Tb? Deuelopment of a Residential 
 
 QaalificatioD for RepreseDtallues 
 
 iD ColoDlal Legislatdpes 
 

 
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 Cornell University Library 
 JK81 .P55 
 
 The development of a residential qualifi 
 
 olin 
 
 3 1924 030 452 241 
 
The Development of a Residential 
 
 Qualification for Representatives 
 
 m Colonial Legislatures 
 
 BY 
 
 HUBERT PHILLIPS, A. B., M. A. 
 
 »i 
 
 Submitted in partial fulfillment of the requirements 
 for the degree of Doctor of Philosophy, in the 
 Faculty of Political Science, Columbia University 
 
 CINCINNATI 
 PRINTED FOR THE AUTHOR BY 
 
 THE ABINGDON PRESS 
 
 W 
 
 /3P 
 
A.S\oS53 
 
 COPYRIGHT 1921 
 
 BY 
 HUBERT PHILLIPS 
 
 ^<^V Sf_ 
 
 
TO ONE NOW GONE, 
 
 WITHOUT WHOSE INSPIRATION AND SACRIFICE 
 
 THE COMPLETION OF THIS WORK 
 
 WOULD NOT HAVE BEEN 
 
 POSSIBLE 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924030452241 
 
FOREWORD 
 
 Geographically this study only covers the colonies which 
 later became known as the Thirteen Original Colonies. 
 
 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 
 
 KVII. 
 
 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 ofiSce 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 liave 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 
 
 11 
 
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^i 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, S. " (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 which 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 Berwick 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; 
 some 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 difificulty 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.i' 
 
 The laws of 1413, 1429, 1432, and 1444-45 were repealed 
 in 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 iminhabited. 
 
 (c) The direct purchase of the seat from the corrupt 
 corporation or from the limited body of freemen.^^ 
 
 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 
 bis home constituency vfhen 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 officers 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 full 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. 
 
 18 
 
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 
 
 u Mass. Col. Recs., I, 87. ■' An early example of recall. 
 
 " "To the end of the body of the commons may be preserved of honest and good men, 
 U was likewise ordered and agreed that for time to come no man shall be admitted to the 
 f reedome of this body politicke but such as are members of some of the churches within the 
 lymitts of the same." 
 
 Mass. Col. Records, I, S7. 
 
 "The settlements by the year 1632 were Boston, Salem, Watertown, Rozbury 
 Saugus(Lynn) , 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 
 establishment 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. 
 
 " After this separation the governor presided over the Assistants while the Deputies 
 elected a Speaker annually. 
 " Osgood, I, 1S8. 
 
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 assembied, 
 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.^' 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., 1, 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., 1, 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. 
 Recs., 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 qualilication 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 ofificials 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. Reca.. 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 tor Dover (Col. Recs., IV (2), 2.), while the Deputies Record have him 
 as representing Braintree. (Col. Recs., Ill, 183.) 
 
 '< Mass. Col. Recs., Ill, 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 official, 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.*i 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.', III.' 147, 304. 
 
 " Another illustration of the tendency mentioned in the case of Wenham. 
 " Mass. Col. Recs., Ill, 183. it 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 
 1653. 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., Ill, 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 Springfield'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 genera! 
 court and two in special cases.^^ In 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 Icing; 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. 
 Rece., 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. 
 
 <'Jbii..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., TV (2), 100. 
 
 '■ Ibid., IV (2), 418. 71 jbid., IV (2)i 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." *" 
 
 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 rdgime 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, VH, 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., VIJ, 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 
 House of Representatives," 
 
 " Sewall, I, 380. " Ibid., VII, 29. 
 
 •' Maas. 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.^2 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), 54; (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 Westfield 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, 39L; Colonial Papers (1693-96), 209. 
 
 •« Sewall. I, 385. 
 
 "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. '" Ibid., I, 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, I, 379. '" Colonial Papers (1693-96), 294-295. 
 
 "' Douglas, 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 Genii 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 ia 
 mentioned by Sewall (1,386) as one pf the signers of the petition of protest. 
 
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 affairs 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) 
 
 "117 
 
 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 
 
 »" Douglasd, Summary I, 507. 
 
 "' Mass. Acts and Resolves, I, 31S; Acts and Laws, 118-119, Act No. 80. 
 "• Ibid., II, 592, 593. 
 
 "•Journal of the Convention. Senate, Chap. I, Sec. II, Art. V; House, Chao. I. 
 Sec. Ill, Art. IV. 
 
MASSACHUSSETTS 41 
 
 the convention. Some qualifications for representatives were 
 debated'^" 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. 
 
 42 
 
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 ffreemen . . . provided they choose 
 them only of the ffreemen of the same towne whereof they 
 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 II 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 tlie 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. 
 
 46 
 
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-.l., m. > Ibid., I, WS. 
 
 '• Two Englishmen, Mason and Chamberlain, had been added. 
 " N. H. Laws. I, 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, 1684.1' 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." " 
 
 1' 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 government*^ 
 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.'^ 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., 1, 260. >' Ibid., I, U. 
 
 " N. H. Prov. Papers, II, 34-39. " Belknap, I. 239. 
 
 "Ibid., I, 267. 
 « 
 
50 NEW HAMPSHIRE 
 
 demands were granted and a commission was issued to him as 
 governor on March 1, 1692.22 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. " Ibid., 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.''' 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, I, SIS. " N. H. Laws, I, 506. 
 
 " N. H. Prov. Papers, II, 277. " N. H. Prov. Papers, II, 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 been 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. Laws, I, 13, 517, S4S, 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., I, 623. " Ibid., I, 640. 
 
 •• Ibid., I. 63S. " Ibid., I, 6S9. 
 
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 »ee 
 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. Papera, 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.^* 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 poUs.^' 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. 
 
 "Ibid., iO. "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." " 
 
 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 :^^ 
 
 "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., 1, 156. 
 
 'Ibid., I., 147. 'li'd: I; 148. 
 
 •Staples, Annals of Providence, 61. 'Ibid., I, 149. Arnold, I, 202. 
 
 ' R. I. Recs., I. 148. • Ibid: I. 1«- 
 
 61 
 
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., 1,229. 
 
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 Collonie 
 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. Reca., 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. . . ."!« 
 
 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 lawfuU for 
 such officer, so left out, to serve in the roome of the deputy 
 chosen for that present court." ^^ 
 
 ■• R. I. Recs., 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 assembly 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 
 office 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. " 6. I. Records, I, 317. 
 
 " Osgood, 1, 358. Note. " Ibid., 1, 236. 
 
 5 
 
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.2' 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., 1, 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.^1 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., I, 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 appear9.nces 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. "1 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 eflfect. 
 
 •• R. I. Recs., I, 222, 364. 
 
 •■ Ibid., II, 6. •= Ibid., 11, 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 ffor 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 assemblies 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. Rec3., Ill, 29, 84, 89. " Ihid., I, 300. 
 
 "Updike, I, 333. "Ibid.. II, 465. 
 
 "R. I. Recs., Ill, 121. "Ihid., II, 396, 527. 
 
 " Staples, 61. " Records of the Town of Portsmouth, 163-174-177-212-228. 
 
 "R. I. RecB., 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. •• /iid., Ill, 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, 1665, 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. «• /iitd., II, 584. 
 
 » R. I. Recs., II, 482. "Ibid., HI, 125, 161. 
 
 "Ibid., II, 63, 124, 130, 131, 144, 145, 150, 151, 180. 
 
 '•Ibid., Ill, 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. Xwo 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 
 1702.8' 
 
 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.'^ 
 
 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. 
 
 "Ibid., 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 Barrington, and removed there with his family, is also 
 elected a Deputy for the said Town of Barrington; whereby a Vacancy 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 FVeemen, 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 1 783,1"° 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 wliicli 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 State." "^ 
 
 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 Ofiicers 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. . ." "=< 
 
 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. 
 
 ina Reprints of R. I. Acts and Resolves, June, 1783, 3. 
 "" 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 official 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. Reca., I, 1-9. ' Hartford, Weatherfield. Windsor. 
 
 » Osgood, I, 305. ' Conn. Recs., I, 24. 
 
 80 
 
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. Ubid., 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). 
 
 10 "General Court" is used in the colony records until the division into two houses 
 October, 1698 (Records IV, 282). 
 
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,^^ a 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. 
 
 1* 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 turniahea 
 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. 
 
 "Ibid., 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, 1678.2" j^, ^11 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. 2' 
 
 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 of ten. ^^ 
 
 Haddam had as its deputy in the General Court of October, 
 1673, John Gilbert.^' Gilbert, though a non-commissioned 
 ofificer 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., 11. 521; Schenck, History of Fairfield, I, 351. 
 
 "Ibid., II, 209, 300, 318; III, 16. 
 
 M Ibid., II, 300. " Huntington, History of Stamford, 63. 
 
 '• Ibid., II, 518. '• Conn. Recs., II, 209. 
 
 " Ibid., II, 300, 318; III, 16, 17. " Ibid., II, 524. 
 
 "Ibid., Ill, 121. "Ibid., II, 286. 
 
84 CONNECTICUT 
 
 a resident of New Haven.^s 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 oilice 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.3^ 
 
 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.^6 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. 
 
 " Ibid., 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. 
 
 ■I Davis, History of Wallingford, 750-751. 
 
 "Conn. Recs., IV, 91, 102, 130. "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,^^ 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^', 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, IS; 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, tl seq. 
 
 "Ibid., Ill, 2-2S3. •'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 1777-1778.60 
 
 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. 
 
 "Ibid., XIV, 33, 72, 159, 213, 252, 353. 
 
 •» Public Records of the State of Conn., I, 3, 62, 90, 408, 410, 469, 473, 522. 
 
 "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. HoUister 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 'let 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. 
 ■< HoUister, 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. 
 
 •• Hollister, 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." i 
 
 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 officers 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, 15. 
 
 93 
 
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 Haver;, 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 Southold. 
 " 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 
 theGovernmentof 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 agent§. 
 
 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, 111. 
 
 96 
 
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 fifebruary 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. 
 
 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 
 office 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 
 seeme 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";>» 
 
 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." " 
 
 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. ^^ 
 
 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. 
 
 '■/6»U, III, 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. Y. Col. Docs., Ill, 317. 
 
 " Ibid., Ill, 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 assiened 
 to each. 
 
NEW YORK 101 
 
 "The Charter of Liberties and Priviledges, 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; lUd. note p. 382; N. Y. Col. Docs., Ill, Note p. 355; N. Y. 
 Col. Laws (1664-1776), I, HI. 
 
 I' 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. Y. Col. Docs., Ill, 357, " Journal of the Legislative Council, I, XIV. 
 
 "Ibid.. Ill, 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 difTerent 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. Y. 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 1691.'" 
 
 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, 1690. 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 statement of the various elements entering into the Leisler Rebellion, 
 see Osgood. Ill, 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. Y. Col. Docs., Ill, 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 differences 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. Y. 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 Dwelling 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. Y. Col. Laws, I, 405. In the Journal of the Assembly the proceedings from 
 April 25, 1699, to October 29, 1 700, are missing, so we do not know the arguments advanced 
 for and against this measure. 
 
 " N. Y. 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 tlie 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, 1700," 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, I, 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 SheriiT of Orange 
 County, hath lately retiirned 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. Doc3., 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 affect 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. 
 
 8 
 
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. Y. 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 those 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 raembers 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 city 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 i,t 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 iit 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, 2a. 
 
 "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 Morria-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. Y. 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- 
 
 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 180r* 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 cliosen 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, 1 874. 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 sheriffs, 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 which the member is 
 chosen. 
 
NEW YORK 127 
 
 "It is my opinion that 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 115-117. 
 
 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 17S0 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. ' Ihid., 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 NicoU's land grants.' 
 
 ■ Learning and Spicer, 14-15. 
 
 ' The towns explained the appearance of their representatives at the first session by 
 saying the men who pretended to represent them had no authority to do so but had been 
 chosen by some of their friends (Middletown Town Boole). 
 
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. 
 
 i« N. J. Arch., I, 154. " Jbid., 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 dwelling 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, II, 191. "Ibid., 1S5. 
 
 ■• Learning and Spicer, 154, ISS. "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. . . ."!' 
 
 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 
 
 H 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 different dates of 
 election in the different tenths.^' Such an arrangement as 
 
 =" Learning and Spicer, 423. " A Civil and Political History of New Jersey. 
 
 'I 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 ofificers 
 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 different 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 places 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 ofifering 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 sheriiT, 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., Ill, 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. Arcli., Ill, 54. ■• Ibid., Ill, 96. 
 
NEW JERSEY 143 
 
 This recommendation was favorably acted upon and the 
 additional instructions reached Cornbury in the spring of 
 ITOS.*" 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 han.d 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, 96-98. " /H(f., 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. 
 
 "Acta 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 
 
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 :** 
 
 "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- 
 
 " N. J. Arch., IV, 2, II (Note). 
 
 <• N. Y. 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 
 collection** 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. 
 
 ** AUinaon. 
 
 " 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 affairs. 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.^ 
 
 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. 
 
 ' AH these can be found in Pa. Col. Recs., Vol. I and 11. 
 
 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 different 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. '• IhU.. 99. 
 
 '/Wd., 97. >md., 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. ^^ The 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. n 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 said 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." ^^ 
 
 I' 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 
 bumbly 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, I, 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. 
 
 2* 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 ha.ve 
 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. 
 
 •I Charter and Lawa, 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 lawa 
 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, 213. 
 
 " Statutes of Pennsylvania, II, 213-214. In this connection it is interesting to note 
 that the Pennsylvania constitution of 1790 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.^ 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 
 
 1 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." 6 
 
 The governor was not satisfied with the answer 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 while 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. "Ibid., II, 130, 131. 
 
 "Ibid., II, 127-129. "Ibid., II, 132. 
 
 " Hereafter in referring to tlie "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 goyernment 
 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 1734 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, Thg 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.^" 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. 
 
 "Ibid. Art. 3. 
 
 so "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 
 
 ' 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 
 
 sArchives, Council (1636-1667), 59, 70, 89, 91. 
 Archives, Assembly (1637-8 — 1664), 2, 87, ei. seq. 
 
MARYLAND 171 
 
 chances 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 burgess, delegate, deputy, used inter- 
 changeably. The term delegate came to be the one most commonly used, however, 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 Writ, 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. 
 
 10 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 
 
 "Lawa of Maryland (1638 O. S.), Bacon Edition. 
 
 "Archives, Assembly (1637-8 — 1664), 74-75. Tiiis would also have made the as- 
 sembly a representative rather than a primary legislative body. 
 
 "It should J)e 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. . . 
 July, 1642.... 
 August, 1642.. . . 
 December, 1642. 
 March, 1643... 
 November, 1644. 
 December, 1647 
 
 'burgesses' 
 
 'Burgesses' 
 
 'freemen or Deputies' 
 
 'freemen or proxies' 
 
 'freemen only' 
 
 'freemen, proxies or burgesses' 
 
 '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 ffreemen 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 ffreeman 
 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 
 
 "Archives, Assembly (1637-8—1664), 74-75. 
 
 " 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, 1637-8 
 —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 sheriffs 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, Asaembly (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 flfreemen their 
 Delegates and Deputyes hath hitherto been altogether un- 
 certain from the very beginning of the Seateing of this Prov- 
 ince." '" 
 
 So 
 
 . . . "ffor the setteling therefore of the mindes of the ffree- 
 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 thea 
 presented a proposal which they hoped would 
 
 "Archives, Assembly (1678-1683), 61-62. 
 "Archives, Council (1671--1681), 378-379. 
 "Ibid. (1681— 1685-6), .15. 
 
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 
 
 . . . "wholegally 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- 
 sentative 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 jnay 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), 35S. 
 
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 . . . ,"'' 
 
 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 ofiSce of trust or profit should be open to anyone 
 who had not resided in the province tliree years. (Archives, Assembly, 1700— 17X)4, 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 
 (171S-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 ffreehold of fififty 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 repi-esentatives 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 1709.5" 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. 
 "Ihid. (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. 
 
VIRGINIA 
 
 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, S. ' 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, 
 
 (c) Smythe's Hundred, 
 
 (d) Flowerdieu Hundred, 
 
 (e) Ward's Plantation. 
 
 3. James City: 
 
 (a) James City, 
 
 (b) Argall's Gift, 
 
 (c) Martin's Hundred, 
 
 (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 terra "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 Oournals 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 privileges 
 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 o/ two burgesses out of every 
 town, hundred, or other particular plantation, to be 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., I, 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 officers 
 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.i^ 
 
 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. 
 
 •' 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, IS. "'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. . . ." ^* 
 
 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 qualified 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 conforme yourselfe." ^^ 
 
 "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 discreet 
 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, Councill & 
 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. 
 
 •1 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.*^ 
 
 " 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, farming 
 Essex and Richmond (Howes, 463). 
 
 " Bruce, Social Life of Virginia, 63. 
 
 "Journals of the House of Burgesses, 1659H50 — 1693), X. 
 
 " Bruce, Institutional History of Virginia, II, 421-422. 
 
 "Journals of the House of Burgesses (1659-60 — 1693), 122. 
 
 <■ Ibid. (1659-60—1693), XI. 
 
 "Colonial Virginia Register, 36, 42; Bruce, Institutional History, II, 24. 
 
 " Journals of the House of Burgesses (1659-60 — 1693), 126. 
 
 " Ibid. (1659-60—1693), XI. 
 
 « 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 elaborate 
 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 most 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., Ill, 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 differing 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 auch 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 
 
 1 N C. Col. Recs., I, 23. ' lUd., 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. ' md., 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 chief e 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. nibid., I, 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, 
 
 (c) Caciques, 
 
 (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. 
 
 '•Ibid., I, 199. "Ibid., I, 181-183. 
 
NORTH CAROLINA 205 
 
 persons chosen by us being added and who for the present 
 represent the Nobility 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. 
 
 le Osgood, II, 235; N. C. Col. Recs., I, 183-187. " N. C. Col. Recs., 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. 
 
 '• 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. 
 
 " 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 commissions^ 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.s* The governor's suggestion brought action for the 
 law of 1715 was 
 
 . . . "Repealed by his Majesty's order" ,s' 
 
 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 ofiice 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. 
 
 " Ihid., Ill, 93. " Raper, 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 approval.^^ 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., Ill, 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. 
 
 14 
 
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 Eden ton, the principal town of his county, from 
 1754 to 1757, and for the county of Chowan for 1760 and 
 1761.^^ Another Chowan resident 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.« 
 
 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. ••J6»d., IX, 733, 734. 
 
 " Ibid., IV, 81S, 856; V, 232, 521, 893; VI, 390, 662, 893. 
 
 " Ibid., VI, 800. 
 
 » Ihid., 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. Rec3., IV. 81S. " 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.^* 
 
 6" 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 Issiie 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 effect.^" 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.12 As we do not have a copy of this its 
 
 • N. C. Col. Rec3., 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. 
 
 " 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 1 704. 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. 
 
 " 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; . . ." ^o 
 
 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." ^g 
 
 " Coll. Hiat. 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, S0-5S. 
 
 " 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, ISO. 
 
 "Ibid., II, 145-148. "Ibid., II, 143. 
 
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.), Ill, 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 with 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.^' 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, 1760-1762.3' 
 
 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." 
 
 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. 
 
 " Ihid., 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; Xin,23S; 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 1748. 
 
 St. Bartholomew 1748 and 1749. 
 
 (Chose to represent the latter in 1748.) 
 
 Prince William 1749. 
 
 (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 1746-47.*' 
 
 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. 
 
 "/6.ii.,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,^^ 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 ofiScial 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. -. . ou , »oi, 
 
 " Coll. His. Soc. of S. C, IV. 
 
 "Assembly Journal, XXXII, 1; XXXII, Part 2, 1; XXXIII, Part 2, 3; XXXVII 
 Part3, Pref.; XXXVIII, 8; XXXIX, 1; XXXIX, Part 2, Pref. ■ , ^ v ., 
 
 " Ibid., XXXV, Part 2, 1; XXXVII, Part 2, 1. 
 " S. C. Mag., Ill, 62. 
 
 "Assembly Journal, XXX, 263; XXXI, 3; XXXII, 27; XXXII, Part 2, 0- XXXIII 
 Part 2, 7. 
 
 "Ihid., XVIII, 3; XIX, 1; XXIV, 89; XXV, 1; XXVI, 5. 
 "Ibid., 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. 
 
 M 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. 
 
 " Assembly Journal, XXI, 1, 35, S3, 79; XXII, 3; XXIII, 16,48; XXXI, 5; XXXII 
 1; XXXII, Part 2, 0; XXXIII, Part 2, 3. 
 
 ulhid.. 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, S; XXX, 17, 20, 31; XXXI, 3; 
 
 "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, Winyaw, 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. 
 
 ^'Ihid., XIII, 245; XIV, 4; XVII, Preface; XVIII, 3, IS, 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, S; 
 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 
 quaUfy.''^ 
 
 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. 
 
 " Ihid., 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, S; XXXI, 3; XXXII, 1; XXXIV, 1, 3; XXXV, 1, 5. 
 
 ^'Ibid., XXVII-XXXII. 
 
 "Ibid., XXXIV, 236; XXXV, 1; XXXVI, 256; 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 affect 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. " Ibid., 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 qualification demanded of one who wished to stand 
 for election as a non-resident in comparison to the property 
 qualification 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 affairs 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 OfSce. (Annual Report American Historical Association, 1913, 321-406.) 
 
 •Ga. Col. Reca., XIII. 3. "Doyle, I, 40S. 
 
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 own Right in this Province of a Tract of Land con- 
 taining at least fifive 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 
 
 I'Ga. Col. Recs., XIV, 590; XV. 6, 303. "Ibid., XIII, 7, 81. 
 
 "Stevens, II, t04; Knight, I, 331. i' 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.^1 
 
 Henry Young represented the Islands in 1755-56; Vernon- 
 burg in 1763; and the Islands again in 1772.^^ 
 
 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.26 
 
 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.^9 
 
 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. 
 
 16 
 
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.^2 
 
 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, 11, 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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VITA 
 
 The author of this study was born in Marengo, Ohio, on 
 December 5, 1884. His early education was in the grade 
 schools and high school of that town, graduating from the 
 latter in 1901. In the fall of 1904 he entered the University 
 of Chattanooga, from which institution he received the degree 
 of A.B. in 1908. 
 
 The next four years were spent in educational work in the 
 South under the direction of the Board of Education of the 
 Methodist Episcopal Church. In 1912 he entered Columbia 
 University as a graduate student and was in continuous res- 
 idence at Columbia until 1914, in which year he received the 
 degree of A.M. In August of that year he was chosen pres- 
 ident of Grand Prairie Seminary, Onarga, Illinois, a position 
 which he held until resignation in June, 1918, to enter the 
 work of the Army Y. M. C. A. 
 
 Following his discharge in February, 1919, the author spent 
 the next four months at the university and at Columbia, 
 South Carolina, completing the collection of the material for 
 this dissertation. 
 
 On June 1, 1920, he became State Student Secretary of 
 the Illinois Y. M. C. A., but in August was transferred to his 
 present position as secretary of the Student Branch of the 
 Cleveland Y. M. C. A., with special responsibility for the work 
 at Western Reserve University and Case School of Applied 
 Science. At the latter institution he is also in charge of the 
 department of Economics. 
 
 257 
 
/