CH. XIV.] NORTH AND SOUTH CAROLINA. 117
NORTH AND SOUTH CAROLINA.
§ 128. WE next come to the consideration of the history of the
organization of the Carolinas. That level region, which stretches from the
36th degree of north latitude to Cape Florida, afforded an ample theater
for the early struggles of the three great European powers, Spain, France,
and England, to maintain or acquire an exclusive sovereignty. Various
settlements were made under the auspices of each of the rival powers, and a
common fate seemed for a while to attend them all.1 In March, 1662 [April,
1663,] Charles the Second made a grant to Lord Clarendon and others of the
territory lying on the Atlantic ocean, and extending from the north end of
the island, called Hope island, in the South Virginian seas, and within 36
degrees of north latitude; and to the west as far as the South seas; and so
respectively as far as the river Mathias upon the coast of Florida, and
within 31 degrees of north latitude; and so west in a direct line to the
South seas; and erected it into a province, by the name of Carolina, to be
holden as of the manor of East-Greenwich in Kent, in free and common
soccage, and not in capite, or by knight service, subject immediately to
the crown, as a dependency, for ever.2
§129. The grantees were created absolute Lords Proprietaries,
faith, allegiance, and supreme
1 1 Chalmers's Annals, 313, 514, 515.
118 HISTORY OF THE COLONIES. [BOOK I.
2 1 Chalm. Annals, 519; 1 Holmes's Annals, 327, 328; Marsh. Colon. ch.
5, p. 152; 1 Williamson's North Carol. 87, 230; Carolina Charters,
dominion of the crown; and invested with as ample rights and jurisdictions,
as the Bishop of Durham possessed in his palatine diocese. The charter
seems to have been copied from that of Maryland, and resembles it in many
of its provisions. It authorized the proprietaries to enact laws with the
assent of the freemen of the colony, or their delegates; to erect courts of
judicature; to appoint civil officers; to grant titles of honour; to erect
forts; to make war, and in cases of necessity to exercise martial law; to
build harbours; to make ports; to erect manors; and to enjoy customs and
subsidies imposed with the consent of the freemen.1 And it further
authorized the proprietaries to grant indulgences and dispensations in
religious affairs, so that persons might not be molested for differences in
speculative opinion with respect to religion, avowedly for the purpose of
tolerating non-conformity to the Church of England.2 It further required,
that all laws should "be consonant to reason, and as near as may be
conveniently, agreeable to the laws and customs of this our kingdom of
England."3 And it declared, that the inhabitants and their children, born
in the province, should be denizens of England, and entitled to all the
privileges and immunities of British born subjects.
§ 130. The proprietaries immediately took measures for the
the province; and at the desire of the New-England settlers within it,
(whose disposition to emigration is with Chalmers a constant theme of
reproach,) published proposals, forming a basis of gov-
1 1 Holmes's Annals,327,328.--This charter, and the second charter, and
the fundamental constitutions made by the Proprietaries is to be
found in a
small quarto printed in London without date, which is in Harvard College
CH. XIV.] NORTH AND SOUTH CAROLINA. 119
2 1 Holmes's Annals, 328; 1 Hewatt's South Car. 42 to 47.
3 Carolina Charter, 4to. London.
ernment.1 It was declared, that there should be a governor chosen by the
proprietaries from thirteen persons named by the colonists; and a general
assembly, composed of the governor, council, and representatives of the
people, who should have authority to make laws not contrary to those of
England, which should remain in force until disapproved of by the
proprietaries.2 Perfect freedom of religion was also promised; and a
hundred acres of land offered, at a half penny an acre, to every settler
within five years.
§ 131. In 1665, the proprietaries obtained from Charles the
second charter, with an enlargement of boundaries. It recited the grant of
the former charter, and declared the limits to extend north and eastward as
far as the north end of Currituck river or inlet, upon a straight westerly
line to Wyonoak creek, which lies within or about 36 degrees 30 minutes of
north latitude; and so west in a direct line as far as the South seas; and
south and westward as far as the degrees of 29 inclusive of northern
latitude, and so west in a direct line as far as the South seas.3 It then
proceeded to constitute the proprietaries absolute owners and lords of the
province, saving the faith, allegiance, and sovereign dominion of the
crown, to hold the same as of the manor of East-Greenwich in Kent, in free a
nd common soccage, and not in capite, or by knight service; and to possess
in the same all the royalties, jurisdictions, and privileges of the Bishop
of Durham in his diocese. It also gave them power to make laws, with the
assent of the freemen of the province, or their delegates, pro-
1 1 Chalm. Annals, 515.
120 HISTORY OF THE COLONIES. [BOOK I.
2 1 Chalm. Annals, 518, 553; Marsh. Colon. ch. 5, p. 152.
3 1 Chalm. Annals, 521; 1 Williams's N. Car. 230, 231; 1 Holmes's
Annals, 340; Carolina Charters, 4to. London.
vided such laws were consonant with reason, and, as near as conveniently,
may be agreeable to the laws and customs of the realm of England.1 It also
provided, that the inhabitants and their children should be denizens and
lieges of the kingdom of England, and reputed and held as the liege people
born within the kingdom; and might inherit and purchase lands, and sell and
bequeath the same; and should possess all the privileges and immunities of
natural born subjects within the realm. Many other provisions were added,
in substance like those in the former charter.2 Several detached
settlements were made in Carolina, which were at first placed under
distinct temporary governments; one was in Albemarle; another to the south
of Cape Fear.3 Thus various independent and separate colonies were
established, each of which had its own assembly, its own customs, and its
own laws; a policy, which the proprietaries had afterwards occasion to
regret, from its tendency to enfeeble and distract the province.4
§ 132. In the year 1669, the proprietaries, dissatisfied with
already established within the province, signed a fundamental constitution
for the government thereof, the object of which is declared to be, " that
we may establish a government agreeable to the monarchy, of which Carolina
is a part, that we may avoid making too numerous a democracy."5 This
constitution was drawn up by the celebrated John Locke;
1 1 Williams's N. Car. 230, 237.
CH. XIV.] NORTH AND SOUTH CAROLINA. 121
2 1 Holmes's Annals, 340; 1 Chalm. Annals,521,522;1 Williams's N. Car.
230 to 254; Iredell's Laws of N. Car. Charter, p. l to 7.
3 1 Chalm. Annals,519,520,524,525; 1 Williams's N. Car. 88,91,92, 93,
96, 97, 103, 114.
4 1 Chalm. Annals, 521.
5 1 Chalm. Annals, 526,527; 1 Holmes's Annals, 350, 351, and note;
Carolina Charters, 4to. London, p. 33.
and his memory has been often reproached with the illiberal character of
some of the articles, the oppressive servitude of others, and the general
disregard of some of those maxims of religious and political liberty, for
which he has in his treatises of government and other writings contended
with so much ability and success. Probably there were many circumstances
attending this transaction, which are now unknown, and which might well
have moderated the severity of the reproach, and furnished, if not a
justification, at least some apology for this extraordinary instance of
unwise and visionary legislation.
§ 133. It provided, that the oldest proprietary should be the
and the next oldest should succeed him. Each of the proprietaries was to
hold a high office. The rules of precedency were most exactly established.
Two orders of hereditary nobility were instituted, with suitable estates,
which were to descend with the dignity. The provincial legislature,
dignified with the name of Parliament, was to be biennial, and to consist
of the proprietaries or their deputies, of the nobility, and of
representatives of the freeholders chosen in districts. They were all to
meet in one apartment, (like the ancient Scottish parliament,) and enjoy an
equal vote. No business, however, was to be proposed, until it had been
debated in the grand council, (which was to consist of the proprietaries
and forty-two counsellors,) whose duty it was to prepare bills. No act was
of force longer than until the next biennial meeting of the parliament,
unless ratified by the palatine and a quorum of the proprietaries. All the
laws were to become void at the end of a century, without any formal
repeal. The Church of England (which was declared to be the only true and
orthodox religion) was alone to be allow-
122 HISTORY OF THE COLONIES. [BOOK I.
ed a public maintenance by parliament. But every congregation might tax
its own members for the support of its own minister. Every man of
seventeen years of age was to declare himself of some church or religious
profession, and to be recorded as such; otherwise he was not to have any
benefit of the laws. And no man was to be permitted to be ? freeman of
Carolina, or have any estate or habitation, who did not acknowledge a God,
and that God is to be publicly worshipped. In other respects there was a
guaranty of religious freedom.1 There was to be a public registry of all
deeds and conveyances of lands, and of marriages and births. Every freeman
was to have "absolute power and authority over his negro slaves, of what
opinion or religion soever." No civil or criminal cause was to be tried but
by a jury of the peers of the party; but the verdict of a majority was
binding. With a view to prevent unnecessary litigation, it was (with a
simplicity, which at this time may excite a smile) provided, that "it shall
be a base and vile thing to plead for money or reward; "and that since
multiplicity of comments, as well as of laws, have great inconveniences,
and serve only to obscure and perplex, all manner of comments and
expositions on any part of these fundamental constitutions, or on any part
of the common, or statute law of Carolina, are absolutely prohibited."2
§ 134. Such was the substance of this celebrated
constitution. It is
easy to perceive, that it was ill adapted to the feelings, the wants, and
the opinions of the colo-
1 1 Hewatt's South Car. 42 to 47, 321, &c.; Carolina Charters, 4to.
London, p. 33, &c.; 1 Chalm. Annals, 526; 1 Holmes's Annals, 350,
Williams's N. Car. 104 to 111; Marsh. Colon. ch. 5, p. 154, 156; 1
Ramsay's South Car. 31, 32.
CH. XIV.] NORTH AND SOUTH CAROLINA. 123
2 Carolina Chartera, 4to. p. 45, § 70, p. 47,§ 80; 1 Hewatt's South
Car. 321, &c.
nists. The introduction of it, therefore, was resisted by the people, as
much as it could be; and indeed, in some respects, it was found
impracticable.1 Public dissatisfaction daily increased; and after a few
years' experience of its ill arrangements, and its mischievous tendency,
the proprietaries, upon the application of the people, (in 1693,) abrogated
the constitution, and restored the ancient form of government. Thus
perished the labours of Mr. Locke; and thus perished a system, under the
administration of which, it has been remarked, the Carolinians had not
known one day of real enjoyment, and that introduced evils and disorders,
which ended only with the dissolution of the proprietary government.2
Perhaps in the annals of the world there is not to be found a more
wholesome lesson of the utter folly of all efforts to establish forms of
governments upon mere theory; and of the dangers of legislation without
consulting the habits, manners, feelings, and opinions of the people, upon
which they are to operate.
§ 135. After James the Second came to the throne, the same
was adopted of filing a quo warranto against the proprietaries, as had been
successful in respect to other colonies. The proprietaries, with a view to
elude the storm, prudently offered to surrender their charter, and thereby
gained time.3 Before any thing definitive took place, the revolution of
1688 occurred, which put an end to the hostile proceedings. In April,
1698, the proprietaries made another system of fundamental constitutions,
which embraced many of
1 1 Ramsay's South Car. 39,43,88; 1 Hewatt's South Car. 45; 1 Chalmers's
Annals, 527, 528, 529, 530, 532, 550; Marsh. Colon. ch. 5, 156, 157,
159; 1 Williams's N. Car. 122,143.
124 HISTORY OF THE COLONIES. [BOOK I.
2 1 Chalmers's Annals, 552.
3 1 Chalmers's Annals, 549; 1 Holmes's Annals, 416.
those propounded in the first, and, indeed, was manifestly a mere amendment
§ 136. These constitutions (for experience does not seem to
more wisdom to the proprietaries on this subject) contained the most
objectionable features of the system of government, and hereditary nobility
of the former constitutions, and shared a common fate. They were never
generally assented to by the people of the colony, or by their
representatives, as a body of fundamental laws. Hewatt says,1 that none
of these systems ever obtained "the force of fundamental and unalterable
laws in the colony.' What regulations the people found applicable, they
adopted at the request of their governors; but observed these on account of
their own propriety and necessity, rather than as a system of laws imposed
on them by British legislators." 2
§ 137. There was at this period a space of three hundred
the Southern and Northern settlements of Carolina;3 and though the whole
province was owned by the same proprietaries, the legislation of the two
great settlements had been hitherto conducted by separate and distinct
assemblies, sometimes under the same governor, and sometimes under
different governors. The legislatures continued to remain distinct down to
the period, when a final surrender of the proprietary charter was made to
the crown in 1729.4 The respective territories were de-
1 Hewatt's South Carol. 45.
CH. XIV.] NORTH AND SOUTH CAROLINA. 125
2 Dr. Ramsay treats these successive constitutions as of no authority
whatsoever in the province, as a law or rule of government. But in a
point of view the proposition is open to much doubt. 2 Ramsay's South
Carol. 121 to 124.
3 1 Williams's N. Car. 155.
4 Marsh. Colon. ch. 9, p. 246, 247; 1 Hewatt's South Carol. 212, 318.
signated by the name of North Carolina and South Carolina, and the laws of
each obtained a like appellation. Cape Fear seems to have been commonly
deemed, in the commissions of the governor, the boundary between the two
§ 138. By the surrender of the charter, the whole government of the
territory was vested in the crown; (it had been in fact exercised by the
crown ever since the overthrow of the proprietary government in 1720;) and
henceforward it became a royal province; and was governed by commission
under a form of government substantially like that established in the other
royal provinces.2 This change of government was very acceptable to the
people, and gave a new impulse to their industry and enterprise. At a
little later period , for the convenience of the inhabitants, the
province was divided; and the divisions were distinguished by the names of
North Carolina and South Carolina.3
§ 139. The form of government conferred on Carolina, when it
royal province, was in substance this. It consisted of a governor and
council appointed by the crown, and an assembly chosen by the people, and
these three branches constituted the legislature. The governor convened,
prorogued, and dissolved the legislature, and had a negative upon the laws,
and exercised the executive authority.4 He possessed also the powers of
the court of chancery, of the
1 1 Williams's N. Car. 161, 162; 1 Ramsay's South Carol. 56, &c. 88,
95; 1 Hewatt's South Carol. 212, 318; I Holmes's Annals, 523, 525; Marsh.
Colon. ch. 9, p. 246.
126 HISTORY OF THE COLONIES. [BOOK I.
2 Marsh. Colon. ch. 9, p. 247.
3 Marsh. Colon. ch. 9, p. 247; 1 Holmes's Annals, 544.
4 2 Hewatt's South Car. ch. 7, p. 1 et seq.; 1 Ramsay's South. Car.
ch. 4, p. 95.
admiralty, of supreme ordinary, and of appointing magistrates and militia
officers. All laws were subject to the royal approbation or dissent; but
were in the mean time in full force.
§ 140. On examining the statutes of South Carolina, a close
the general policy of the English laws is apparent. As early as theyear
1712, a large body of the English statutes were, by express legislation,
adopted as part of its own code; and all English statutes respecting
allegiance, all the test and supremacy acts, and all acts declaring the
rights and liberties of the subjects, or securing the same, were also
declared to be in force in the province. All and every part of the common
law, not altered by these acts, or inconsistent with the constitutions,
customs, and laws of the province, was also adopted as part of its
jurisprudence. An exception was made of ancient abolished tenures, and of
ecclesiastical matters inconsistent with the then church establishment in
the province. There was also a saving of the liberty of conscience, which
was allowed to be enjoyed by the charter from the crown, and the laws of
the Province.1 This liberty of conscience did not amount to a right to deny
the Trinity.2 The Church of England had been previously established in the
province [in 1704] and all members of the assembly were required to be of
that persuasion.3 Fortunately, Queen Anne annulled these obnoxious laws;
and though the Church of England was established, dissenters obtained a
toleration, and the law respecting the religious qualification of
assembly-men was shortly afterwards repealed.
1 Grimke's South Carolina Laws, (1712,) p. 81, 98, 99, 100.
CH. XIV.] NORTH AND SOUTH CAROLINA. 127
2 Id. Act of 1703. p. 4.
3 1 Holmes's Annals, 489, 490, 491; 1 Hewatt's South Carol. 166 to 177.
§ 141. The law of descents of intestate real estates, of wills,
uses, existing in England, thus seem to have acquired a permanent
foundation in the colony, and remained undisturbed, until after the period
of the American Revolution.1 As in the other colonies, the registration of
conveyances of lands was early provided for, in order to suppress
§ 142. In respect to North Carolina, there was an early
the legislature  conformably to the charter, that the common law was,
and should be in force in the colony. All statute laws for maintaining the
royal prerogative and succession to the crown; and all such laws made for
the establishment of the church, and laws made for the indulgence to
Protestant dissenters; and all laws providing for the privileges of the
people, and security of trade; and all laws for the limitation of actions
and for preventing vexatious suits, and for preventing immorality and
fraud, and confirming inheritances and titles of land, were declared to be
in force in the province.2 The policy thus avowed was not departed from
down to the period of the American Revolution; and the laws of descents and
the registration of conveyances in both the Carolinas was a silent result
of their common origin and government.
1 2 Ramsay's South Car. 130.--The descent of estates was not altered
2 Iredell's North Car. Laws, 1715, p. 18,19.