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Parliament, 2 Geo.2 ch. 34, hereinafter inserted. Lord Carteret, (after- ExT'S FROM
THE JOURNAL. wards Lord Granville) the eighth Proprietor, resigned on the 17th September, 1744, all pretensions to the Government, and his eighth part of the right to the soil was located by Commissioners, appointed by him and the King, next adjoining Virginia, “ Bounded North by the Virginia line, East by the Atlantic, South by latitude 35 degrees 34 minutes North, and West as far as the bounds of the Charter.”
The Government of Carolina, from the surrender in 1729, became regal; and the Province was divided into North and South Carolina, by an order of the British Council, which fixed the boundaries between the two Provinces.
The alterations of the Southern Boundaries of South-Carolina, resulting from the establishment of Georgia, and other acts, are noticed in the collection of documents relating to Boundary.
Of the Five FUNDAMENTAL CONSTITUTIONS, mentioned by Mr. Trott, the first was drawn up at the request of Lord Ashley, one of the original proprietors, (better known as Anthony Ashley Cooper, Earl of Shaftesbury) by John Locke, dated 1st of March, 1669, six years after the granting of the first charter. Concerning these Fundamental Constitutions, I find in the MS. Journals of the House of Assembly of the Province of Carolina, the following particulars, viz.:
Extract from the Journals of the House of Assembly, in MS. Legis. Libr., from
1702 to 1706; August 30th, 1702.
Mr. Trott and Mr. Higginton, the committee to supervise the Constitutions, &c. report as followeth :
“ We find that our late sovereign Lord, King Charles the Second, in his “ royall charter, bearing date the 30th day of June, in the 17th year of his “ reign, did give and grant unto the honourable the Lords Proprietors of “ the Province of Carolina, ample rights, jurisdictions, priviledges, prerog“ atives, royalties, liberties, immunities and franchises, for the good and “happy government of the said Province, and the people therein habitting
or to inhabitt; and of his especiall grace towards the said people, in the “ said charter hath made provision that the said Lords Proprietors have full “ power and authoritye to make and enact, and under their hands and seals “ to publish any law and constitutions whatsoever, either appertaining to “ the publick state of the said whole Province, or to the private utility of “ particular persons, according to their best discretions, by and with the “ assent and advice and approbation of the freemen of the said Province; “ That the said originall charter is the only true basis, from, by and accord“ing to which, other laws, methods, and rules of government, which any“ wayes concerne the peoples lives, and their liberties, freeholds, goods and “ chattels of the inhabittants of this Province, ought or legally can be taken, “ derived and enacted. That the said charter particularly and expressly “ provides for our civill liberties, but freedom in matters of religion and “ conscience, is thereby given to us, by and under the Lords Proprietors's “ consent.
“ That the constitutions of which we are to consider, make and set up “ an estate different and distinguished from the Lords Proprietors, and the “ Common's house, without whose consent noe law shall or may be enacted, “ which is called in the said constitutions, the upper house, consisting of
ExT'S FROM “ the Landgraves and Casiques, who being created by their Lordships
L.“ second letters patents, are also a middle state between the Lords and
“ Commons; which constitution we cannot find that it anywayes contradicts “ the said Charter.
“ We find that the 22d article in the Constitutions, manifestly interferes “ with our Jury acts, now in force ; That all other articles in the constilu“ tions, are as neare and agreable as may be, to the said charter, or at least “ no wayes repugnant to it."
August 31st, 1702.— The House entered into the debate of the said report, and ordered the charter to be read, which was read accordingly. The House ordered the last constitutions sent here by the Proprietors, to be read, which were read accordingly.
“ The question is put, whether the House is of opinion that the Consti“ tutions now before us are valid, being enacted by us, since severall of the “ proprietors are dead, that signed the same. Carried in the affirmative.
“ Ordered, that the said Constitutions be read again, and debated para“ graph by paragraph, to-morrow morning.”.
“ September 1st, 1702.-According to the order of the day, the Consti“tutions were read, and the house entered into the debate, paragraph by “ paragraph. The question is, whether the said Constitutions be ordered “ a second reading. Carried in the negative."
I find no other notice of these Constitutions in the Journals. Hence it appears that the representatives of the people of Carolina, at that period, withheld from these documents the sanction of their confirmation, and refused to acknowledge their binding authority. These Constitutions were in force, and binding at least on the Proprietors who enacted them, until the Assembly so acted upon them in September, 1702; but to what extent they were previously in force, I cannot discover with accuracy. Under these Constitutions, the Proprietors appear to have claimed the right of repealing laws, passed by the House of Assembly. The contest on this point, is noticed by Dr. Ramsay in his history of South Carolina, (vol. 1st, page 72-76) in connection with the victory of the House of Assembly over Gov. Johnson and the Proprietary Government in 1719, when that form of government was superceded by surrender to the Crown.
These fundamental constitutions, so rejected by the House of Assembly, constitute, therefore, no part of the laws of South Carolina ; but as the constitution of John Locke introduces unusual titles of honour, with appellations adopted in many of the early laws of the Province, and as Landgraves and Casiques, with large donations of land, were created under its authority, I deem it proper to give a place to this document here, more especially as the high reputation of the author renders it a document of legislation of much curiosity.
The term “PALATINE,” Comes Palatii, Count of the palace, is a title formerly given to some great dignitary of the royal household. It then became the title of a governor of some local district, with the authority and privileges of vice-royalty ; in England, the county of Durham is a county Palatine.
“LANDGRAVE,” is a German title of nobility, connected with a landed estate of a certain extent ; like the “Thane” of Saxon times.
“Casique,” or “Cazique," a title of dominion among the Mexican In- Locke's
* CONSTITUTION dians.
Thomas Smith, Governor of Carolina, was, by authority of the Propriewrs who issued their patent to this effect, May 13th, 1694, created Landgrave, together with “ four baronies, of 12,000 acres of land each ; which title and baronies should forever descend to his heirs, on paying the annual rent of a penny, lawful money of England, for each acre.”—Ramsay's History of South Carolina, vol. 1, page 45, note.
James Colleton, Governor, is also designated as Landgrave Colleton, in Ramsay's History of South Carolina, page 40, volume 1st. T.C.
THE FUNDAMENTAL CONSTITUTIONS OF CAROLINA,
DRAWN UP BY John LockE; (March 1st, 1669.)
Our sovereign Lord the King, having out of his royal grace and bounty, granted unto us the Province of Carolina, with all the royalties, properties, jurisdictions and priviledges of a County Palatine, as large and ample as the County Palatine of Durham, with other great Priviledges; for the better settlement of the government of the said place, and establishing the interest of the Lords Proprietors with equality, and without confusion ; and that the government of this Province may be made most agreeable to the Monarchy under which we live, and of which this Province is a part ; and that we may avoid erecting a numerous democracy: We, the Lords and proprietors of the Province aforesaid, have agreed to this following form of government, to be perpetually established amongst us, unto which we do oblige ourselves, our heirs and successors, in the most binding ways that can be devised.
1st. The eldest of the Lords Proprietors shall be Palatine; and upon the decease of the Palatine the eldest of the seven surviving proprietors shall always succeed him..
2d. There shall be seven other chief offices erected, viz., the Admirals, Chamberlains, Chancellors, Constables, Chief Justices, High Stewards and Treasurers; which places shall be enjoyed by none but the Lords Proprietors, to be assigned at first by lot; and upon the vacancy of any one of the seven great offices, by death or otherwise, the eldest Proprietor shall have his choice of the said place.
3d. The whole Province shall be divided into Counties ; each county shall consist of eight signories, eight baronies and four precincts ; each precinct shall consist of six colonies.
4th. Each signory, barony, and colony, shall consist of twelve thousand acrés ; the eight signories being the share of the eight proprietors, and the eight baronies of the nobility ; both which shares, being each of them one fifth of the whole, are to be perpetually annexed, the one to the proprietors and the other to the hereditary nobility; leaving the colonies, being threefifths, amongst the people; so that in setting out and planting the lands, the balance of the government may be preserved.
5th. At any time before the year one thousand, seven hundred and one, any of the lords proprietors shall have power to relinquish, alienate and dispose to any other person, his proprietorship, and all the signories, powers,
and interest, thereunto belonging, wholly and intirely together, and not otherwise. But after the year one thousand, seven hundred, those who are then Lords Proprietors, shall not have power to alienate, or make over their proprietorship, with the signories and priviledges thereunto belonging, or any part thereof to any person whatsoever, otherwise than in section 18th, but it shall all descend unto their heirs male ; and for want of heirs male, it shall all descend on that Landgrave, or Casique of Carolina, who is descended of the next heirs female of the proprietor ; and for want of such heirs, it shall descend on the next heir general; and for want of such heirs, the remaining seven proprietors shall upon the vacancy, choose a Landgrave to succeed the deceased proprietor, who being chosen by the majority of the seven surviving proprietors, he and his heirs, successively, shall be proprietors, as fully, to all intents and purposes, as any of the rest.
6th. That the number of eight proprietors may be constantly kept ; if upon the vacancy of any proprietorship, the seven surviving proprietors shall not choose a Landgrave to be a proprietor, before the second biennial parliament after the vacancy, then the next biennial parliament but one, after such vacancy, shall have power to choose any Landgrave to be a proprietor.
7th. Whosoever after the year one thousand seven hundred, either by inheritance or choice, shall succeed any proprietor in his proprietorship and signories thereunto belonging, shall be obliged to take the name and arms of that proprietor whom he succeeds, which from thenceforth shall be the name and arms of his family and their posterity.
Sth. Whatsoever Landgrave or Casique shall any way come to be a proprietor, shall take the signories annexed to the said proprietorship ; but his former dignity, with the baronies annexed, shall devolve into the hands of the Lords Proprietors.
9th. There shall be just as many Landgraves as there are counties, and twice as many Casiques, and no more. These shall be the hereditary nobility of the Province, and by right of their dignity be members of parliament. Each Landgrave shall have four baronies, and each Casique two baronies, hereditarily and unalterably annexed to and settled upon the said dignity.
10th. The first Landgraves and Casiques, of the twelve first counties to be planted, shall be nominated thus, that is to say, of the twelve Landgraves, the Lords Proprietors shall each of them separately for himself, nominate and choose one ; and the remaining four Landgraves of the first twelve shall be nominated and chosen by the palatine's court. In like manner of the twenty-four first Casiques, each proprietor for himself shall nominate and choose two, and the remaining eight shall be nominated and chosen by the palatine's court; and when the twelve first counties shall be planted, the Lords Proprietors shall again, in the same manner, nominate and choose twelve more Landgraves, and twenty four more Casiques, for the next twelve counties to be planted ; that is to say, two-thirds of each number, by the single nomination of each proprietor for himself, and the remaining third by the joint election of the palatine's court; and so proceed in the same manner, till the whole province of Carolina be set out and planted, according to the proportions in these fundamental constitutions.
11th. Any Landgrave or Casique, at any time before the year one thousand seven hundred and one, shall have power to alienate, sell, or make over to any other person, his dignity, with the baronies thereunto belonging, all intirely together; but after the year one thousand, seven hundred, no Landgrave or Casique shall have power to alienate, sell, make over, or let the hereditary baronies of his dignity, or any part thereof, otherwise than as in section 18th ; but they shall all intirely, with the dignity thereunto belonging, descend unto his heirs male ; and for want of heirs male, all intirely and . LOCKE's
ONSTITUTION undivided, to the next heir general; and for want of such heirs shall devolve into the hands of the Lords proprietors.
12th. That the due number of Landgraves and Casiques, may be always kept up; if upon the devolution of any landgraveship, or Casiqueship, the palatine's court shall not settle the devolved dignity, with the baronies thereunto annexed, before the second biennial parliament after such devolution, the next biennial parliament but one, after such devolution, shall have power to make any one landgrave or casique, in the room of him who dying without heirs, his dignity and baronies devolved.
13th. No one person shall have more than one dignity, with the signiories or baronies thereunto belonging. But when soever it shall happen, that any one who is already Proprietor, Landgrave, or Casique, shall have any of these dignities descend to him by inheritance, it shall be at his choice to keep which of the dignities, with the lands annexed, he shall like best; but shall leave the other, with the lands annexed, to be enjoyed by him who not being his heir apparent, and certain successor, to his present dignity, is next of blood.
14th. Whosoever by right of inheritance, shall come to be Landgrave or Casique, shall take the name and arms of his predecessor in that dignity, to be from thenceforth the name and arms of his family and their posterity.
15th. Since the dignity of Proprietor, Landgrave or Casique, cannot be divided, and the signiories or baronies, thereunto annexed, must forever all intirely descend with and accompany that dignity; whensoever for want of heirs male, it shall descend on the issue female, the eldest daughter and her heirs shall be prefered, and in the inheritance of those dignities, and in the siguiories or baronies annexed, there shall be no co-heirs.
16th. In every signiory, barony, and manor, the respective Lord shall have power in his own name to hold court leet there, for trying of all causes, both civil and criminal; but where it shall concern any person being no inhabitant, vassal, or leet man, of the said signiory, barony or manor, he upon paying down of forty shillings, for the Lords proprietors use, shall have an appeal from the signiory, or barony court, to the county court, and from the manor court, to the precinct court.
17th. Every manor shall consist of not less than three thousand acres, and not above twelve thousand acres, in one intire piece and colony; but any three thousand acres or more, in one piece, and the possession of one man, shall not be a manor, unless it be constituted a manor, by the grant of the palatine's court.
18th. The Lords of signiories and baronies, shall have power only of granting estates not exceeding three lives, or twenty one years, in two thirds of the said signiories, or baronies, and the remaining third shall be always demesne.
19th. Any Lord of a manor, may alienate, sell, or dispose to any other person and his heirs for ever, his manor all intirely together, with all the priviledges and leet men, thereunto belonging, so far forth as any colony lands; but no grant of any part thereof, either in fee or for any longer term than three lives, or one and twenty years, shall be good against the next heir.
20th. No manor for want of issue male, shall be divided amongst co-heirs; but the manor, if there be but one, shall all intirely descend to the eldest daughter and her heirs. If there be more manors than one, the eldest daughter first shall have her choice, the second next, and so on, beginning again at the eldest until all the manors be taken up; that so the priviledges which belong to manors, being indivisible, the lands of the