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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.” 1
$ 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 colonists. 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. 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 labors 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.8 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 government upon merc thcory, 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 general course was adopted of filing a quo warranto against the proprietaries, as had been successful in respect to other colonies.
1 Carolina Charters, 4to, p. 45, $ 70, p. 47, § 80 ; 1 Hewatt's South Car. 321, &c.
2 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, pp. 156, 157, 159 ; 1 Williams's N. Car. 122, 143. oi Chalmers's Annals, 552.
VOL. I. -7
The proprietaries, with a view to elude the storm, prudently offered to surrender their charter, and thereby gained time. 1 Before anything 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 those propounded in the first, and indeed, was manifestly a 'mere amendment of them.
§ 136. These constitutions (for experience does not seem to have imparted more wisdom to the proprietaries on this subject) contained the most objectionable features of the system of govcrnment, and hereditary nobility of the former constitutions, and shared a common fato. They were never generally assented to by the people of the colony, or by their representatives, as a body of fundamental laws. Hewatt says,2 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." 3
$ 137. There was at this period a space of three hundred miles between the southern and northern settlements of Carolina; 4 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 gover
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. The respective territories were designated by the name of North Carolina and South Carolina, and the laws of each obtained a like appellation. Cape Fear scems to have been commonly deemed in the commissions of the governor the boundary between the two colonics.
11 Chalmers's Annals, 549; 1 Holmes's Annals, 416. 2 1 Hewatt's South Carol. 45.
3 Dr. Ramsay treats these successive constitutions as of no authority whatsoever in the Province, as a law or rule of government. But in a legal point of view the proposition is open to much doubt. 2 Ramsay's South Carol. 121 to 124.
41 Williams's N. Car. 155.
61 Williams's N. Car. 161, 162 ; 1 Ramsay's South Carol. 56, &c., 88, 95 ; 1 Hew. att's South Car. 212, 318 ; 1 Holmes's Annals, 523, 525 ; Marsh. Colon. ch. 9, p. 246.
§ 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. This change of government was very acceptable to the people, and gave a new impulse to their industry and enterprise. At a later period (1732), for the convenience of the inhabitants, the Province was divided; and the divisions were distinguished by the names of North Carolina and South Carolina. 2
§ 139. The form of government conferred on Carolina when it became a 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 convencd, prorogned, and dissolved the legislature, and had a negative upon the laws, and exercised the executive authority. He possessed also the powers of the court of chancery, of the 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 adherence to the general policy of the English laws is apparent. As early as the year 1712, a large body of the English statutes was, 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 full 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 ccclesiastical matters inconsistent with the then church cstablishment in the Province. There was also a saving of the liberty of conscience, which was allowed to be enjoyed
1 Marsh. Colon. ch. 9, p. 247. ? Marsh. Colon. ch. 9, p. 237 ; 1 Holmes's Annals, 544. 8 2 Heiratt's South Car. ch. 7, p. 1, et scq. ; 1 Ramsay's South Car. ch. 4, p. 95.
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. 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.8 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 assemblymen was shortly afterwards repealed.
§ 141. The laws of descents of intestate real estates, of wills, and of uses, existing in England, seem to have acquired a permanent foundation in the colony, and remained undisturbed, until after the period of the American Revolution. As in the other colonies, the registration of conveyances of lands was early provided for, in order to suppress fraudulent grants.
$ 142. In respect to North Carolina, there was an early declaration of the legislature (1715) 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. 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 were a silent result of their common origin and government.
i Grimke's South Carolina Laws (1712), pp. 81, 98, 99, 100.
2 Ramsay's South Car. 130. The descent of estates was not altered until 1791. 6 Iredell's North Car. Laws, 1715, pp. 18, 19.
§ 143. In the same year in which Carolina was divided (1732), a project was formed for the settlement of a colony upon the unoccupied territory between the rivers Savannah and Altamaha. 1 The object of the projectors was to strengthen the Province of Carolina, to provide a maintenance for the suffering poor of the mother country, and to open an asylum for the persecuted Protestants in Europe; and in common with all the other colonies to attempt the conversion and civilization of the natives.2 Upon application, George the Second granted a charter to the company (consisting of Lord Percival and twenty others, among whom was the celebrated Oglethorpe), and incorporated them by the name of the Trustees for establishing the Colony of Georgia in America. The charter conferred the usual powers of corporations in England, and authorized the trustees to hold any territories, jurisdictions, etc., in America for the better settling of a colony there. The affairs of the corporation were to be managed by the corporation, and by a common council of fifteen persons, in the first place nominated by the crown, and afterwards, as vacancies occurred, filled by the corporation. The number of common-councilmen might, with the increase of the corporation, be increased to twenty-four. The charter further granted to the corporation seven undivided parts of all the territories lying in that part of South Carolina which lies from the northern stream of a river, there called the Savannah, all along the sea-coast to the southward unto the southernmost stream of a certain other great river, called the Altamaha, and westward from the heads of the said rivers respectively in direct lines to the South Seas, to be held as of the manor of Hampton Court, in Middlesex, in
1 i Holmes's Annals, 552 ; Marsh. Colonies, ch. 9, p. 247 : 2 Hewatt's South Car. 15, 16 ; Stokes's Hist. Colonies, 113.
2 1 Holines's Annals, 552; 2 Hewatt's South Car. 15, 16, 17. 8 Charters of N. A. Provinces, 4to, London, 1766.