dominated the life of
South Carolina as no other city in any one of the thirteen
colonies dominated the life of its colony.

Moreover, no other colony had such a system of estates as
did South Carolina. It is scarcely putting the matter too
strongly to say that practically every family of importance
had its town home as well as its plantation home and this
town home was, of course, in Charleston.

Then there is one other factor which doubtless influenced
the practice. That is the point which Professor McCrady has
emphasized, that South Carolina was closer and in more
frequent intercourse with England than she was with her
sister colonies. This could not help but aff'ect her political
practices.

The adoption of a Revolutionary Constitution by a colony
or province generally ends our study of that colony. But not
so in the case of South Carolina. The constitution of 1776^^
was adopted by a congress on March 26 of that year. Section

"Assembly Journal, XIII-XXVIII. " /6»rf.. XXXV. 1. 8.

"Ibid., XXI. 1, 224. "Statutes at Large. I, 131-132.

"Ibid., XXXIV-XXXIX.

232 SOUTH CAROLINA

eleven provided for a biennial assembly which was to consist
of the same number of members as the congress which framed
the instrument. This number was apportioned among the
parishes. The methods of election and the qualifications for
electors and representatives were those of the law of 1759.

The above constitution, like most of the Revolutionary
ones, was hastily drawn and was not submitted to the people
for ratification. So two years later, 1778, another constitu-
tion was adopted which was unique from the standpoint of
this study in that it definitely provided for non-residence
representation. After naming the parishes of the state and
enumerating the number of representatives to which each was
entitled the qualifications of electors and representatives were
stated in the following language :

"The qualification of electors shall be that every free
white man, and no other person, who acknowledges the being
of a God, and believes in a future state of rewards and punish-
ments, and who has attained to the age of one and twenty
years, and hath been resident and an inhabitant in this state
for the space of one whole year . . . and hath a freehold
at least of fifty acres of land, or a town lot, and hath been
legally seized and possessed of the same at least six months
. or was taxable the present year ... in a sum
equal to the tax on fifty acres of land, . . . shall be deemed
a person qualified to vote for ... a representative, or
representatives, to serve as a member or members in the
senate and house of representatives, for the parish or district
where he actually is a resident, or in any other parish or
district in this state where he hath the like freehold . . .
No person shall be eligible to sit in the house of representa-
tives unless he be of the Protestant religion, and hath been a
resident in this state for three years previous to his election.
The qualification of the elected, if residents in the parish or
district for which they shall be returned, shall be the same as
mentioned in the election act, and construed to mean clear
of debt. But no non-resident shall be eligible to a seat in the
house of representatives unless he is the owner of a settled
estate and freehold in his own right of the value of three
thousand and five hundred pounds currency at least, clear of
debt, in the parish or district for which he is elected." *"

"Statutes at Large. I, 140-141.

SOUTH CAROLINA 233

In the above it is interesting to note the very heavy
property quahfication demanded of one who wished to stand
for election as a non-resident in comparison to the property
quahfication of a resident candidate. While the actual work-
ing out of this new law regarding representation is beyond the
province of this study it is quite evident that under it the vast
majority of representatives chosen by the parishes would be
residents. But it is just as evident also that the big plantation
owners, who owned land in several parishes and who lived most
of the year in Charleston, would continue to be chosen at
times as the representatives of parishes where their holdings
lay. Such was the law in South Carolina regarding the
residence of representatives until Article I, Section 13, of the
Constitution of 1865 established a residence qualification."

•' Non-residence voting had been abolished by law in 1833 (Statutes at Large, I, 199).

GEORGIA

The legislative history of Georgia differs from that of any
other province. The charter to Oglethorpe and his associates
constituting them

. . . "The Trustees for establishing the colony of Georgia
in America,"

gave the company the express right to make laws for the
province. An assembly of the freemen or freeholders of the
province was not mentioned. Under this instrument the
people had no voice in making the laws under which they
were governed. In fact, there were practically no laws.
Each emergency in the province was met by specific directions
from England. In twenty years only three laws were passed
by the company; one relating to Indian trade, one to sale and
importation of rum and one to slaves.^

As is well known, the charter of 1732 limited the authority
of the Trustees to twenty-one years.^ After that period all
the powers and privileges of the company in the province
were to pass to the king. As we shall see later the trustees
even before this period had elapsed were more than willing to
be free from the burdens which the province brought them.
Reference to an assembly in the charter of 1732 was probably
purposely omitted in the hope of avoiding the contests over
provincial matters which such a body always caused. Ex-
perience of a few years, however, caused some members of the
company to see the other side of the question, that is, the
advantages of an assembly.

The matter is first mentioned in 1750 in a report to the
Common Council of the company by a Committee of Cor-
respondence which had been appointed to make a complete
study of conditions in the province and to report with sug-
gestions as to methods of improvement. The report in brief
was that in view of the scattered settlements in Georgia and

• McCain, 176.

» Digest of English Statutes in force in Georgia (Schley Edition), 429-446.

234

GEORGIA 235

the need of the trustees to be better informed regarding the
true state of the province, the committee wished to introduce
a set of resolutions. These read in part:

"Resolved.

"That an Assembly be formed and authoris'd to meet in
the Town of Savannah in Georgia every Year at the most
leisure time; And such time as shall be appointed by the
President and Assistants; No such Meeting to continue
longer than three Weeks or a month at furthest.

"That Every Town or Village or District in the Province,
where ten Families are settled, be empower'd to depute One
Person, and where thirty Families are settled to depute two
Persons to the said Assembly." ^

Later clauses of the resolutions stated specifically that

. . . "The Assembly can only propose, debate and repre-
sent to the Trustees"

those things which were for the benefit

. . . "not only of each particular Settlement, but of the
Province in General".

From this it will be seen that no body with legislative powers
was planned.

For membership in this body which was to meet annually
there were to be no qualifications the first year. After 1751
each member must have one hundred mulberry trees upon
every tract of fifty acres which he possessed. After 1753 no
one could be elected a member who had not conformed to the
law limiting the number of slaves one could own in proportion
to his white servants; who did not have at least one female
in his family instructed in the art of reeling silk; and who
did not produce fifteen pounds of silk yearly for each fifty
acres which he possessed.'* Four settlements were mentioned
by name as being of sufficient importance to be represented.
But this list was not mandatory, simply suggestive. The
application of the general rule regarding representation was
to be left in the hands of the executive officer of the colony,

'Ga. Col. Recs., II, 498-499. * Ibid., II, 500.

236 GEORGIA

which was the governor, or in his absence, the president of the
council.

This proposal after being approved by the Common Coun-
cil was adopted by the Trustees, on June 26, 1750.^ Word was
at once sent to the province and an assembly met on January
15, 1751. It was composed of sixteen deputies representing
eleven villages or districts. The growing demand in the
province for a voice in their own afifairs is shown by the
assembly's request of the privilege of making "by-laws" to
be in force in the province until disapproved by the Trustees
The request was not granted. This account of the first as-
sembly of Georgia has been given not because it is integrally
related to the assemblies which later met under royal authority
but because it furnished several important precedents which
were evidently taken into consideration when King George
decided to grant the province an assembly.

According to the terms of their charter the authority of the
Trustees did not expire until June 9, 1753, but by June, 1752,
they had determined to surrender the charter. In the interim,
while a form of government was being determined upon,
authority in the province was exercised by the president and
assistants. In March, 1754, the Lords Committee of Trade
and Plantations submitted a plan*' of government to the king
which was approved in August. Captain John Reynolds was
appointed governor and the government was transferred to
him by the president and assistants on October 30, 1754.

In suggesting a plan the Lords Committee gave its opinion
that of the different constitutions in America that form of
government in those colonies more immediately subject to
the crown was "the most proper form of government" for
Georgia. A council of twelve, similar in power and con-
stitution to that of the other provinces, was suggested, and a
governor

. . . "with powers and directions to call an assembly to
pass laws. . . ."

•McCain. 191.

• Jones, I, 460-461.

GEORGIA 237

As has been said above the suggested plan was adopted.
Legislative authority was divided into three parts :^

(1) King's Governor,

(2) King's Council,

(3) Commons House of Assembly.

The formation of election districts as well as the length of
time each member should serve were evidently left to the
governor, an inheritance from the assembly of 1751. All
secondary sources definitely state or imply that Governor
Reynolds' Instructions contained the qualifications for electors
and for members of the Commons House of Assembly.^

Shortly after arriving in the province Governor Reynolds
issued writs to twelve communities or villages for the election
of eighteen representatives. The writs contained the qualifica-
tions for both electors and representatives. To vote one had
to be twenty-one years of age and be in possession of fifty
acres of land in the parish or district where he offered to vote.
To be eligible for election as representative one had to own
five hundred acres in any part of the province.^ The above
are the familiar royal requirements for suffrage; permitting
both non-resident voting and non-resident representation.

The assembly which met in response to the above call,
convened at Savannah, January 7, 1755. Although the
people of Georgia had had no legislative experience the first
assembly took a position, almost from its opening day, which
brought it into line with the other provincial assemblies and
also brought it into conflict with the governor. This was the
assertion of its right to pass on the qualifications of its mem-
bers. Governor Reynolds said of them:

". . . they expect to have the same privileges as the
House of Commons in Great Britain." '"

On January 29, a Remonstrance and Address to the king was
drawn up asking for the privilege of determining the suffrage

'Ga. Col. Recs.. XIII. 3.

' I have failed to find the Instructions. They do not appear in the Georgia Colonial
Records, neither is such a manuscript listed by Professor Andrews as being in the Public
Record Office. (Annual Report American Historical .Association, 1913, 321-406.)

•Ga. Col. Recs.. XIII, 3. '» Doyle, I, 405.

238 GEORGIA

qualifications of the province." Later a memorial was
adopted complaining of the qualifications under which the
members of the first assembly were elected. The burden of
this complaint was that it both disfranchised and made in-
capable of being elected representative those whose property
happened to be located in a town. Stevens says this was
remedied but nothing appears in the records regarding it.*^
In fact, the first and only law on the subject of suffrage re-
tained the original requirements.

The law referred to was passed in 1761. Its title was:

. . . "An Act to ascertain the manner and fform of electing
Members to represent the Inhabitants of this Province in
the Commons House of Assembly". ^^

The preamble stated the manner of electing and the qualifica-
tions of electors and members had never been determined by
law. The qualifications for voting were: twenty-one years of
age; six month's residence in the province; legal possession
of fifty acres of land in the "Parish, District, or Village"
where one offered his vote. In addition the elector was
compelled to make oath that his freehold had not been made
over to him on purpose to qualify him for voting.
The qualifications for a representative were:

"That he shall be a free-born subject of Great Britain or
of the dominion thereunto belonging or a fforeign person
Naturalized professing the Christian Religion and no other
and that hath arrived at the Age of Twenty One Years and
hath been a Resident in this Province for twelve Months
before the date of the said Writ and being legally possessed
in his owm Right in this Province of a Tract of Land con-
taining at least ffive Hundred Acres." ^^

It will be noted that this law did not change suffrage
requirements from those laid down in the writs issued by
Governor Reynolds. As this was the only election act passed
by the Georgia legislature prior to the Revolution non-
residence representation was legal in the province from the

" Ga. Col. Recs., XIII, 42. " Ga. Col. Recs., XVIII, 464-472.

"Stevens, I, 412. "Ibid., XVIII, 467.

GEORGIA 239

first assembly until the Constitution of 1777. Investigation
shows that it was also practiced to a considerable degree.
Before giving the instances of non-residence representation
it has been thought wise to make a statement about the
districts represented in the Commons House of Assembly.
The parishes have all disappeared as have many of the
villages which were represented prior to 1775. The following
table contains the places, either parishes or settlements
within the parishes, with their positions on a modern map,
which were represented during the period under consideration:

Christ Church Parish:

1. Savannah.

2. Acton, rural settlement south of Savannah on Vernon

River.

3. Vernonburg, rural settlement south of Savannah on
Vernon River.

4. Sea Islands. At mouth of the Savannah.

5. Little Ogeechee. Settlement on river of that name
twenty miles south of Savannah.

St. Matthew's Parish:

1. Abercorn. Fifteen miles above Savannah on river.

2. Ebenezer. Three miles south of Abercorn.

3. Goshen. Ten miles south of Ebenezer.

St. George s Parish. Now Burke County.
1. Halifax. Now Waynesborough.

St. Paul's Parish:

1. Augusta.
St. Philip's Parish:

1. Great Ogeechee. Settlements on that river. In-
cluded Ossabaw Island.

St. John's Parish. Now Liberty County. Included St.
Catherine's Island.

1. Midway.

2. Sunbury.

240 GEORGIA

St. Andrew's Parish. Now Mcintosh County. Included
Sapelo Island.
1. Darien.

St. James' Parish. St. Simon's Island.
1. Frederica.

St. David's Parish. Northern Part Glynn County.

St. Patrick's Parish. Southern Part Glynn County.

St. Thomas' Parish. Northern Part Camden County.

St. Mary's Parish. Southern part Camden County with
islands adjoining.

The instances of non-residence representation which
follow have been grouped into two classes:

(a) Those showing representation of different settlements,
within the same parish. .

(b) Those showing representation of different parishes or
of settlements within different parishes.

Philip Box, whose place of residence is uncertain, repre-
sented Vernonburg in 1768 and Acton in 1769 and 1771.
These were neighboring settlements on the Vernon River. *^

Jonathan Bryan, a prominent resident of Savannah^^
and later active in Revolutionary matters, represented Little
Ogeechee in 1770 and Savannah in 1771 and 1772.'^

Lewis Johnson, whose place of residence cannot be defin-
itely determined, is an example of both kinds of non-residence
representation. In 1755 and 1756 he represented Abercorn
and Goshen, respectively.^^ These places were both in St.
Matthew's Parish, but in 1761 Johnson represented Savannah,
which was in Christ Church Parish. ^^

Noble W. Jones, colonel of the provincial militia, and a
prominent resident of Savannah,^" also furnishes an example of
both kinds of non-residence representation. He represented

"Ga. Col. Recs., XIV, 590; XV. 6, 303. "Ibid., XIII, 7, 81.

■•Stevens. II. 104; Knight. I, 331. "Ibid., XIII. 472.

>'Ga. Col. Recs.. XV. 228, 304, 320. "Stevens, II, 104; Knight, II. 228.

GEORGIA 241

Acton in 1755-56; Ebenezer in St. Matthew's Parish in 1760;
and Savannah from 1761 to 1769.''^^

Henry Young represented the Islands in 1755-56; Vernon-
burg in 1763; and the Islands again in IIIIP

George Baillie (Bailly), who lived either in Savannah or
near there,^^ seems to have been in demand as a representative
by distant parishes. In 1764 he was elected by St. Paul's but
declined. In 1772 he was elected by both Vernonburg and
St. Thomas' Parish. He chose to serve for the latter. He
was reelected by St. Thomas' the following year but declined
to serve.^^

Edward Barnard, of Augusta, ^^ started his legislative ex-
perience by serving in the first assembly from Halifax. After
1760 he continuously represented either Augusta or the parish
of St. Paul.2«

Elisha Butler, of Savannah," was one of the largest land-
holders of the province. He represented Ogeechee in 1755
and 1757; St. Philip's Parish in 1761, and was elected from
Ebenezer in 1764 but declined to serve.^*

Within four years Samuel Farley, whose place of residence
is not certain, represented settlements in three different
parishes: Ebenezer in 1769; Great Ogeechee in 1771; and
The Islands in 1772.2^

Sir Patrick Houston was Registrar of Grants and Receiver
of Quit Claims. As the only titled man in the province it is
not strange that he was elected to the assembly. He lived
most of the time in Savannah but had a country seat nine
miles south.^" He was first elected by Vernonburg in 1764.
In 1769 he was chosen by St. Andrew's Parish; in 1771 by
both the parish and Darien but he declined. The next year
the same places reelected him and he served.*^

"Ga. Col. Recs., XIII. 7, 81. 433. 472; XIV, 137. 589; XV. 303. 320, 326.
" Ibid.. XIII, 7, 81; XIV. 18; XV, 336.

" Knight. II. 265. » Ga. Col. Recs., XIV. 87; XV, 327, 364.

» Knight, I, 882.

"Ga. Col. Recs., XIII, 7. 433, 540; XIV, 158; XV, 303, 320, 515.
"Wilson, 43.

"Ga. Col. Recs., XIII, 68, 81, 474; XIV, 168.
"Ibid.. XV. 6. 303. 320.

»» Knight, I. 388. •■ Ga. Col. Recs.. XIV. 137; XV. 21, 308, 336.

242 GEORGIA

William Jones, whose place of residence cannot be defi-
nitely fixed, represented St. John's in 1765; St. John's and
Midway in 1768, and St. George's in 1772.^^

John Mulryne, of Savannah,^^ was an ardent royalist.
He served in the assembly for the Islands in 1765, 1768, and
1769. In 1761, however, he served for St. John's Parish, and
in 1763 was elected for the villages of Abercorn and Goshen
but declined to serve.^*

Peter Sailers served for three different parishes within a
space of five years. St. John's in 1768; St. Patrick's in 1772;
and St. Thomas' in 1773.^5

John Simpson, a resident of Savannah,^^ served for either
Frederica or Frederica and St. James' Parish combined from
1765 to 1769. In 1772, however, he represented St. George's."

Alexander Wylly was a prominent man of the province
and was speaker of the assembly at one time. His place of
residence cannot be definitely located but everything points
to Savannah. In 1761 he represented St. George's Parish, and
in 1764 and again in 1768 Savannah.^*

William Young, of Savannah,^^ began his career as a
legislator by representing an out-lying district, Ebenezer, in
1768. In October, 1769, he served for his home town but the
next month he appears as a representative for St. Andrew's
Parish. Later, in 1771 and 1772, he again served for Sa-
vannah.""*

The large number of instances of non-residence repre-
sentation in Georgia, within a space of twenty years, from
the first legislature to the point where the records are not
complete and reliable, is striking. And yet it is not surprising
when one keeps in mind two or three things.

First, the theory of suffrage and representation in the prov-

»«Ga. Col. Recs., XIV, 233, 616; XV, 336.

" Stevens, II, 106.

»«Ga. Col. Recs., XIII, 561; XIV, 74, 259, 589; XV, 7.

» Ibid.. XIV, 590; XV, 320, 404.

« Stevens, II, 106.

"Ga. Col. Recs.. XIV, 227, 494; XV, 18. 336.

"Ibid., XIII, 546; XIV, 137, 613.

"Stevens, II, 107.

"Ga. Col. Recs.. XIV. 589; XV, 6, 21, 303. 320.

GEORGIA 243

ince was purely English since the rules governing both ques-
tions were made in England and imposed upon the province.

In the second place, settlements were widely scattered and
it was no easy task to get to the seat of government. Since
non-residence representation was not only allowed, but
encouraged, by the high property qualification for a repre-
sentative, it was often the easier thing to do to elect some man,
known in the settlement through his holdings there, but re-
siding nearer the capital of the province.

And thirdly, the development of one town of the province,
far beyond any other town, so that it was not only the legal
capital but the real center of provincial life, meant that the
professional men and wealthy planters living there furnished
a fine field from which outlying districts could draw their
representatives. The large number of Savannah men who
served for other places show how often this was done.

By the constitution of 1777 county representation was in-
troduced. Parishes were renamed or combined into counties.
Each county, with exceptions of two or three special cases,
was given ten representatives. A residential qualification
was established by Section Six which read :

"The representatives shall be chosen out of the residents
of each county, who shall have resided at least twelve months
in this state, and three months in the county where they
shall be elected; except the free-holders of the counties of
Glynn and Camden, who are in a state of alarm, and who
shall have the liberty of choosing one member each, as specified
in the articles of this constitution in any other county, until
they have residence sufficient to qualify them for more:
And they shall be of the protestant religion, and of the age
of twenty-one years, and shall be possessed in their own
right of two hundred and fifty acres of land, or some property
to the amount of two hundred and fifty pounds." ■*'

" While a freehold qualification for suffrage was retained, Section Eleven provided
that no person had more than one vote and that must be cast where he resided.

CONCLUSION

Since a summary of the practice of each state regarding non-
residence representation has been given at the close of each
chapter not much remains to be said. Perhaps it will be well
to outline briefly what was the practice of each state.

New Hampshire: Non-residence representation was prac-
ticed only when the towns of the province were represented
in the Massachusetts General Court. A residential require-
ment was included in the Constitution of 1783.

Massachusetts: Practiced extensively from the beginning
of the colony until forbidden by law of 1693.

New Plymouth: No non-residence representation.

Rhode Island: Practiced extensively throughout its
colonial period. A residential requirement was included in
the Constitution of 1783.

New Haven: No non-residence representation.

Connecticut: Practiced extensively throughout the
whole colonial period. Not forbidden until the Constitution
of 1818.

New York: Practiced throughout its whole provincial
period despite the law of 1699, forbidding it. No residential
requirement for representatives to-day.

New Jersey: Not practiced prior to 1702. Between 1702
and 1710 several citizens of New York who owned large
tracts of land in New Jersey sat in its assembly. A residential
qualification established in 1710.

Pennsylvania: No non-residence representation.

Delaware: No non-residence representation.

Maryland : No non-residence representation.

Virginia: No non-residence representation except during
the period of reaction, 1676-1692.

North Carolina: No non-residence representation during
the proprietary period and for several years thereafter. After
1743 it was practiced until the Constitution of 1777 virtu-
ally ended it. Absolutely prohibited by Constitution of 1868.

244

CONCLUSION 245

South Carolina: Practiced extensively throughout colonial
period and into period of statehood. Forbidden by Con-
stitution of 1865.

Georgia: Practiced from the assembly 1755 until forbidden
by Constitution of 1777.

A careful reading of the list just given will show three con-
tiguous provinces in which there was never any non-residence
representation, the proprietory provinces of Pennsylvania,
Delaware, and Maryland. In all the other colonies (excepting
New Plymouth and New Haven) non-residence representation
was practiced at some time in its history.

The above fact suggests that there may have been a
difference in the origin and constitution of the legislatures of
the different kind of colonies. That was the case.

It is doubtful if very many of those interested in planting
colonies in America in the seventeenth century ever foresaw the
development of the legislature as an integral and necessary
part of the colonial political machinery. While they had the
example of Parliament before them it is hardly probable that
this suggested to them representative assemblies. Later it
is true, however, that legislatures fighting for their rights and
privileges often called attention to the privileges of Parlia-
ment. So it is within the realm of probability, at least, to
say that the colonial legislatures developed as a result of social
and political conditions in the colonies. As conditions and
circumstances differed from colony to colony so no two
legislatures assumed the same form and political practice
differed materially from colony to colony.

In the corporate colonies the legislature was simply an en-
largement and development of the stockholders meeting of
the corporation.

In the proprietary colonies it was an instrument used by
the proprietors to make more easy their task both of getting
colonists and of keeping them contented after they had them.

In the royal provinces it was a piece of administrative
machinery, grudgingly granted by the crown, for the reason

246 CONCLUSION

that administration of government would have been practically
impossible without it.

The variations in political practice from colony to colony
resulted in some surprising similarities between colonies of
opposite type and vice-versa. For example, in the two extra-
royal colonies of New York and South Carolina we have found
the custom of using non-resident representatives, in imitation
of the practice of the mother country, was common and long
continued. But why should that practice have been followed
just as extensively by the corporate colonies, Massachusetts,
Rhode Island, and Connecticut? and why should Virginia,
which is usually pointed out as an ideal example of royal
administration, have consistently opposed the practice?
These are questions which only a study of the whole social
background of colonial life can answer.

One fact, however, stands out very clearly in connection
with the subject of representation in the colonial legislatures.
That is that in the beginning, except in three colonies, it was
property not people which was represented. In the provinces
settled by Penn and Calvert a new idea crept into the meaning
of the word "representation" but the older idea asserted itself
as soon as the influence of the original proprietors weakened.

The proof of the above is the steady and insistent pressure
which was brought to bear by royal authority for the estab-
lishment of a property qualification for electors. Royal in-
structions and commissions iterated and reiterated that
election must be by "freeholders".

It was in the distinctly royal colonies that this idea of
representation found its greatest expression in practice. In
New York and South Carolina the assemblies were dominated
by wealthy men, living in the capital city, sometimes mer-
chants and lawyers, but always great land-holders. In the
latter, this condition seems to have been accepted as a matter
of course, but in the former, where the practice was con-
tinually being challenged, we find the arguments by which it
was justified. "Could not one vote wherever he owned
property?" "If not, was that not taxation without repre-

CONCLUSION 247

sentation?" "In fact, did not one (legally) live wherever he
had an estate?" In these questions we get at the heart of the
prevalent English conception of representation ... a con-
ception which had been brought to America by practically
every English colonist.

But there are unmistakable signs that a feeling soon
became manifest that this conception of representation was
not adequate to meet the problems of a new country. For we
find the legislatures steadily lowering the freehold qualifica-
tion for voting; gradually bringing the words "free man" and
voter nearer and nearer together.

While this point had not been reached by any colony at
the end of the colonial period, in most of them the comple-
mentary idea was firmly planted that no man, in the colony,
regardless of wealth, social position, or attainments could as
efficiently serve as a representative in the colonial legislature
for a given district as one who lived within that district and
understood its people and its problems.

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