These I call Proviso's of Necessity, because nothing can depute more Power, than it possesses. I. The King could not part with the Allegiance and Dominion due to the English Crown, without consent of Parliament. For, 1. That had been, to have alienated Part of the English Government from the Crown. 2. It had been, to consign some of his Subjects over to the Government of another Prince without their Consent. II. The King could not grant the Right, Title and Interest of those of his Subjects already planted there, for that was none of his own; and he could no more transfer their Property, than their Allegiance. I bespeak the Reader, bearing with this Digression, as what he will see just Reason for, and a good use made of by and by: But for the present he may Observe. 1. That the Government of Carolina is dependant upon England, and subject to the Laws, Government and Direction of the English Crown; and consequently their Grievances are cognizable in the Parliament of England. 2. There were Inhabitants in Carolina before the Grant made to the present Proprietors1 which Inhabitants had a Right both to the Government as well as Possession; which King Charles the Second, neither did, nor cou'd grant by Charter, or otherwise to any Body. 3. As their Allegiance to the English Crown cou'd not be transfer'd by Gift or Charter, so neither could the Protection of the English Government be deny'd them; and therefore, the Parliament of England has an undoubted Right to redress their Grievances, and to relieve them against all the Oppressions of their pretended Governours of what kind soever. And this is my Reason for the Argument. This Charter is a Creation of the Proprietors, both Temporal and Spiritual Lords of the Country, and gives them full Spiritual Dominion, as to Building and Forming Churches, with the Patronage, and Advowsion of them, the Dedication, Consecration, but limited to the Rites of the Church of England; a Continued Badge of their Dependance on this Kingdom, 1 At Chowan, in what is now North Carolina. A few New Englanders had also tried to raise cattle on the Charles (Cape Fear) River, but did not effect a permanent settlement. both in Spiritual Matters, as well as Temporal. The Tenure of this Regality is also held of the Mannor of Greenwich in the County of Kent, in Free and Common Soccage, paying to the Crown, as of the said Mannor, twenty Marks Yearly as a Quit-Rent, and a Fourth part of all Gold and Silver Oar, which shall be found. Nor was the Proviso for the Right of the People already planted, or to be planted, at all forgot in this Charter of the King; for in the first Empowering Clause of the Charter, it is expressly said, "To ordain, make, enact, and under their Seals to publish any Laws whatsoever. But how, By and with the Advice, and Assent, and Approbation of the Freemen of the said Province, or the greater Part of them. Vide the printed Charter, p. 4. This is incerted to remind those Gentlemen, that Assembling the Freemen of Carolina to make Laws, etc., was not a Voluntary Act of their own Clemency, but what they were oblig'd to, by the very Charter from whence they derive their Authority. Nor was it a Restriction of the meer Grace of the King, but according to the Native Right of the Freemen, Inhabitants of Carolina settled there before, provided for in the Clause before-mentioned, whose Right, even the King himself, had no Power to Dissolve or Transfer. In making the Laws these Assemblies are empower'd to Enact and Execute, It is further Remarkable, and of which, I hope, good Use will be made, His Late Majesty Charles the Second, lays another Double Restriction. 1. "Provided such Laws be consonant to Reason. 2. "As near as may be conveniently, agreeable to the Laws of England." His Majesty knew, that Law is the Result of Reason, and that the Sovereignty of Reason over all the Actions of Men, cannot be invaded, but that Laws offer'd by whatever Society of Men against Reason, are void of course, and therefore expressly prepar'd them to expect it. In the next place, His Majesty plainly signifies, that all their Laws ought to be corresponding with the English Constitution, Convenience of the People, Anglice, The Publick Good only excepted; by which is inferr'd, that Reason and the Publick Good are the principal Ends of all Law, and are to supersede all the Power granted to the Proprietors of Carolina, as indeed they ought to do all Humane Power committed to Man in the World. Upon these and Sundry other Conditions was the first Charter or Grant made to the Lords Proprietors of Carolina, dated the 24th of March, 15 Car. II. A Second Grant or Charter verbatim by the first, only Enlarging the Bounds, was granted to the same Lords Proprietors, dated the 30th of June 17 Car. II. and the Proprietors by these Two Charters are, Edward, Earl of Clarendon; George, Duke of Albemarle; William, Earl of Craven; John, Lord Berkeley; Anthony, Lord Ashley, afterwards Earl of Shaftsbury; Sir George Carteret, Sir John Colleton and Sir William Berkeley. Pursuant to these Charters, The Proprietors went on with the Settlement of this Colony, and knowing that on the good Government of the Province, and the large Priviledges granted to the Inhabitants, depended very much the Encouragement to Strangers of all Nations, as well as to the English, to Transport themselves, Families, and Estates thither, and consequently the Prosperity of the Colony, They form'd the Government of the said Province into a Publick Instrument, which they call the Fundamental Constitution of Carolina, consisting of 120 Articles, which in the last Article are declar'd, shall be and remain, the Sacred and Unalterable Form and Rule of Government of Carolina for ever.1 These Articles are afterwards abridg'd into One and Forty, containing the full Substance, Intent and Meaning of the aforesaid One Hundred and Twenty, and being first sign'd and sealed to by the Lords Proprietors, as the Pacta Conventa of Government, are presented to, and accepted by the Freemen, Freeholders and Inhabitants, and agreed to be past, in a Full and Free Parliament or Assembly, as the Sacred and Unalterable Conditions, on which they Consent to be Governed and Directed, and to which they submit. 1 Of the various forms in which the Fundamental Constitutions exist, that first printed was one (in 120 articles) bearing date March 1, 1669/70. This is reprinted in N. C. Col. Rec., I. 187-205, in Thorpe's Federal and State Constitutions, V. 2772-2786, in Old South Leaflets, no. 172, and elsewhere. The original draft, preserved among the Shaftesbury papers, is printed in the Thirty-third Report of the Deputy-Keeper of the Public Records (London, 1872), pp. 258-269. An Abridgement of the Constitutions, Consisting of 41 Articles. The Preamble sets forth, That K. Cha. the IId. having Granted to the Proprietors the Province of Carolina, with all the Royalties Privileges, etc., For the better Settlement of the Government of the said Province, the said Lords Proprietors agree to the following Form of Government to be perpetually Establish't, and which they oblige themselves to in the most binding Ways that can be Devis'd. The First five Articles contain the Regulation of Authority and Division of the Government into: 1. The Proprietors Court, to Consist of the Palatine, and seven Proprietors, and in the Absence of the Governor, and such Deputies as they Assign: This Court to have all the Supream Power Granted to the Proprietors in the Charter, as Calling and Dissolving Parliaments, Pardoning Offences, etc. The 6th to the 19th Article regulates the Parliament, to Consist of the Proprietors or their Deputies by themselves; The Landgraves and Casticks' in the Upper-House, and Freeholders in the Lower-House; this is their King, Lords, and Commons, and the Manner Exactly Regulated to the Simily, with Limitations and Quallifications for Electing, and being Elected, and the Privileges and Office of each House settled. To the 22d Article Exclusive is settled the Division of the Province into Counties, the Limitation of every ones Quantity in Possession, the Tryal of Causes and Crimes per Pares, the Choosing and Deputing the Governour, the Admitting Freemen, Establishing Religion, Churches, etc. To the 38th Article they determine what Society of Men, and on what Terms shall be Esteemed a Church, and the Regulating Religious Matters, wherein the only Religious Quallifications, by which any Man is Admitted a Member of any Church, and of the Government are these two: 1. That he believes there is a God, 2. That God is Publickly to be Worshiped. A Third Article Obliging all People to bear Witness in Cases Required to Truth, either by Oath or some Equivalent, is added. The 39th Article is positive. "No Person whatsoever shall Disturb, Molest, or Persecute another for his Opinion in Religion, or Way of Worship." The two last Articles settle the Freemens Power over their Slaves, and the Form of Signing the Constitutions by all Persons admitted into Office or Trust. And the Conclusion of these Articles are thus, Those Fundamental Constitutions in Number Forty One, and every Part thereof shall be and remain the inviolable Form and Rule of Government of Carolina for ever. 3 Witness our Hands and BATH, Palatine,1 A. ASHLEY, CRAVEN, BATH for Ld. Cartaret, Seals 11 April, 1698. for Sir John Colleton. THO. AMY, WILLIAM THORNBURGH. These Constitutions I know have obtain'd upon the World, to be the Contrivance of the Old Earl of S-bury; but I think, I have very good Authority, to assure the World Mr. Lock had the Right of Parentage to the former; whether I ought to contend for either the Policy or Humane Understanding, in Right of either of these Great Men in the Contrivance or no, I shall not debate. I am certain of this, they handed the Infant Government into the World without Leadingstrings, and turn'd it loose before it cou'd stand alone; by which means, like young Romulus, it has got a Wolf to its Nurse, and is like to be bred up a Monster. 'Tis true, these Constitutions were not actually past in any Assembly, and so may be objected against, as not so binding as in other Cases they would be. But they were sign'd by the Proprietors, and in the Infancy of the Settlement by the Inhabitants, as they came there to Settle; and were only referr'd to a Parliament or Assembly when the Colony was considerable enough to require it. In these Parliaments, these People have always opposed passing the Constitutions, fearing without doubt, to come under the Fetters of the Law, and a just Government; and knowing the Measures they design'd to take, were destructive 1 The eldest proprietor, at this time Lord Bath, was called the palatine. 2 Shaftesbury. 3 John Locke the philosopher. |
