In 1706, Jamaica's provost marshal received a writ of escheat from the island's Supreme Court of Judicature. The writ directed him to empanel a jury of “Twelve and Lawful Men of the Neighbourhood” who would determine whether the slaves of James Whitchurch, a Jamaican merchant, should be escheated—returned—to the Crown. Did the “Negro Woman Slave Commonly Called Catalina” and her “Seaven Pickaninny” belong to Whitchurch, or could Queen Anne claim her prerogative right to an escheat because the previous owner of the slaves, Charles Delamaine, had died without an heir?Footnote ¹ The jury found in the Crown's favor, but a dissatisfied Whitchurch petitioned Queen Anne for relief, asking her to return the slaves and quiet his title. Whitchurch's petition, the first Jamaican escheat case to come before the Queen, sparked a transatlantic legal controversy as colonists, Assembly members, and imperial officials weighed the Crown's prerogative right to escheats against local political grievances and the Board of Trade's desire to encourage West Indian settlement and trade. This seemingly mundane conflict over property law quickly acquired constitutional significance, generating the kind of rights talk so familiar to early American historians: Jamaican colonists claimed the rights of Englishmen, and the Jamaican Assembly asserted an institutional capacity akin to Parliament. In this article, I contextualize colonists' rights talk, rooting their claims to English rights in concerns about the administration of property law during a crucial liminal moment in Jamaican history. As the colony transitioned from a small-scale to a large-scale plantation economy and from a society with slaves to a slave society, property and the law that governed it became the focus of intense political conflict.Footnote ²

In uncovering the property law roots of rights talk in colonial Jamaica, I reinforce and extend scholarship that places the varied practices of claiming, distributing, and improving land at the heart of British colonization enterprises.Footnote ³ Also, I build upon recent studies that look beyond constitutional rhetoric to examine the substantive concerns that gave rise to rights claims.Footnote ⁴ Whereas an older historiography used colonists' references to English rights and liberties as evidence for an ideologically liberal or republican worldview, historians recently have begun to unearth the disputes over property that generated constitutional conflict.Footnote ⁵ Dan Beaver, for example, has found that processes of land distribution, title recording, and even the recorder's office itself were sites of intense political contest in the Massachusetts Bay colony.Footnote ⁶ Analyzing the Mohegan Indian land case in colonial Connecticut, Craig Yirush, too, has revealed how easily conflicts over property could become proxy battles for larger constitutional concerns.Footnote ⁷ And, as Mary Sarah Bilder has noted based on her reading of Rhode Islanders' appeals to the Privy Council, arguments about property law were an important part of the “transatlantic constitution” in the early eighteenth century.Footnote ⁸ These scholars have confirmed Philip Girard's contention that “property is always political,” particularly in British settler societies.Footnote ⁹ As the foundation of political life, a source of wealth, and the physical link between the quick and the dead, few topics excited British colonists more fully than property and the law regulating it.Footnote ¹⁰ It should not surprise us, then, that the seemingly quotidian activities of granting land, administering estates, and documenting title were ready vehicles for constitutional conflict, or that in plantation colonies the same concerns would attach to slaves as property, as Claire Priest recently has shown.Footnote ¹¹

Despite the inherently political nature of property and property law, however, constitutional conflicts over land and slaves occurred at particular moments and for particular reasons. One of the merits of this type of small-scale reconstructive legal history—beyond revealing that property law was important to colonists—is that it forces scholars to attend to the concrete local circumstances that gave rise to colonists' claims, and, therefore, has the potential to broaden our understanding of colonial societies at different stages of development. In this case, examining the escheat controversy provides a glimpse of Jamaica at the turn of the eighteenth century, a period of tremendous change as the colony transitioned to large-scale plantation agriculture and as colonists accelerated their reliance on slave labor in the decades before Jamaica's mid-century economic boom. It shows how law, and particularly escheat, facilitated that transition. In the context of turbulent socioeconomic conditions in the island between 1670 and 1720—including catastrophically high death rates, natural disasters, and near-constant warfare—escheat facilitated large plantation formation as colonists used this legal process to acquire valuable land and slaves from their less fortunate neighbors. At a moment when Jamaica's developmental trajectory appeared uncertain and when it seemed that large individual fortunes might be built from abandoned estates, escheat became politicized, and governors' attempts to manipulate escheats absorbed and redirected a multitude of other seemingly unrelated concerns. Questions about the Jamaican Assembly's role in local politics, the integrity of the island's judicial institutions, and, most importantly, who would control the trajectory of Jamaica's development, all were layered atop this squabble over the taking of one man's slaves. Given these high stakes, it is unsurprising that Jamaican colonists would claim English rights, and that these rights were rooted, not in abstract notions of justice or liberty, but in practical and tangible concerns about property law.

Because historians have almost entirely overlooked escheat as a subject of historical inquiry, in this article's first part I examine escheat as a legal concept and as a process.Footnote ¹² I then turn to a discussion of the escheat controversy itself, focusing on colonists' complaints about escheat through the lens of the Whitchurch escheat, the first escheat case that appeared before the Crown. In the second section, I also examine how the Assembly sought a legislative solution to escheats that the governor and Council resisted. Their resistance ultimately led members of the Jamaican Assembly to assert an institutional capacity akin to Parliament, and to claim the rights of Englishmen. I pause, then, to place these claims in their early eighteenth century context, arguing that rapid social and economic changes in Jamaica help to explain why escheat became politicized at this particular moment. Broadening from a local to an imperial context, the article's final section examines how the Board of Trade intervened in this controversy in order to both further imperial economic policies and realign the Jamaican constitution within their broader constitutional vision of empire. This final section reveals that property law not only interested colonists, but also preoccupied imperial administrators who were intensely concerned with ensuring Jamaica's productive settlement and protecting its increasingly valuable trade.

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Escheat denotes a process by which the land of a tenant seized in fee was returned to the lord from whom that tenant held it under two conditions that interrupted the normal course of descent: when a tenant seized in fee died without heirs (aut per defectum sanguinis) or if the tenant committed a felony (aut per delictum tenetis).Footnote ¹³ Along with wardship, relief, and aid, escheats were considered incidents of tenure; that is, payments or obligations that tenants owed the lord from whom they held real property.Footnote ¹⁴ Undergirding escheat was the theory that lands are always held of a superior lord pursuant to an original grant, and that the tenant does not own land, but only an estate in land. Therefore, when the estate terminated (because a tenant died without heirs or committed a felony), it reverted to the lord from whom it was held, who could regrant it at his pleasure.Footnote ¹⁵ Although theoretically the immediate lord of whom land was held benefitted from escheats, when the lord could not be found, the Crown was entitled to escheats. In the wake of Quia Emptores, which abolished subinfeudation, escheat increasingly operated in the Crown's favor, and the right of escheat came to be considered a Crown prerogative.Footnote ¹⁶

Little scholarship addresses the process by which lands were escheated in either medieval or early modern England. It does seem clear, however, that by the seventeenth century, escheats no longer provided a significant revenue to the Crown, nor did the Crown vigorously collect escheats.Footnote ¹⁷ Given the declining importance of escheat revenues in England, then, it is interesting that legal frameworks for escheat were constructed at an early date in a number of Caribbean and mainland colonies, including Jamaica, Virginia, Barbados, the Leeward Islands, Maryland, and Carolina.Footnote ¹⁸ In Jamaica, as in other colonies in which the Crown was the grantor of all land, establishing a procedure for escheat may have seemed particularly important, not simply because the sale of escheats would provide the Crown with a source of revenue, but also because the escheat and regrant process would help to ensure that patented lands were used productively. If a settler patented lands but then died without an heir, the Crown could take the land back and regrant it to a colonist who could contribute to the imperial economy by improving the land and bringing its resources to market. Also, escheat helped to ensure that North America was peopled by settlers—not absentee speculators—who could serve in militias and defend imperial borderlands. Finally, escheat also was useful as part of a larger process by which the Crown fully expressed its dominion and imperium in the New World against the competing claims of other European powers. As Ken MacMillan has shown, under the Roman law that guided English monarchs as they claimed land overseas, only physical control over territory—not a mere act of will or intent—could establish legal possession. By ensuring that colonists were planted on vacant land, escheat allowed English monarchs to retain physical control over portions of North America in the face of demographic instability, and thereby helped to realize English claims to sovereignty.Footnote ¹⁹

In Jamaica, the escheat process was outlined in royal instructions to governors as well as local statutes. Most governors arrived in Jamaica with a set of lengthy instructions from the Crown. These unpublished missives contained a variety of administrative prescriptions, including information about how the governor should collect the Crown's incidents. Jamaican governors were advised routinely, for example, that they should not regrant any escheated properties valued “above the sum of Ten pounds” without first alerting the Crown.Footnote ²⁰ More importantly, in An Act for Prevention of Lawsuits (1681), the Jamaican Assembly specifically prescribed the legal process by which real property could be escheated. Adhering to English practice, the statute stipulated that escheats would be determined by an inquest of office, initiated through a writ of escheat directed to the provost marshal.Footnote ²¹ At the inquest, a jury of “Twelve Free and lawful Men upon their Oaths” were to determine the value of the decedent's real estate and whether the Crown was entitled to an escheat of any property. If the jury found an escheat for the Crown, it was to inform the Supreme Court of Judicature, which would record the judgment.Footnote ²² Significantly, the statute also empowered the governor “to pass any Grant of the said Escheated Estate under the Broad Seal of this Island,” with the caveat that the grant should contain a clause invalidating the instrument if an heir should appear within three years of the patent date. The value of the escheated estate, as appraised by the jury, would be paid into the treasury three years after the patent date, should no heir appear.Footnote ²³

This statute is significant for three reasons. First, by authorizing the governor to grant escheated property, the Act provided the governor with a significant perquisite. The governor's capacity to regrant escheated property allowed him to reward favorites with the option to purchase choice property at no cost to himself. The patronage possibilities opened by the Act, then, also created an incentive for a governor to disregard his royal instructions, which specifically prohibited him from regranting any lands valued at more than ₤10 without the Crown's permission. As Jamaican colonists alleged during the escheat controversy, governors purposefully avoided these instructions, rigging juries to value escheated properties at less than ₤10.

Second, the Act is also remarkable for what it does not contain: a schedule for the descent of intestate property, or a provision specifying when property should escheat. During the period of study, Jamaica did not have an intestacy statute. This is in contrast to mainland colonies such as New York and Pennsylvania.Footnote ²⁴ Lacking an intestacy statute, Jamaicans assumed that the descent of intestate real estate would adhere to common law and English statutory rules.Footnote ²⁵ Jamaicans were quite insistent that they had imported English intestacy law wholesale, despite the fact that the Crown had, on several occasions, disallowed attempts to receive the entirety of English law.Footnote ²⁶

Finally, and perhaps most importantly, the statute does not specifically address whether slaves were escheatable property. How slave property should be classified was an issue of vital concern in all colonies that relied upon slave labor. In the absence of applicable common law precedents, Jamaicans resolved this issue by statute in 1696, classifying slaves as real property that would descend according to the common law rules of inheritance.Footnote ²⁷ This would occur, however, only after all of a decedent's debts had been paid. By reclassifying their slaves as real estate—not chattels—Jamaicans hoped that an estate, including the labor force that often constituted the bulk of its value, would descend to the heir intact. But as Claire Priest has shown, by moderating their statute to allow creditors to seize slaves, Jamaicans and other colonists in plantation America also protected their credit with English merchants (who were unlikely to extend credit when assets could not be attached).Footnote ²⁸ For our purposes, the classification of slaves as real estate was also important because it meant that slaves were escheatable. This was a remarkable deviation from English practice, in which only real estate—understood as land—could escheat.

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Although royal instructions and the 1681 Act highlight how the process of escheat should have worked in Jamaica, it is difficult to ascertain how escheat functioned in practice. A description of the escheat process written by Governor Hamilton in 1712 provides some insights. Hamilton noted that the 1681 law was “punctually observed & complied with” with regard to escheats, observing, however, that those who prosecuted escheats often had taken possession of the property prior to initiating legal proceedings. According to Hamilton, the most common circumstances under which escheat occurred were those in which a young ward died without heirs (in which case the guardian took possession of the property and subsequently sought a writ of escheat), or in which settlers patented land and then permanently left the island. In the latter case, he observed that these lands often “returned to waste” and languished for decades prior to being pursued by some industrious planter. It also seems that those who provided information about probable escheats were given a customary right of first refusal.Footnote ²⁹

Quantifying the number of Jamaican escheats in any given year is a similarly difficult task given the lack of relevant statistical data.Footnote ³⁰ Nonetheless, the realities of life and death in Jamaica supply some basis for thinking that death without an heir, whether the decedent died intestate or not, was a common occurrence in the island, and, therefore, that the conditions precedent for escheat were met frequently. As a number of scholars have shown, Jamaica was the graveyard of the West Indies, a colony where men lived fast and died quickly. Trevor Burnard's examination of the parish register in St. Andrews Parish, Jamaica between 1666 and 1744, for example, reveals a society experiencing near-catastrophic death rates.Footnote ³¹ In this high-mortality environment, property was likely to change hands frequently and suddenly, and the likelihood of dying without an heir was high.

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From a modern perspective, escheat may seem an insignificant feudal relic. But to Jamaican colonists, it became a contested political issue. Beginning in 1708, Jamaicans who felt that their property had been wrongly escheated turned to imperial authorities for a resolution of their individual escheat cases. An examination of the Whitchurch case, the first Jamaican escheat case appealed to Queen Anne, reveals that colonists perceived the escheat process to be unjust, arbitrary, and susceptible to manipulation by interested individuals, and that these abuses suggested deep constitutional flaws. In particular, colonists expressed concern that the Jamaican constitution allowed the governor too much power in administrating law in the colony, particularly property law.

James Whitchurch (sometimes called Whitechurch) “of the City of London Merchant” petitioned Queen Anne in 1708, complaining that Governor Handasyd had “caused” his slaves to be escheated to the Crown. According to Whitchurch, the prosecutors of the escheat wrongly alleged that Charles Delamaine, the son of Wroth Delamaine (who was the original owner of the slaves) had died without heirs, and that the slaves therefore did not belong to Whitchurch, but could be escheated to the Crown. Whitchurch averred that his late wife, Sarah, had acquired the slaves from the administrator of Wroth Delamaine's estate in payment of a debt. Through his marriage to Sarah, Whitchurch in turn acquired title to the slaves, and “had many years quiet possession of the said Negro woman and her family.” Nonetheless, as the merchant attested, the governor permitted Richard Rigby, the island's secretary, to take out a writ of escheat for his slaves when Whitchurch was sojourning in London. After the inquest jury delivered a judgment in the Crown's favor, the governor granted the slaves to Rigby. Whitchurch prayed for relief from the Queen, asking that she command the governor to return his slaves and quiet his title.Footnote ³²

Whitchurch's prayer rested upon three grounds. First, he claimed that an Act of the Assembly of Jamaica (passed in 1698 and confirmed by the Crown in 1700), which quieted possession of “Lands, Tenements, Hereditaments, or Negroes, who had been Five Yeares in quiet and peaceable Possession,” applied in his case against the Crown. According to Whitchurch, this Act was passed in the wake of the “great Earthquake and dreadfull Fire at Port Royall,” which destroyed a “great part of the Records of the said Island, and your Petitioner's Papers and Writings, which would have made out his Title to the said Negro woman and her Family.” Significantly, Whitchurch also asserted a broader, public policy argument, insisting that failure to stay these types of proceedings when Jamaicans were sojourning in England would “very much discourage Your Majesty's Subjects from trading to the said Island or purchaseing Estates there.”Footnote ³³ This argument proved especially persuasive to members of the Board of Trade, who were interested in settling the island in the context of the development of absenteeism as a social practice.Footnote ³⁴

Finally, Whitchurch highlighted what he believed to be procedural irregularities, claiming that the proceedings in this case were “without President [sic],” and, moreover, that the governor acted in this case “contrary to the Opinion of the Chief Justice of the Island.”Footnote ³⁵ As Whitchurch's petition and a letter from his attorney, William Puckle, attest, Whitchurch's counsel sought additional time to traverse the escheat judgment, and the chief justice was inclined to grant a request to continue the proceedings until the attorney received directions from his client. The chief justice, however “was overruled by the rest of the Justices.” Puckle was forced to traverse the judgment immediately, and although he argued that the inquest found on the writ of escheat was “full of Incertainty and for which we had great reason to believe would have been quashed especially wherein it concerned the interest of a gentleman that was off the island,” it “proved to no purpose.”Footnote ³⁶ Upon receipt of Whitchurch's petition and supporting documents, the wheels of the imperial state began to turn. First referred to the Board of Trade, the case was then transmitted to Her Majesty's Solicitor General, James Montague, for a legal opinion. The Board's secretary, William Popple, included in his transmission a copy of “An act for confirming and securing titles to Estates,” and an abstract of Governor Handasyd's instructions relating to escheats. He asked the solicitor general to opine “[w]hether the Limitation of 5 Years possession, mentioned in the foresaid Act does bind the Crown, upon which the Petitioner's Title seems to depend.”Footnote ³⁷

Montague offered his legal opinion in April 1708, carefully balancing the Crown's interest in this particular case with a broader imperial goal of promoting West Indian settlement. The solicitor general first insisted that the Jamaican statute cited by Whitchurch's counsel could not prevent the Crown from enforcing its right to escheats, asserting that the Crown's title could not be “bound by any thing in the said Act.” He agreed with Whitchurch's counsel, however, that the inquisition “which finds the Queen's Title is not Valid in Law” because the inquisition return was too vague. More important for Montague, however, was the fact that Whitchurch had quietly enjoyed his property without interruption for many years, and that the inquest had been taken when Whitchurch was out of the island. Indeed, “after So long and uninterrupted Enjoyment, Every thing ought to be presumed that can be thought of in favor of the possessor,” especially “Since this Inquisition was Sett on foot in the absence of the Petitioner, even when he was out of the Isle after all his Papers had been Destroyed by the fire at Port Royall.” Rather than rigidly enforcing the Queen's right in this case, then, Montague believed that the Queen should quiet Whitchurch's title.Footnote ³⁸

Montague argued—and the Board agreed—that siding with the governor in this case would set a harmful precedent in that it might discourage the settlement of Jamaica. Specifically, if the Crown refused to corroborate Whitchurch's title, it would cast doubt on the validity of all colonial titles that could not be proven by written records. Moreover, it would signal to potential colonists that if they absented themselves from the island, their property could not be safeguarded until they returned. Few aspiring colonials would be willing to risk their lives and fortunes in the West Indies under such tenuous circumstances. Persuaded by Montague's reasoning, the Board sided with Whitchurch and other petitioners against the governor, and, technically, against the Crown's interest.Footnote ³⁹ The “due Protection and quiet enjoyment” of colonists' property, the Board concluded, was “absolutely necessary to the well carrying on the Trade of that Island so very beneficial to this Kingdom.”Footnote ⁴⁰

Weighing the Crown's interest in these particular escheat cases, then, against concerns about establishing a harmful precedent, the Board advised the Queen to forego her prerogative right to escheats, and to grant relief to the petitioners. And in order to prevent vexatious escheat proceedings in the future, the Board suggested that the Queen should instruct the governor not “to proceed against, or molest the Petitioners or any other” of the Queen's Jamaican subjects with escheat proceedings “without good and Sufficient grounds for his so doing.”Footnote ⁴¹ The Queen took the Board's advice, and on June 30, 1708, issued new instructions to Governor Handasyd, directing him not to regrant escheated property prior to receiving advice from the Privy Council.Footnote ⁴² Whitchurch and his fellow petitioners, then, seemed to have won the day. Their property was to be returned, and the Queen issued new instructions to Governor Handasyd. But this apparent victory was short lived. The Queen's intervention did not entirely curtail escheats, and the number of escheats per year continued to grow after Archibald Hamilton became governor in 1711. And as escheat proceedings continued into the Hamilton administration, colonists continued to express their discontent with escheats in the island. What, exactly, were their concerns?

As we have seen in the Whitchurch case, colonists argued that greedy governors had corrupted the escheat process in order to distribute ill-gotten property to informers and favorites. Whitchurch, for example, alleged that the governor sought the escheat of his slaves in order to regrant them to Richard Rigby, the island's secretary. An anonymous pamphlet published in 1714 echoed these concerns. The author of this pamphlet exhaustively chronicled the myriad ways in which Governors Handasyd and Hamilton, in conjunction with several island officials, manipulated the escheat process for their benefit. These “Escheat-Brokers” and “Escheat-jobbers,” according to the pamphleteer, rigged inquest juries to value properties at less than £10, so that the governor might evade his instructions and regrant properties without first obtaining permission from Whitehall.Footnote ⁴³ He further alleged there were “a sort of Protestant-Jesuits among us here,” who “by fallacious and metaphysical Distinctions, especially in Cases touching the Escheating of Estates” could “as nimbly trump up equivocal and elusory Solutions, for tender and scrupulous Consciences, as any Sorbon, St. Omers, or Salamanca Casuist Doctor of them all.”Footnote ⁴⁴

But corruption was a symptom of a larger constitutional problem, according to many colonists. The very structure of the Jamaican constitution endangered their property by allowing the governor too much power in administering property law in the colony. As the same pamphleteer complained, the governor of Jamaica was “not only CAPTAIN GENERAL and Commander in chief of that Island.” He was “likewise CHANCELLOR.” He had within his authority, moreover, “the granting of all Letters of Administration, all Probates of Wills and Testaments, all Licenses for Marriages.” In short, the governor of Jamaica was the “sole Judge of all Matters relating to the Consistorial or Ecclesiastick Law.”Footnote ⁴⁵ The last of these powers—the governor's ability to oversee the probate of wills and to issue letters of administration—was particularly troubling to Jamaicans concerned with escheats. According to them, the governor possessed a dangerous degree of power in handling decedents' property. And, colonists argued, governors routinely abused this power. They required executors to provide security equal to the value of an estate, which made it too expensive for many to act as executors. They also granted letters of administration to their cronies.Footnote ⁴⁶

An additionally problematic aspect of the Jamaican constitution from the perspective of colonists was the fact that one individual could hold multiple offices of profit in the island. The escheat-related antics of Richard Rigby specifically raised these concerns. As previously noted, Rigby pursued the Whitchurch escheat, and was considered by some to be a corrupt conniver and an all-around negative influence on Governors Handasyd and Hamilton. Jamaicans accused Rigby of applying his Jesuitical cunning to the “over-dextrous Management” of his multiple offices—he was both secretary and provost marshal—to the detriment of Jamaicans.Footnote ⁴⁷

Most significantly, as secretary, Rigby had access to the island's important records, including deeds, patents, and other conveyances, and it was alleged that he misplaced many of these in order to trump up escheat proceedings in which he was the ultimate beneficiary. In a memorial to the Board of Trade, Whitgift Aylmer, Francis March, and Thomas Beckford complained that Rigby had taken advantage of the fact that natural disasters destroyed many of the island's public records, and made “sinister uses” of the “causal losing of deeds…by pretended escheats.”Footnote ⁴⁸

This memorial highlights another issue that worried Jamaicans in light of escheats: their inability to prove title because of the loss of records. In every pleading, and in most documents presented to the Crown in support of colonists' pleas for relief, they alleged that natural disasters had impeded their ability to prove legal title. Although Jamaican statutes specified that conveyances of land and slaves should be recorded and saved, the realities of the West Indian natural environment made the keeping of records a near impossibility. As the trio of Jamaicans attending the Board of Trade observed, records had been “through the Course of Time, and the Influence of that Climate, worn and defaced; and many others quite lost, by the terrible Earthquake which happened there, in the Year 1692, the great Fire that destroyed all Port-Royal, a second Time, in the Year 1702, and the late dreadful Hurricane which happened in August 1712.”Footnote ⁴⁹ The loss of these records, Jamaicans believed, made it possible for individuals such as Rigby to manipulate the escheat process to the detriment of Jamaican property holders.

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In light of these interlocking concerns, an antigubernatorial faction within the Jamaican Assembly began to seek a legislative solution to the problem of escheats, which had become “so unsupportably vexatious, and grievous to the inhabitants.”Footnote ⁵⁰ Their strategy centered on the passage of four types of bills meant to regulate perceived abuses. First, the Assembly passed a bill that would prevent an individual from holding more than one office of profit on the island (the Multiple Offices Act). As members of the Assembly were not loath to admit, this bill specifically targeted Rigby.Footnote ⁵¹ Close to the same time, the Assembly passed a bill, ultimately entitled “An Act for the further quieting Possessions, and preventing vexatious suits at law” (the Quieting Possessions Act) that would quiet the titles of all who had been in possession of property for a given number of years against all potential claimants. Like the Multiple Offices Act, the Quieting Possessions Act was passed in direct response to the escheat controversy. This act would quiet all titles, even against claims by the Crown, and it would solve the problem of lost or missing records by making such records unnecessary in proving title after a stipulated period of time (which varied in different versions of the bill from 5 to 7 years).Footnote ⁵² As the drafters of one version of this act observed in the preamble, such legislation was necessary because “by the Earthquake and Fire at Port Royall, and by many other Accidents, some Records of this Island have been utterly destroyed and lost.”Footnote ⁵³

Moreover, the Assembly attempted to clarify probate procedure in the island and to regulate procedures for disposing of intestate property. Seeking to repeal an earlier act of the Assembly, which required executors of orphans' estates to provide security, they argued that the security requirement was inconsistent with current English law. The Assembly insisted against the Council's objections that “they ought to be on the same footing with the subject of England, otherwise a man could not commit the care of his estate and children to such as he thought fitting.” Jamaican planters wanted their family members to control their estates, but these family members often could not afford to pay the required security.Footnote ⁵⁴

The Assembly, too, sought passage of an act “for granting further relief in relation to the proving of wills and testaments and granting letters of administration of intestates estates” (the Intestates Estates Act). The purpose of this act was to transfer the authority to administer the estates of colonists who had died without a will from the governor to the Supreme Court of Judicature. Finally, the Assembly passed and sought assent for “An act to explain such part of a certain act, entitled, ‘An act for prevention of law-suits' as relates to escheats” (the Escheats Act). A copy of this act does not seem to have survived, but references to the act indicate that it provided for the sale of escheated property through public outcry. This would have prevented the governor from selling escheated property secretly, and thereby helped curtail the self-dealing practices that colonists such as Whitchurch criticized.Footnote ⁵⁵

To us, this legislation may seem like legal minutia, but in the context of early eighteenth century Assembly politics, these were bold attempts to alter Jamaica's unwritten constitution via statute. With each act, the Assembly declared its exclusive right to determine questions of property law, and asserted its authority to alter the ways in which decision-making authority was distributed in the colony. Whether stripping the governor of his power to oversee the administration of intestates' estates, altering the distribution of offices in the island, or determining when titles would be quieted, the Assembly gathered power to itself and insisted upon its pre-eminence within Jamaica's constitutional hierarchy. Here, we are seeing the Jamaican Assembly actively eroding gubernatorial power, precisely the same process that Jack P. Greene has described with regard to assemblies in the Southern Royal Colonies.Footnote ⁵⁶

The Jamaican Assembly's efforts to curb escheat-related abuses through legislation, however, were met with opposition. From the perspective of royal governors, attempts to reduce or remove their authority further complicated a relationship with the Jamaican Assembly that was already strained, in large part because the Assembly refused to grant the Crown a perpetual revenue. Forcing their governors to request individual appropriations for defense and internal improvements, the Jamaican Assembly had a long institutional history of squabbling with their executives over the power of the purse, one that culminated in particularly rancorous relations under the Handasyd and Hamilton administrations.Footnote ⁵⁷ In this highly charged political atmosphere, then, governors and Council members unsurprisingly viewed escheat-related legislation as an encroachment on their constitutional authority, and they maneuvered to block or amend proposed bills. In some cases, they specifically noted that constitutional concerns prompted them to reject legislation. The Council, for example, refused to pass the Intestates Act because they believed it would “transfer the power of ordinary from the governor, in whom his majesty had placed it.” They also cited policy reasons in rejecting other bills. Concerned that the Escheats Act “was inconsistent” with the act for quieting possessions, the Council observed that it would also “render the titles under escheat-patents so very precarious that nobody would venture to purchase them.” If titles to escheated land were disturbed via this act, this would prevent fallow land from returning to the market, and would thus hinder broader imperial goals of settling and cultivating the island.Footnote ⁵⁸

As members of the Jamaican Assembly became increasingly frustrated by their inability to secure desired legislation, debates over escheat bills were folded into a larger conflict over the Assembly's privileges, and particularly over its right to pass money bills. To a certain extent, this was a fight of the Assembly's own making. Desirous of passing escheat-related legislation without accommodating amendments from the Council, the Assembly began to “tack” escheat bills to money bills. The earliest incarnation of the Multiple Offices Act, for example, was tacked to an appropriations bill so the Assembly might refuse to conference with the Council. This tactic invited the governor's and Council's ire in a way that must not have been unexpected (and might have been welcome) to some Assembly members. In response, the Council insisted that they “would always, as much as possible lies in them, discourage all manner of tacks.” They also accused the Assembly of encroaching upon “their part of the legislature” by refusing “conference and amendments to any bill wherein any sum of money be raised or applied.”Footnote ⁵⁹

As escheat legislation became inextricably bound up with debates over money bills, relations between the Assembly and the governor (and Council) became more strained. With matters at a virtual stalemate, Assembly members began to explicitly compare their House with Parliament, particularly with respect to the House's exclusive right to pass money bills. For example, they insisted that, as a “body of English subjects,” and pursuant to “his majesty's letters patents and instructions,” they—like the Governor—were to conform their behavior “to the custom of England.” There, Parliament “have the sole right of raising money-bills.” The House could “not see, without manifest violation of their rights as Englishmen, how the assembly can be deprived of so essential a part of their liberties.” They sincerely hoped that “no one will conclude, that what is conformable to the constitution of England is a violation of that of Jamaica.”Footnote ⁶⁰ Although they were in Jamaica, they could not “forget that we are Englishmen, and the subjects of our good and gracious prince.”Footnote ⁶¹

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Colonists' rights talk met with continued opposition from the governor and led to a standoff that ultimately could not be resolved within the island. Participants, therefore, sought an imperial solution, packaging and presenting their arguments for and against escheat-related legislation before the Board of Trade in London. Before I discuss how the Board resolved this conflict, however, it is worth pausing to understand why a merchant's complaint about the escheat of his slaves generated this type of rhetoric. Why did Jamaican colonists so strenuously claim their English liberties in connection with what seemed to be a minor squabble over property?

Jamaican colonists, like colonists throughout the British Atlantic world, understood that property and the law that governed it was political,Footnote ⁶² but an underlying awareness that questions about the adjudication of property law were inherently political and constitutional questions may have been even more acute in Jamaica given its harsh demographic environment. As Vincent Brown has argued, it is difficult to overestimate the extent to which the ubiquity of death influenced the island's culture, including its legal culture. “Everyone dies,” notes Brown, “and in Jamaican slave society, death held everyone's attention.”Footnote ⁶³ Because Jamaicans were aware that their lives were unlikely to be long, they were particularly concerned to safeguard their property, not only for themselves, but also for their heirs. This world in which death might visit at any time was one of heightened anxiety, which contributed to the hyperpoliticization of processes that facilitated the transfer of property, just as it made “legal arrangements surrounding death” a “fundamental aspect of social organization.”Footnote ⁶⁴ This was especially true at the turn of the eighteenth century, as “any hope of maintaining or increasing white population disappeared.” As Burnard has shown, white demographic decline rapidly accelerated in the 1690s with dramatic implications for family formation and the trajectory of Jamaican social development.Footnote ⁶⁵ Many of these deaths resulted from disease epidemics—including yellow fever outbreaks—that followed the 1692 Port Royal earthquake and French military incursions into eastern Jamaica in 1694–95.Footnote ⁶⁶

Disease, natural disasters, and near-constant warfare made “the overall climate for development an uneasy one” in the late seventeenth and early eighteenth centuries.Footnote ⁶⁷ Nonetheless, white demographic decline also created unique opportunities for colonists who managed to survive. The deaths of small farm owners in developed areas of the island, particularly in the fertile Liguanea plain in St. Andrew's parish, for example, gave colonists with the capital to pursue an escheat the rare chance to acquire arable land at bargain rates. Although escheat lists from the 1680s and 1690s do not seem to have survived, the earliest extant list (produced for the year 1702—1703) suggests that settlers took advantage of the deaths of friends and neighbors, particularly in the island's eastern parishes, to acquire estates where obtaining land by other means would have been expensive or difficult. Out of ten escheats in 1702—1703, eight involved property located in eastern Jamaica: two in St. Andrew parish, two in Port Royal, two in Kingston, one in St. Thomas parish, and one in St. John parish.Footnote ⁶⁸ Anecdotal evidence of early escheats supports the impression that escheat activity may have been particularly concentrated around St. Andrew's parish, where “most of the available arable land had been patented by the early 1670s.”Footnote ⁶⁹ As colonist Thomas Parker explained in a petition to the governor, he sought the escheat of “a parcel of barren uninclosed Savana Land scituat in Liguania containing about 96 acres.” This choice real estate remained unclaimed after the land's owner, a female minor, had died in 1701 without heirs.Footnote ⁷⁰ Governor Handasyd, too, noted in a 1703 letter to the Board of Trade that one of the most valuable escheats in the island was located “in Liguany.”Footnote ⁷¹

Although historians concur that land engrossment “advanced noticeably” in the 1670s and 1680s, until now it has been “difficult to be sure how large planters added to their holdings so substantially” during this period, or to directly correlate Jamaican demography with plantation formation.Footnote ⁷² Escheat helps to link increasing white mortality to the rise of large-scale plantation agriculture in the early eighteenth century. It seems clear that escheat was one legal tool that allowed planters and merchants to acquire land from less fortunate colonists, and thereby consolidate their estates. Perhaps more importantly, however, escheat's role in facilitating large plantation formation also helps to explain why governors' interference in the escheat process—and colonists' inability to control escheats through legislation—prompted rights talk. As a means by which Jamaicans increased their land holdings in order to more fully participate in sugar production, escheat gave colonists the chance to buy arable property that otherwise would have been unavailable to them. When governors thwarted their economic ambitions and challenged their ability to amass large estates through escheat, they vociferously claimed the rights of Englishmen.

Escheat was not only a useful tool for engrossing land, however. It also allowed colonists to acquire the slaves necessary for plantation agriculture, particularly labor-intensive sugar production.Footnote ⁷³ And just as their declining ability to control the escheat of land angered colonists, so too did the loss of control over slave escheats. Between 1700 and 1730, Jamaica's slave population doubled, while the slave-to-white colonist ratio jumped from 5.41 to 11.27 between 1698 and 1722.Footnote ⁷⁴ This increase in the island's slave population, however, “was nowhere near enough to open up all the potentially available fertile lands,” and planter demand continued to rise.Footnote ⁷⁵ In this crucial period preceding the sugar boom of the 1730s and 1740s, as planters sought to clear forests and engage in large-scale sugar production, escheat provided an opportunity for settlers to acquire the slaves they needed to participate in a wider Atlantic economy. Local property law made this possible. As noted, a 1696 Jamaican statute categorized slaves as real estate for the purpose of inheritance after a decedent's debts had been paid.Footnote ⁷⁶ This arrangement offered important advantages to both British merchant-creditors and Jamaican debtors: it made slaves available for creditors to attach, but it also helped to ensure that slaves could descend to heirs along with the land that they worked. Crucially, it also meant that slaves could be escheated.Footnote ⁷⁷

Extant escheat lists reveal that Jamaicans increasingly took advantage of this classification scheme to escheat slaves as well as land. These lists provide tangible evidence of Jamaica's transition from a society with slaves to a slave society, and show how property law, and particularly escheat, played a role in that process. Whereas the 1702—1703 list described contains only one slave escheat (10%), in 1709, three out of six escheats were claims to slaves (50%). By 1712, however, seventeen out of thirty escheats involved slave property (57%).Footnote ⁷⁸ These figures suggest that colonists learned to skillfully use their local court system to effect transfers of valuable human property, leveraging escheat to satisfy their rapidly growing demand for slave labor. Not surprisingly, some Jamaicans balked when governors interfered with their plans to acquire the slaves that were needed to expand their plantation enterprises.

Escheat not only benefited colonists bent on acquiring land and slaves; it also was a useful tool for governors interested in supplementing their own income and the island's revenue during a period of near-constant warfare.Footnote ⁷⁹ When their use of this legal process infringed upon colonists' plans to acquire property, however, it provoked outrage and rights talk. Escheat was an important perquisite for Jamaican governors, who were authorized by a 1681 statute to regrant escheated property. This allowed them not only to reward favorites with land and slaves, but also to “sell” these properties to potential purchasers, as colonists were quick to note during the escheat controversy. More than a means to line their own pockets, however, escheat also offered cash-strapped governors a way to supplement the island's meager revenue. During this period, appropriations for defense and internal improvements typically were derived from impost taxes on liquor, which between 1680 and 1720 averaged only £4000 per annum, barely enough to support expenditures beyond the cost of fortifications and the governor's salary.Footnote ⁸⁰ As Governor Hamilton explained, “the Ordinary Revenue is not sufficient of itself to support the contingent Charges of the Government,” particularly as the financial demands of near-constant military conflict in the Caribbean made expenditures for fortification and troop billeting increasingly necessary. The profits from escheat sales—which by statute could be used to supplement the revenue—therefore offered a much-needed infusion of cash into Jamaica's treasury as well as the governor's privy purse.Footnote ⁸¹

The imperatives of finding additional revenue to fund the island's government, however, ran up against colonists' efforts to acquire property by fair means or foul. As documents produced during the escheat controversy reveal, not all colonists sought to amass land and slaves by bringing an escheat claim to court during this period. Instead, some took advantage of death's omnipresence to acquire property, and particularly slaves, outside of the formal legal system (although these colonists still operated within the shadow of the law). Either unable to afford the cost of an escheat prosecution or unwilling to endure the hassle of protracted litigation, these Jamaicans became squatters, taking the slaves of deceased colonists and hoping that Assembly statutes such as the Quieting Possession Act would secure them in their property. As a practical matter, the mobility of slave property made concealing theft much simpler; colonists could surreptitiously put the additional slaves to work and wait until the statutorily prescribed period expired, at which point possession automatically would be converted to title.

Governor Hamilton explained that this was a regular occurrence. Indeed, “Concerning the Escheats of Negroes there is no case more Common than that an Executor or Guardian upon the death of his ward without heirs continues the possession of his negroes as his own goods without any other pretence of Title.”Footnote ⁸² From Hamilton's perspective, this was precisely what had transpired in James Whitchurch's case. Whitchurch, according to the governor, in fact had never had legal title to the slaves that had been escheated in the first place. Rather, he had taken physical possession of the slaves when their rightful owner died, putting them to work while the statute of limitations elapsed.Footnote ⁸³ Far from a rightfully aggrieved subject, then, for Hamilton, Whitchurch and colonists like him were little more than thieves. These men concealed valuable property that belonged to the Crown, and they used Assembly statutes to give their nefarious activities the color of law.Footnote ⁸⁴ Nonetheless, when governors escheated the slaves of colonists such as Whitchurch—whether they did so to supplement their own income or to replenish the island's rapidly depleting treasury—they disrupted a technically illegal but accepted practice that had allowed some colonists to acquire the labor that made their plantations profitable.

Given escheat's importance to plantation formation during this period, attempts to manipulate the escheat process must have been profoundly unsettling to Jamaicans. These colonists shrewdly realized that governors' meddling in escheats meant that they no longer would benefit exclusively from a process that had helped them to amass the large estates that enabled them to participate in the Atlantic economy. Nor, significantly, would they be able to conceal the valuable property—and particularly slaves—that they had acquired through squatting. Seen in this context, Jamaicans' claims to English rights during the escheat controversy were not the yelps of a liberal or republican vanguard, but rather the howls of a coalescing large planter class who found their ability to control their most significant assets disputed. Rights talk in early eighteenth-century Jamaica was ad hoc, practical, and—crucially—deployed strategically by colonists who had become accustomed to using (or eluding) law to accomplish their economic objectives. Challenged by cash-strapped royal governors, Jamaican colonists deployed a discourse of rights that was familiar throughout the British Atlantic world. They did so in order to urge imperial authorities to return their property, to prevent governors from interfering in the escheat process, and to support their attempts to control property law in the island. Despite earlier victories, however, during the escheat controversy Jamaicans' claims ultimately proved unsuccessful. They foundered upon the shoals of governors seeking to protect both perquisites and prerogative, and, more seriously, a Board of Trade interested in promoting its own vision for empire.

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As the escheat controversy played out in the Jamaican Assembly, participants presented their arguments regarding escheats and escheat-related legislation before the Board of Trade in London. There, the governor and Council—sometimes appearing in person through agents, other times through a voluminous correspondence—were successful in characterizing themselves as protectors of the Crown's revenue and willing executors of the Board of Trade's plans to encourage West Indian trade and settlement. They likewise succeeded in depicting the Assembly as a petty colonial legislature with extraconstitutional designs. Whereas Jamaicans such as Whitchurch had once won support from the Board and the Crown, effective advocacy on the part of the governor and his adherents ultimately resulted in the defeat or modification of escheat-related legislation, the promulgation of a new escheat policy that benefited the governor, and bold statements by the Board denying the Assembly's constitutional claims.

With regard to the Multiple Offices Act, the Crown, acting on the Board's advice, refused its assent. Significantly, it appears that the Board accepted Governor Hamilton and ex-Governor Handasyd's characterization of the bill as particularly aimed at Rigby.Footnote ⁸⁵ In a letter to the Board, for example, Governor Hamilton had characterized the act as a piece of legislative spite specifically targeting Rigby, observing that “if this Act don't get Mr. Rigby out of that Office it won't content those Gentlemen…And this for no other reason that I can tell, but because Mr. Rigby is usefull to ye Government.”Footnote ⁸⁶ They likewise seemed convinced by Hamilton's attempts to paint Assembly members—especially Thomas Beckford—as little more than troublemakers.Footnote ⁸⁷

The Quieting Possessions Act finally received the royal assent in 1715, but not before it had been reworked several times at the Board's direction. The attorney general was especially worried that the act as passed “put the Queen and her Subjects on a Levell as to the time of their claiming their Rights.”Footnote ⁸⁸ Moreover, in suggesting ways in which the act might be rewritten, he cautioned against appeasing the troublesome Assembly, noting that “very great inconveniencies may ensue, if it be drawn into President to doe unreasonable things for the Satisfaction of Persons, who contrary to their Duty to the Crown would endeavour to put Difficulties upon the Government if their unreasonable Demands be not granted.”Footnote ⁸⁹

Significantly, royal policy with regard to escheats was also relaxed at Hamilton's suggestion. To a list of escheats sent to the Board, Hamilton had appended a “State of the Case,” in which he contended that the statutorily prescribed escheat process in Jamaica favored property owners at the Crown's expense. Positioning himself as seeking to promote “the settlement of the Island,” he observed that the current escheat process created a significant delay “before the Title can be made good during which time no body will venture to settle Lands.” This, in turn, “has already very much discouraged the prosecution of the Queen's title by escheat.”Footnote ⁹⁰ Hamilton combined his economic argument with complaints about the Assembly's precocious behavior, “particularly in their claiming the sole right of passing mony-bills.”Footnote ⁹¹ Perhaps most importantly, he suggested that colonists complained about escheats because they had been caught violating the law. These colonists had taken possession of slaves to which they had no titles with the express purpose of defrauding the Crown. Although Jamaicans in the Assembly characterized escheat-related legislation as an attempt to curtail abuse and corruption, Hamilton insisted that their objectives were more sinister. “It is unquestionably true,” he wrote, “that concealment of the Queens right” was a motivating factor in the passage of laws such as the Quieting Possession Act, as greedy colonists such as Whitchurch sought to profit at the Crown's expense.Footnote ⁹² Taken together, these arguments convinced the Board to alter Hamilton's instructions, making it easier for him to sell escheated property.

Most importantly, however, the Board decidedly disagreed with the Assembly's view of its constitutional role. Specifically, the Board rejected the “assembly's pretence that the council have no right to amend money bills,” noting that such a claim was “groundless, and will not be allowed here.” Contrary to the Assembly’ claims, they were only empowered “by virtue of a clause in her majesty's commission to your lordship, without which they could not be elected and sit as an assembly.” Consequently, “their affirming a pretended right, no ways inherent in them, is a violation of the constitution of Jamaica, and is derogatory to her majesty's royal prerogative.” The Board then instructed Hamilton to advise the Assembly that they should “not assume to themselves the rights and privileges of the house of commons of Great-Britain.” If the Assembly refused to conform itself to these directions, the Board ended ominously, “such measures will be taken here as may be effectual to assert her majesty's undoubted prerogative in that island.”Footnote ⁹³

From the perspective of the Board of Trade, then, the Assembly's attempt to reposition itself within an imperial institutional hierarchy was unacceptable. Unlike Whitchurch and other petitioners, who advanced their claims in a way that appealed to broader imperial policy goals, the Assembly now appeared to be acting in a way that deviated from the Board's constitutional vision of empire. As the Board's response to the escheat controversy reveals, this vision was of a chain of decision-making institutions, empowered to act by commissions, and ultimately accountable to the Crown (via the Board). Significantly, the Board did not accept the Assembly's suggestion that Jamaica's constitution was the English constitution. They denied any institutional analogies, especially some Assembly members' claims of equivalence to Parliament. In Jamaica, unlike in Britain, the Assembly was to sit at the bottom of a hierarchy of decision makers. There, governors would continue to adjudicate disputes over property law, safeguarding the Crown's prerogative rights against the overly ambitious claims of Jamaicans sitting in the Assembly.Footnote ⁹⁴

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At the root of this trans-Atlantic controversy were seemingly quotidian issues of property law: who would have the power to make it, and who would have the power to administer it. Tracing the escheat controversy illustrates that property law, far from being a “private” concern, was at the heart of colonial constitutional conflicts. This was particularly true in Jamaica, a colony that was becoming increasingly important geopolitically, and in which colonists had grown accustomed to generating and administering property law through the Jamaican Assembly. Concerned about maintaining control over their island's development in the context of white demographic instability and a growing reliance on slave labor, colonists saw escheat as a way to amass the land and slaves that would allow them to compete in a wider Atlantic economy. Given escheat's importance to plantation formation in the early eighteenth century as well as its potential, when wielded by governors, to prevent colonists' attempts to acquire slaves through less formal legal means, it should not be surprising that the taking of James Whitchurch's slaves provoked a substantial controversy. Nor should it be surprising that when the Whitchurch escheat is placed in its early eighteenth-century context, the case's underlying facts become much more complicated—and infinitely more interesting—than a cursory reading would suggest. The historical record cannot tell us whether Whitchurch was an opportunistic squatter bent on concealing the Queen's prerogative rights, as Governors Handasyd and Hamilton suggested, or whether the colonist was instead the victim of rampant government corruption, as he claimed. That these two readings are available to historians, however, brings home the realities of life in early eighteenth century Jamaica, a frighteningly transitory world in which the lines between public and private, law and not-law, life and death, were blurred as stakeholders struggled to control the island's social and economic development.

Similar disputes over property likely are buried beneath rights talk throughout colonial British America, waiting to be unearthed. These conflicts are easy to overlook when we become mesmerized by what glitters on the surface, missing the practical and the tangible because we are more interested in the ideological and the theoretical. Early eighteenth-century Jamaicans, like most American colonists, were not on the whole grand theorizers. They were attempting to navigate a particular set of legal and institutional arrangements that sometimes seemed to work for them, but other times did not. To view rights talk as reflecting a coherent ideology is to miss its improvisational and instrumental character. To see rights talk as an outgrowth of something much more visceral—disputes about property law—is to attend to Lauren Benton's injunction against “concluding that legal contests that were politically marginal in one place or time were marginal everywhere.”Footnote ⁹⁵