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A “Manifest Violation” of the Rights of Englishmen: Rights Talk and the Law of Property in Early Eighteenth-Century Jamaica

Published online by Cambridge University Press:  08 July 2015

Extract

In 1706, Jamaica's provost marshal received a writ of escheat from the island's Supreme Court of Judicature. The writ directed him to empanel a jury of “Twelve and Lawful Men of the Neighbourhood” who would determine whether the slaves of James Whitchurch, a Jamaican merchant, should be escheated—returned—to the Crown. Did the “Negro Woman Slave Commonly Called Catalina” and her “Seaven Pickaninny” belong to Whitchurch, or could Queen Anne claim her prerogative right to an escheat because the previous owner of the slaves, Charles Delamaine, had died without an heir? The jury found in the Crown's favor, but a dissatisfied Whitchurch petitioned Queen Anne for relief, asking her to return the slaves and quiet his title. Whitchurch's petition, the first Jamaican escheat case to come before the Queen, sparked a transatlantic legal controversy as colonists, Assembly members, and imperial officials weighed the Crown's prerogative right to escheats against local political grievances and the Board of Trade's desire to encourage West Indian settlement and trade. This seemingly mundane conflict over property law quickly acquired constitutional significance, generating the kind of rights talk so familiar to early American historians: Jamaican colonists claimed the rights of Englishmen, and the Jamaican Assembly asserted an institutional capacity akin to Parliament. In this article, I contextualize colonists' rights talk, rooting their claims to English rights in concerns about the administration of property law during a crucial liminal moment in Jamaican history. As the colony transitioned from a small-scale to a large-scale plantation economy and from a society with slaves to a slave society, property and the law that governed it became the focus of intense political conflict.

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Copyright © the American Society for Legal History, Inc. 2015 

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References

1. The National Archives, Kew, United Kingdom (hereinafter TNA), CO 137/7, 282, Writ of Escheat, August 1706. All dates, where applicable, have been changed to new style dates, with the year beginning on January 1 rather than March 25. Original spelling has been retained but abbreviations have been elongated for ease of reading.

2. Ira Berlin uses this distinction in Many Thousands Gone: The First Two Centuries of Slavery in North America (Cambridge: Belknap, 1998). This is not to suggest that slaves were not always economically important to Jamaican agriculture. As Nuala Zahedieh has noted, “Jamaican planting was largely based on black slave labour from the first.” Zahedieh, Nuala, “Trade, Plunder, and Economic Development in Early English Jamaica, 1655–89,” The Economic History Review 39 (1986): 210CrossRefGoogle Scholar. Nonetheless, it was during this period that Jamaica's slave-to-white ratio reached the high level that it would maintain throughout the eighteenth century. David Watts, The West Indies: Patterns of Development, Culture, and Environmental Change Since 1492 (Cambridge: Cambridge University Press, 1987), 344.

3. These also include studies of how colonists and imperial authorities claimed, chartered, and mapped land; disputes over aboriginal title; and the development of jurisdiction as a geographical construct. See, for example, Stuart Banner, Possessing the Pacific: Land, Settlers, and Indigenous People from Australia to Alaska (Cambridge: Harvard University Press, 2007); John McLaren, Andrew R. Buck, and Nancy E. Wright, eds. Despotic Dominion, Property Rights in British Settler Societies (Vancouver: UBC Press, 2005); John C. Weaver, The Great Land Rush and the Making of the Modern World, 1650–1900 (Montreal: McGill–Queen's University Press, 2003); Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (Cambridge: Cambridge University Press, 2010); Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788–1836 (Cambridge: Harvard University Press, 2010); Christopher Tomlins, Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580–1865 (New York: Cambridge University Press, 2010); Ken MacMillan, Sovereignty and Possession in the English New World: The Legal Foundations of Empire, 1576–1640 (Cambridge: Cambridge University Press, 2006); Shaunnagh Dorsett, “Mapping Territories,” in Jurisprudence of Jurisdiction, ed. Shaun McVeigh (New York: Routledge, 2007), 137–58; idem., ‘Since Time Immemorial’: A Story of Common Law Jurisdiction, Native Title, and the Case of Tanistry,” Melbourne University Law Review 26 (2002): 3259Google Scholar; and Fitzmaurice, Andrew, “The Genealogy of Terra Nullius,” Australian Historical Studies 129 (2007): 115CrossRefGoogle Scholar.

4. This literature also connects with scholarship that complicates an older and more expansive view of rights. By placing claims to natural rights and English liberties in context, historians have begun to pinpoint more precisely what those terms meant to early modern people. See, for example., Hamburger, Philip A., “Natural Rights, Natural Law, and American Constitutions,” The Yale Law Journal 102 (1993): 907–60CrossRefGoogle Scholar; and Michal Jan Rozbicki, Culture and Liberty in the Age of the American Revolution (Charlottesville: University of Virginia Press, 2011).

5. This voluminous historiography largely addresses the run-up to the American Revolution. See, for example, Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge: Belknap Press, 1967); Joyce Appleby, Liberalism and Republicanism in the Historical Imagination (Cambridge: Harvard University Press, 1992); and, more recently, Craig Yirush, Settlers, Liberty, and Empire: The Roots of Early American Political Theory, 1675–1775 (Cambridge: Cambridge University Press, 2011). For an overview of the republican/liberalism debate, see Rodgers, Daniel, “Republicanism: The Career of a Concept,” Journal of American History 79 (1992), 1138CrossRefGoogle Scholar. Jack Greene also has examined claims to English liberties in order to determine how colonists understood the nature of the imperial constitution. Jack P. Greene, Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607–1788 (Athens: University of Georgia Press, 1986).

6. Beaver, Daniel C., “Politics in the Archive: Records, Property, and Plantation Politics in Massachusetts Bay, 1642–1650,” Journal of Early American History 1 (2011): 325CrossRefGoogle Scholar. My work supports this conclusion, especially given that the administrative official bearing much of the burnt of Jamaicans' ire was Richard Rigby, who controlled the island's records.

7. Yirush, Settlers, Liberty, and Empire, 138.

8. Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (Cambridge: Harvard University Press, 2008). Historians, however, largely have ignored conflicts over property in the West Indian colonies. This stems from a more general neglect of West Indian legal history, which sits uncomfortably or not at all in historiographies that take American nationhood as their end-point. Standard American legal history texts, for example, typically omit West Indian legal history despite the economic importance of the West Indian colonies to the British Empire. See, most recently, G. Edward White, Law in American History, vol. 1 (Oxford: Oxford University Press, 2012). Little is known about law in the British West Indies, apart from a basic understanding of seventeenth and eighteenth century constitutional struggles, which occupied the interest of historians in the early and mid-twentieth century. See, for example, George Metcalf, Royal Government and Political Conflict in Jamaica, 1729–1783, (London: Longmans, 1965); Frederick G. Spurdle, Early West Indian Government: Showing the Progress of Government in Barbados, Jamaica and the Leeward Islands, 1660–1783 (New Zealand: Whitcomb and Tombs, 1963); Dacosta, Harvey L., “The First Constitutional Struggles,” The Jamaican Historical Review 3 (1957): 1838Google Scholar; and Agnes Mary Whitson, The Constitutional Development of Jamaica, 1660–1729 (Manchester: Manchester University Press, 1929). For a more recent discussion of eighteenth-century constitutional conflict in Jamaica, see Jack P. Greene, “Liberty and Slavery: The Transfer of British Liberty to the West Indies, 1627–1865,” in Exclusionary Empire: English Liberty Overseas, 1600–1900, ed. Jack P. Greene (Cambridge: Cambridge University Press, 2010), 50–76. Studies of West Indian slave laws are an important exception to this general trend. See, for example, David Barry Gaspar, “Rigid and Inclement’: Origins of the Jamaica Slave Laws of the Seventeenth Century,” in The Many Legalities of Early America, ed. Christopher L. Tomlins and Bruce H. Mann (Chapel Hill: University of North Carolina Press, 2001), 78–96; Tomlins, Freedom Bound; and Elsa V. Goveia, “The West Indian Slave Laws of the Eighteenth Century,” in Caribbean Slavery in the Atlantic World: A Student Reader, ed. Verene A. Shepherd and Hilary McD. Beckles (Kingston, Jamaica: Ian Randle, 2000). Analyses of West Indian slave laws also appear, although less centrally, in Priest, Claire, “Creating an American Property Law: Alienability and Its Limits in American History,” Harvard Law Review 120 (2006): 414Google Scholar; Vincent Brown, The Reaper's Garden: Death and Power in the World of Atlantic Slavery (Cambridge: Harvard University Press, 2008); Susan Dwyer Amussen, Caribbean Exchanges: Slavery and the Transformation of English Society, 1640–1700 (Chapel Hill: University of North Carolina Press, 2007); Richard B. Sheridan, Sugar and Slavery: An Economic History of the British West Indies, 1632–1775 (Baltimore: Johns Hopkins University Press, 1973); and Richard S. Dunn, Sugar and Slaves: The Rise of the Planter Class in the English West Indies, 1624–1713 (Chapel Hill: University of North Carolina Press, 1972). Two additional noteworthy exceptions to this lack of interest in West Indian legal history include Trevor Burnard's excellent work on testamentary practices in colonial Jamaica and Miles Ogborn's study of Jamaican oath-taking and oral legal culture. Burnard, Trevor, “Inheritance and Independence: Women's Status in Early Colonial Jamaica,” William and Mary Quarterly, 3rd. ser. 48 (1991): 93115CrossRefGoogle Scholar; and Ogborn, Miles, “The Power of Speech: Orality, Oaths, and Evidence in the British Atlantic World, 1650–1800,” Transactions of the Institute of British Geographers 36 (2011): 109–25CrossRefGoogle Scholar.

9. Philip Girard, “Land Law, Liberalism, and the Agrarian Ideal: British North America, 1750–1920,” in Despotic Dominion, Property Rights in British Settler Societies, 120–43.

10. Although scholars generally have denied that West Indian colonists were as mindful of the “legal niceties” as their mainland counterparts, the escheat controversy reveals that property law deeply interested them. Trevor Burnard, Tyranny, Mastery, and Desire: Thomas Thistlewood and His Slaves in the Anglo–Jamaican World (Chapel Hill: University of North Carolina Press, 2004). I believe that Jamaican colonists were more legally savvy than previously has been supposed, and much more like colonists in the mainland colonies in this regard. My work, therefore, challenges, in part, a larger literature of Caribbean exceptionalism, which depicts West Indian society as perpetually dysfunctional and colonists as maladaptive residents of the British Atlantic World. See, for example, Richard Dunn, Sugar and Slaves; Carl and Roberta Bridenbaugh, No Peace Beyond the Line: The English in the Caribbean, 1624–1690 (Oxford: Oxford University Press, 1972); and, to a lesser extent, Trevor Burnard, Tyranny, Mastery, and Desire. But see Jack Greene, Pursuits of Happiness: The Social Development of Early Modern British Colonies and the Formation of an American Culture (Chapel Hill: University of North Carolina Press, 1988); Jack Greene, “Society and Economy in the British Caribbean During the Seventeenth and Eighteenth Centuries,” in Interpreting Early America: Historiographical Essays (Charlottesville: University of Virginia Press, 1996); Edward Braithwaite, The Development of Creole Society in Jamaica, 1770–1820 (Oxford: Oxford University Press, 1971); and Vincent Brown, The Reaper's Garden.

11. Priest, “Creating an American Property Law,” 389.

12. An important exception is Rusty Bittermann's examination of the escheat movement in nineteenth-century Prince Edward Island, in which some tenants agitated for the state to escheat and regrant the property of large landholders in order to “bring property relations on the Island in line with settlers' perceptions of a just social and economic order.” Rusty Bittermann, Rural Protest on Prince Edward Island: From British Colonization to the Escheat Movement (Toronto: University of Toronto Press, 2006), 4. Bittermann concludes that the escheat movement was, in part, a battle for control over Prince Edward Island's economic development, and in this respect it resembles the much earlier conflict over escheat in Jamaica. Ibid., 48. Nonetheless, the type of escheat that Bittermann describes differed significantly from escheat as outlined here in that land in Prince Edward Island was to be resumed on the legal basis that proprietors did not abide by the terms of their land grants, not for the failure of heirs.

13. Sir Edward Coke, The First Part of the Institutes of the Laws of England (New York: Garland Publishing Company, 1979): 13a.

14. William Stubbs, The Constitutional History of England in Its Origin and Development, 3rd ed. (Oxford: Clarendon Press, 1880), 383. Stubbs suggests that many of these incidents existed in England prior to the Conquest. Ibid. Historians today refer to these incidents as “feudal incidents.” Although the word “feudal” entered popular usage in the late seventeenth century, Jamaican colonists and colonial administrators did not typically use the term. As such, in this article I refer to feudal incidents as simply “incidents”.

15. Hardman, Frederic W., “The Law of Escheat,” The Law Quarterly Review 15 (1888), 322Google Scholar. This is also not to suggest that the lord has a reversionary interest, as there cannot be a reversionary interest in fee simple land. As Alfred W.B. Simpson maintains, the subtle distinction between escheat and reverter “troubled the lawyers of the thirteenth century just as it troubles modern students.” The key is remembering that escheat “depends upon tenure and tenure alone, and so occurs only where a tenant in fee simple dies without heirs.” A.W.B. Simpson, An Introduction to the History of the Land Law (Oxford: Oxford University Press, 1961), 19.

16. Origins and Development of Modern Escheat,” Columbia Law Review 61 (1961): 1320Google Scholar. In the medieval period, the tenant could not defeat the lord's right to escheat by devising his property. With the broadening of testamentary freedom in the late sixteenth and seventeenth centuries, however, testators theoretically could avoid escheat through a will. However, as Carole Shammas has argued, it appears that merely one in four decedents in early modern England left a will. Moreover, these testators infrequently expanded bequests outside the nuclear family. Shammas, Carole, “English Inheritance Law and Its Transfer to the Colonies,” The American Journal of Legal History 31 (1987): 151CrossRefGoogle Scholar. In the Jamaican case, as Trevor Burnard has shown, most colonists died intestate. Burnard, “Inheritance and Independence,” 95. During the late seventeenth century, the question of whether a trust could effectively prevent an escheat was debated. Sir George Sand's case, decided in 1669, stood for the proposition that there could be no escheat of lands held in cestui que trust where the tenant committed a felony, under the theory that the feoffee in trust essentially replaced the tenant. 2 Freem. 129. This principle was further developed in Burgess v. Wheate, in which the Court, over Lord Chief Justice Mansfield's objection, held against the Crown that the right of escheat depended not upon the lack of an heir, but the want of a tenant to perform services. Therefore, where a legal tenant (here, the trustee) remained in possession, the property would not escheat. 1 Eden 177. This holding was not the last word, however, as English courts continued to struggle to reconcile the law of uses with the law of escheat well into the nineteenth century. In 1884, the Intestates Estates Act finally reversed the holding in Burgess v. Wheate, stipulating that equitable estates would be subject to escheat. 47, 48 Vict. c. 71. For a discussion of changes in the law of trusts relating to escheats, see William S. Holdsworth and C.W. Vickers, The Law of Succession, Testamentary and Intestate (London: Stevens & Sons, 1899). Escheat, which in England affected only real property, should be distinguished from forfeiture, which implicated personalty as well as real property, and occurred when a subject was attainted or convicted for treason. In the case of an attainder for treason, only the Crown––not the mesne lord––could benefit. Although the end result of escheat and forfeiture was often the same, they were supported by different theories. Escheat depended entirely upon land tenure, whereas forfeiture was a punishment for a crime against the body politic. Therefore, where the Crown was entitled to escheats, it was as a result of its status as lord paramount, whereas the Crown's entitlement to forfeitures derived from its sovereign capacity. Despite these distinctions, contemporaries frequently conflated escheat and forfeiture. Simpson, History of the Land Law, 19. For a discussion of escheat and forfeiture in early modern Scotland, see Robert A. Houston, Punishing the Dead? Suicide, Lordship, and Community in Britain, 1500–1830 (Oxford: Oxford University Press, 2010). Escheat for felony was abolished by 33, 34 Vict. c. 23.

17. As R.A. Houston has observed, “the escheators' payments to Exchequer amounted to shillings in the last few years of Elizabeth's reign.” Houston, Punishing the Dead? 122.

18. Escheat also was authorized in Nova Scotia via statute “before 1760.” Rusty Bittermann and Margaret McCallum, “When Private Rights Become Public Wrongs: Property and the State in Prince Edward Island in the 1830s,” in Despotic Dominion, 144–68. How escheat functioned in other colonies is a topic requiring additional study. Nonetheless, it is clear that in proprietary colonies such as Carolina, colonizers also recognized escheat's potential benefits. In the first draft of the Fundamental Constitutions of Carolina (1669), for example, Anthony Ashley Cooper and John Locke, the document's authors, stipulated that estates belonging to landgraves and cassiques should descend to the heir male, but failing that, were to escheat to the lords proprietors. By cutting off descents and allowing for escheats after the failure of the male line, Ashley and Locke ensured that the colony's largest and most valuable lands would return to the proprietors more quickly than the common law rules of descent normally would allow. This, in turn, enabled the proprietors to regrant unused properties, thereby facilitating the productive use of land and guaranteeing the proprietors a steady revenue stream before the collection of quit-rents in the colony became lucrative. Potential colonists from Barbados, however, saw the escheats clause as an attempt to limit their ability to dispose of their property in Carolina, which ultimately led to an alteration of the Constitutions. Sir John Yeamans to Lords Proprietors, November 15, 1670 in Langdon Cheves, ed. The Shaftesbury Papers (Charleston: Home Press, 2010), 218–20.

19. MacMillan, Sovereignty and Possession in the English New World. For a discussion of escheat's usefulness in rewarding American loyalists with land in Nova Scotia after the American Revolution, see Maya Jasanoff, Liberty's Exiles, American Loyalists in the Revolutionary World (New York: Alfred A. Knopf, 2011); and Bittermann and McCallum, “When Private Rights Become Public Wrongs,” 147.

20. TNA, CO 138/5, 270, Instructions to Christopher, Duke of Albermarle, March 15, 1687.

21. Although not stipulated in the 1681 statute, Jamaican planters who had reason to believe that property was escheatable took their information to the governor or lieutenant governor, who would grant leave to obtain a writ from the attorney general. The informer was responsible for paying the considerable court fees associated with prosecuting the escheat. Thomas Parker, for example, complained that his prosecution of an escheat had cost him more than £34. TNA, CO 137/6, 168–70, Petition of Thomas Parker, received January 24, 1704.

22. A 1681 act of the Assembly gave the Supreme Court of Judicature jurisdiction over all civil and criminal pleas as fully as “the Courts of King's-Bench, Common-Pleas, and Exchecquer, within his Majesty's Kingdom of England, have or ought to have.” “An Act for Establishing Courts, and directing the Marshal's Proceedings” (1681), Acts of Assembly, Passed in the Island of Jamaica; From 1681, to 1737, inclusive (London: John Baskett, 1738) (hereafter, Acts of Assembly). In Jamaica, the authority to establish courts flowed from the governor's royal commission. Like New Hampshire, Jamaica never had a charter. Greene, Peripheries and Center, 28.

23. If, however, an heir proved himself by “any Public Attestation” or through a hearing by a judge and jury, he was entitled to recover the appraised value of the escheated estate, minus the value of any improvements (as appraised by the chancellor) made by the escheat-patentee. “An Act for Prevention of Lawsuits,” Acts of Assembly. Commenting upon escheat in an undated letter to the Board of Trade, Governor Hamilton suggested that heirs rarely appeared to claim escheated property. TNA, CO 137/10, 94–98; 233–244 (duplicate), “An Account of Escheats with Observations thereon,” November 22, 1712. A 1703 statute, “An Act for ascertaining, establishing, and more speedy collecting her Majesty's Quit-Rents,” effectively created a new category of escheat where colonists failed to pay their quit-rents. Per this statute, their lands were forfeit and could be regranted by the governor. It is not clear whether the procedure for ascertaining whether lands were forfeit for failure to pay quit-rents was the same as that for escheats or whether any lands were escheated for this reason.

24. Shammas, “English Inheritance Law,” 160. Other mainland colonies with intestacy statutes in place before 1720 included: Massachusetts (1710), Connecticut (1702), New Hampshire (1718), Rhode Island (1719), new Jersey (1676), Delaware (1706), Maryland (1715), Virginia (1705), North Carolina (1715), and South Carolina (1712). Ibid., 162.

25. At common law, only descendants (not ancestors) could inherit. Inheritance by half-blood kin was also not allowed. Sons were preferred, with the eldest son taking all. In the absence of sons, daughters inherited equally. Where no siblings or their issue survived, property passed to the issue of the decedent's paternal grandfather. If all of these lines of issue failed, property would then escheat to the Crown.

26. Metcalf, Royal Government and Political Conflict, 27. Jamaicans specifically stated that common law rules of descent and any statutory modifications applied in Jamaica. Weighing in on a probate dispute in England over the Jamaican real estate of former governor Sir William Beeston, the Assembly insisted that Jamaicans, as English subjects, were entitled to follow English inheritance law. Petitioning the Privy Council, they declared that it had “been the constant practice of the said island, in all causes, civil, criminal, and mixed, to observe the common law, and all general statutes of England made pro bono publico, and not by express words restrained to the kingdom of England, dominion of Wales, and town of Berwick upon Tweed; and the same are in force, and have been always received as laws in the said island…That your petitioners, in respect of their lives members, and freeholds, have no other laws by which to govern themselves but those of England only; and multitudes of judgments have been given and grounded according to such laws of England, and not otherwise.” Journals of the Assembly of Jamaica, 2 vols. (Jamaica: Alexander Aikman, 1811), 2:29–30, May 18, 1711 (hereinafter, Journals).

27. “An Act for the better Order and Government of Slaves” (1696), Acts of Assembly.

28. Jamaica was not alone in readjusting the ways in which it classified slave property. Colonial assembly members in Virginia as well as other Caribbean colonies often wrote into law an odd (from an English perspective) distribution of property rights to slaves. Whereas assembly members treated slaves as real property in some circumstances (which allowed masters to entail slaves and ensured that eldest sons would inherit both land and slaves), in others they deemed slaves chattel in order to facilitate their alienability and to expand credit. As Claire Priest has shown, English merchants were aware of this practice, and ultimately secured the passage of the Debt Recovery Act of 1732 as a result. The Act “abolished the legal distinctions between real property, chattel property, and slaves in relation to the claims of creditors,” making it possible for creditors to seize slaves and even land in payment of debts. Priest, “Creating an American Property Law,” 389.

29. TNA, CO 137/10, 94–98; 233–244 (duplicate), “An Account of Escheats with Observations thereon,” November 22, 1712.

30. Sent occasionally by governors to the metropole, and also recorded in the journals of the Jamaican Assembly, some of these accounts list “Fines Forfitures & escheats” as a single line item, without distinguishing the amount received from each individual incident. See, e.g. TNA, Extracted Documents Series at the National Archives in Kew 1/259, item 26, October 1712. Even where “escheats” are listed as a separate line item in revenue reports, annual escheat revenues varied not only according to the number of escheat patents, but also because an inquest jury valued each escheated property prior to its regrant. Thus, revenue figures from year to year hypothetically could differ even if the number of escheated tracts remained constant. It also appears that Jamaican governors were less than regular in submitting lists of escheats to the Board of Trade, although some do exist in the Colonial Office records.

31. Burnard, Trevor, “A Failed Settler Society: Marriage and Demographic Failure in Early Jamaica,” Journal of Social History 28 (1994): 69, 73CrossRefGoogle Scholar. See also Brown, The Reaper's Garden.

It also appears that Jamaican colonists expected escheats to occur with some frequency, as evidenced by the fact that the Assembly outlined the abovedescribed procedure for escheats, and later supplemented this procedure with an act regulating fees owed to legal officials in conjunction with an escheat inquest. This 1711 “Act for regulating Fees” listed fees for “summoning a Jury to execute a Writ of Possession, Escheat, Cessavit…” and for granting an escheat patent. Acts of Assembly. Finally, as a legal concept, escheat was discussed in the most popular legal texts of the period. Jamaican colonists and administrators with even a smattering of legal knowledge would have been familiar with escheat via Sir Edward Coke's Institutes of the Laws of England (especially “Coke on Littleton”) or Michael Dalton's The Country Justice Perhaps exposure to one of these texts acquainted Governor Hamilton with the distinction between escheat aut per defectum sanguinis and escheat aut per delictum tenetis, which he referenced (in Latin) in a letter to the Board of Trade. TNA, CO 137/10, 94–98; 233–244 (duplicate), “An Account of Escheats with Observations thereon,” November 22, 1712.

32. TNA, CO 137/7, 275, Petition of James Whitchurch, January 12, 1708. The inquest jury found that Charles Delamine died seized of Catalena and “five Pickaninneys which they Beleive [sic] According to their Evidence were Alsoe [sic] at the time of the Death of the said Charles Delamaine and further Say that the said Negro Slave Catalena Since the Death of the said Charles Delamaine has had other Two Pickanninneys and that one of her Pickaninny has had Other Three Pickaninnyes All Which Negroes and Pickaninnyes they Doe Believe to be the Negros in the Writt Mentioned.” (emphasis in the original). TNA, CO 137/7, 282, Whitchurch inquest return, November 25, 1706.

33. TNA, CO 137/7, 275, Petition of James Whitchurch, January 12, 1708.

34. Although scholars debate the extent to which West Indian colonists absented themselves from their estates, Whitchurch's petition reveals that absenteeism had decidedly legal implications at the level of both discourse and practice. That Whitchurch was able to successfully petition the Queen suggests that absentee merchants and planters already had begun to acquire some degree of political power in the metropole. See, for example, Burnard, Trevor, “Passengers Only: The Extent and Significance of Absenteeism in Eighteenth Century Jamaica,” Atlantic Studies 1 (2004): 178–95CrossRefGoogle Scholar.

35. TNA, CO 137/7, 275, Petition of James Whitchurch, January 12, 1708.

36. TNA, CO 137/7, 279–80, Deposition of James Whitchurch, March 9, 1708. Whitchurch also suggested that even if the court believed that he did not have title to the slaves, Charles Delamaine did have living heirs. These included “a Brother and severall other Relacions who as this Deponent believes are still living and reside at or near the City of Gloucester.” Ibid. Whitchurch assembled a number of documents in support of his petition. In addition to his own deposition, which alleged facts similar to those presented in the petition, he presented the deposition of Thomas Tucker. Perhaps an acquaintance of Whitchurch's in Jamaica, Tucker corroborated Whitchurch's title to the slaves, swearing that “after the said Mr. Whitechurchs inter marriage with the said Ms. Sarah Vincent this Deponent knew the said Negroe Woman Catalina in the Custody and possession of the said Mr. James Whitechurch for severall years During which time she had severall Children.” TNA, CO 137/7, 277, Deposition of Thomas Tucker, March 5, 1708.

37. TNA, CO 137/7, 289, William Popple to James Montague, March 12, 1708.

38. TNA, CO 137/7, 287, Solicitor General's Opinion, April 2, 1708.

39. TNA, CO 137/8, 2, Petition of Richard Lloyd, read April 15, 1708; TNA, CO 137/8, 6, “The Humble Petition of the Severall Underwritten Merchants and Planters Traders to and Inhabitants of your Majesty's Island of Jamaica in behalf of themselves and diverse others of your Majesty's Subjects of the Island,” read April 15, 1708.

40. TNA, CO 138/12, p. 270, Board of Trade to the Queen, June 15, 1708.

41. Ibid.

Ibid

42. Ibid., p. 271.

Ibid

43. The Groans of Jamaica Express'd in a Letter (London, 1714) (hereinafter, The Groans of Jamaica), passim; 7.

44. Ibid., 12.

Ibid

45. Ibid., vi–vii.

Ibid

46. TNA, CO 137/11, 125–26, “An Account of the Maladministration in Jamaica during the Government of Lord Hamilton.”

47. The Groans of Jamaica, 4. As provost marshal, Rigby was able to exert control over legal processes, and particularly the execution of writs. Although Rigby's deputy carried out the day-to-day duties of the office, the Assembly nonetheless believed that in many instances Rigby pulled the strings by preventing the delivery of writs, and particularly writs of election.

48. TNA, CO 137/10, 293, “Some Reasons for passing an Act of the Governor, Council and Assembly of Jamaica, entituled, An Act to prevent any one Person from holding two or more Offices of Profit, &c.,” July 28, 1713.

49. Ibid.

Ibid

50. Ibid. Laws in Jamaica, as in most other colonies, were enacted by the governor, Council, and Assembly. After passing the Council (which during the lawmaking process functioned as an upper house) and the Assembly three times each, a bill was presented to the governor for his assent. As Spurdle notes, the governor would usually assent to a bill unless he believed that it infringed upon his instructions or commission. Ordinary bills could be introduced in either house, but money bills were typically introduced in the Assembly. Both houses could freely amend ordinary bills. After a law received the governor's assent, it was dispatched to the Privy Council for review. During the review period, most laws were considered in force (unless they contained a suspension clause). Laws that were disallowed by the Crown, acting on the advice of the Privy Council and the Board of Trade, went out of operation upon receipt of the Council's order of disallowance. However, many colonial laws were allowed to “lie by”; that is, they remained in operation without having been reviewed by the Privy Council, but might be disallowed at any time. Spurdle, Early West Indian Government, 30–31.

Ibid

51. Whitgift Aylmer, Francis March, and Thomas Beckford stated that “Mr. Rigby was the Person chiefly pointed at, by that Act.” TNA, CO 137/10, 293, “Some Reasons for passing an Act of the Governor, Council and Assembly of Jamaica, entituled, An Act to prevent any one Person from holding two or more Offices of Profit, &c.,” July 28, 1713.

52. Arguing before the Board of Trade, Aylmer, March, and Beckford all connected this act, as well as the multiple offices act, to escheat-related abuses. They observed that after the passage of the multiple offices act, the Assembly passed “An Act for the further quieting Mens Possessions, and preventing vexatious Suits at Law, &c., to prevent the trumping up, under Colour of serving the Interest of the Crown, several pretended Grounds for escheating many honest and laborious Planters Estates, and, at the same time, clandestinely securing Grants thereof to themselves.” Ibid., 292.

53. TNA, CO 137/8, 214–16, “An Act for the further Quieting Possessions, and preventing vexatious suits at Law.”

54. Journals, 2:155, December 3, 1715. The Assembly sought to repeal “An Act for the better securing the Estates and Interests of Orphans and Creditors; and to oblige Executors to give Security, and to return Appraisements into the Secretary's Office of this Island” (1711).

55. Journals, 2:218–19, October 22, 1716.

56. Jack P. Greene, The Quest for Power: The Lower Houses of Assembly in the Southern Royal Colonies, 1689–1775 (Chapel Hill: University of North Carolina Press, 1963).

57. As Dacosta noted, from its first meeting on January 20, 1664, the Jamaican Assembly was “as boisterous as a tropical hurricane.” Dacosta, “The First Constitutional Struggles,” 23. Charles Leslie observed that tensions between the governor and the Assembly became especially heated beginning in the Handasyd administration, when the Assembly “began likewise to be refractory, shewed too little Respect to the Governor, and claimed extraordinary Powers. They refused the necessary Supplies for maintaining the Forts, and defraying the publick Expense of the Island. The Governor, on this Occasion, acted a bold and resolute Part; for, on their refusing to dissolve, on a Message he had sent them, he drew his Sword, and swore an Oath, he would soon disperse them. He went to the House; the affrighted Planters immediately run out; and one of the most considerable, being in too great a Haste, fell down the Stairs and broke his Neck.” Charles Leslie, A New History of Jamaica From the Earliest Accounts to the Taking of Porto Bello by Vice-Admiral Vernon (London: J. Hodges, 1740), 274. As Spurdle notes, the Jamaican Assembly sought to reduce the governor's ability to spend to “an absolute minimum” and did not vote a perpetual revenue act until 1728. Spurdle, Early West Indian Government, 115.

58. Journals, 2:218–19, October 22, 1716; Ibid., 172, December 23, 1715.

59. Ibid., 2:37, June 1, 1711.

Ibid

60. Ibid., 2:234–37, November 15, 1716.

Ibid

61. Ibid., 66–69, December 17, 1715.

Ibid

62. Girard, “Land Law, Liberalism,” 137.

63. Brown, The Reaper's Garden, 11.

64. Ibid., 93.

Ibid

65. Burnard, “A Failed Settler Society,” 69.

66. Ibid., 65–66; See also Watts, The West Indies, 344. As Burnard explains, the French were carriers of yellow fever, Burnard, “A Failed Settler Society,” 69. The Port Royal earthquake sent Jamaica's largest port into the sea, and directly caused hundreds of deaths as falling buildings crushed panicked colonists. Matthew Mulcahy, Hurricanes and Society in the Greater British Caribbean, 1624–1783 (Baltimore: Johns Hopkins University Press, 2005).

Ibid

67. Watts, The West Indies, 240.

68. TNA, CO 137/6, 166, “Judgments in Escheat,” 1702–3. The two exceptions were parcels in Clarendon parish and Vere parish.

69. Burnard, “A Failed Settler Society,” 73.

70. TNA, CO 137/6, 168, Petition of Thomas Parker, received January 24, 1704.

71. TNA, CO 137/6, 136–37, Governor Handasyd to the Board of Trade, November 27, 1703.

72. Burnard, “A Failed Settler Society,” 73.

73. As Zahedieh has noted, “the main cost of sugar planting was labour,” with one acre of cane requiring one laborer to produce one hogshead of sugar. Zahedieh, “Trade, Plunder, and Economic Development,” 210.

74. Watts, The West Indies, 291–92; 311. Sugar production nearly doubled from 4,451 tons in 1700–4 to 9,957 in 1720–24. Ibid., 286.

75. Between 1700 and 1750, the price of slaves increased from £22 per head to £35 per head. Ibid., 273.

76. “An Act for the better Order and Government of Slaves” (1696), Acts of Assembly.

77. Priest, “Creating an American Property Law,” 389.

78. TNA, CO 137/8, 252, “A Dockett of the Judgements upon Escheats which were affirmed for the Queen in May Grand Court 1709”; TNA, CO 137/10, 94–98; 233–244 (duplicate), “An Account of Escheats with Observations thereon,” November 22, 1712.

79. Watts, The West Indies, 240.

80. Spurdle, Early West Indian Government, 115.

81. Ibid. TNA, CO 137/10, 94–98; 233–244 (duplicate), “An Account of Escheats with Observations thereon,” November 22, 1712. Hamilton's predecessor in office complained that “the Assembly have never assisted the Treasury with one royall.” The beleaguered governor had even “been under a necessity myselfe to give £200 per annum, Jamaica mony, out of my own pockett for private intelligence, that we may not be surprized by the French and Spaniards that surround us on every side.” TNA CO 138/12, pp. 340–45, Handasyd to Board of Trade, September 24, 1708.

Ibid

82. TNA, CO 137/10, 94–98; 233–244 (duplicate), “An Account of Escheats with Observations thereon,” November 22, 1712.

83. Governor Handasyd agreed with this assessment of the Whitchurch claim. He believed that Whitchurch or some others had kept Delamaine's slaves “out of the way…it being the common custom of people here to deprive the Queen of whatever they can.” TNA CO 138/12, pp. 340–45, Handasyd to Board of Trade, September 24, 1708.

84. TNA, CO 137/10, 94–98; 233–244 (duplicate), “An Account of Escheats with Observations thereon,” November 22, 1712.

85. TNA, CO 138/14, pp. 28–31, Attorney General to Board of Trade, August 6, 1713.

86. TNA CO 137/10, 89, Hamilton to Board of Trade, November 22, 1712.

87. TNA CO 138/14, p. 21, Board of Trade to Hamilton, July 20, 1713.

88. TNA, CO 137/10, 13, Attorney General to Board of Trade, July 14, 1713.

89. TNA, CO, 138/14, p. 328, Attorney General to Board of Trade, April 29, 1715. The Assembly eventually followed Northey's suggestion that two separate acts––one providing for a statute of limitations for suits by subjects contesting title and the other quieting present titles against the Crown––might be acceptable.

90. TNA, CO 137/10, 94–98; 233–244 (duplicate), “An Account of Escheats with Observations thereon,” November 22, 1712. In his campaign for new instructions regarding escheats, Hamilton was supported by his London agent, John Thurston, who routinely asked the Board for information about what should be done about the escheat lists Hamilton had previously transmitted to the Board. See, for example, TNA, CO 137/10, 12 [1711–12].

91. Board of Trade to Hamilton, in William Noel Sainsbury, John W. Fortescue, Cecil Headlam, Arthur Percival Newton, and Kenneth G. Davies, eds. The Calendar of State Papers, Colonial Series (London), vol. 28, April 25, 1715.

92. TNA, CO 137/10, 94–98; 233–244 (duplicate), “An Account of Escheats with Observations thereon,” November 22, 1712.

93. Journals, 2:189, written April 25, 1715.

94. The Board's intervention in the escheat controversy did not settle this debate, at least from the Assembly's perspective, and some members began to focus on strategies for better articulating their position in London, including funding a London-based agent. Spurdle agreed that “Lord Archibald Hamilton's violent disputes with the Assembly from 1713 to 1716 made the services of an Agent an urgent necessity.” Spurdle, 205. On December 20, 1715 the Council rejected an act to solicit the laws of Jamaica in Great Britain, finding “that it tends to the utter subversion of the constitution of the island, and to the establishing ephori to control the government.” In response to this obstruction, the Assembly agreed to support an agent through a voluntary subscription. Journals, vol. 2, 169. Spurdle claims that the Assembly raised approximately £1,100 to hire Sir Gilbert Heathcote (1652–1733), who had previously acted as an agent for the island. Spurdle, Early West Indian Government, 205. For a more general discussion of the formation of a West Indian lobby, see Penson, Lillian M., “The London West India interest in the eighteenth century,” English Historical Review 30 (1921): 373–92CrossRefGoogle Scholar; and O'Shaughnessy, Andrew J., “The Formation of a Commercial Lobby: The West India Interest, British Colonial Policy and the American Revolution,” The Historical Journal 40 (1997): 7195CrossRefGoogle Scholar.

95. Lauren Benton, Legal Regimes in World History, 1400–1900 (Cambridge: Cambridge University Press, 2001), 14.

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