An Historical Account of the Rise and Progress of the Colonies of South Carolina And Georgia Volume I Part 13

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 privileges of a county palatine, as large and ample as the county palatine of Durham, with other great privileges; for the better settlement of the government of the said place, and establis.h.i.+ng 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.

I. 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.

II. 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 a.s.signed 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.

III. The whole province shall be divided into counties; each county shall consist of eight signiories, eight baronies, and four precincts; each precinct shall consist of six colonies.

IV. Each signiory, barony, and colony, shall consist of twelve thousand acres; the eight signiories being the share of the eight proprietors, and the eight baronies of the n.o.bility; both which shares, being each of them one fifth part of the whole, are to be perpetually annexed, the one to the proprietors, the other to the hereditary n.o.bility, leaving the colonies, being three fifths, amongst the people; that so in setting out, and planting the lands, the balance of the government may be preserved.

V. 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 proprietors.h.i.+p, and all the signiories, powers, and interest, thereunto belonging, wholly and entirely 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 proprietors.h.i.+p, with the signiories and privileges thereunto belonging, or any part thereof, to any person whatsoever otherwise than as in Paragraph XVIII; but it shall all descend unto their heirs male, and, for want of heirs male, it shall all descend on that Landgrave or Ca.s.sique 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, chuse 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.

VI. That the number of eight proprietors may be constantly kept; if, upon the vacancy of any proprietors.h.i.+p, the seven surviving proprietors shall not chuse 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 chuse any landgrave to be a proprietor.

VII. Whosoever after the year one thousand seven hundred, either by inheritance or choice, shall succeed any proprietor in his proprietors.h.i.+p, and signiories 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.

VIII. Whatsoever Landgrave or Ca.s.sique shall any way come to be a proprietor, shall take the signiories annexed to the said proprietors.h.i.+p; but his former dignity, with the baronies annexed, shall devolve into the hands of the Lords Proprietors.

IX. There shall be just as many landgraves as there are counties, and twice as many ca.s.siques, and no more. These shall be the hereditary n.o.bility of the province, and by right of their dignity be members of parliament. Each landgrave shall have four baronies, and each ca.s.sique two baronies, hereditarily and unalterably annexed to, and settled upon, the said dignity.

X. The first landgraves and ca.s.siques 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 chuse 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 ca.s.siques, each proprietor for himself shall nominate and chuse 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 chuse twelve more landgraves, and twenty-four ca.s.siques, for the twelve next 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 one-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 CONSt.i.tUTIONS.

XI. Any landgrave or ca.s.sique 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 entirely together. But, after the year one thousand seven hundred, no landgrave or ca.s.sique shall have power to alienate, sell, make over, or let, the hereditary baronies of his dignity, or any part thereof, therwise than as in Paragraph XVIII; but they shall all entirely, with the dignity thereunto belonging, descend unto his heirs male; and, for want of heirs male, all entirely and undivided, to the next heir general; and, for want of such heirs, shall devolve into the hands of the Lords Proprietors.

XII. That the due number of landgraves and ca.s.siques may be always kept up; if, upon the devolution of any land graves.h.i.+p or ca.s.siques.h.i.+p, 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 ca.s.sique in the room of him, who, dying without heirs, his dignity and baronies devolved.

XIII. No one person shall have more than one dignity, with the signiories or baronies thereunto belonging. But whensoever it shall happen that any one, who is already proprietor, landgrave, of ca.s.sique, 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 land 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.

XIV. Whosoever, by the right of inheritance, shall come to be landgrave or ca.s.sique, 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.

XV. Since the dignity of proprietor, landgrave, or ca.s.sique, cannot be divided, and the signiories or baronies thereunto annexed must for ever all entirely 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 preferred, and in the inheritance of those dignities, and the signiories or baronies annexed, there shall be no co-heirs.

XVI. 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, va.s.sal, or leet-man of the said signiory, barony, or manor, he, upon paying down of forty s.h.i.+llings to the Lords Proprietor's use, shall have an appeal from the signiory or barony-court to the county-court, and from the manor-court to the precinct-court.

XVII. Every manor shall consist of not less than three thousand acres, and not above twelve thousand aces, in one entire 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 const.i.tuted a manor by the grant of the Palatine's court.

XVIII. The lords of signiories and baronies shall have power only of granting estates not exceeding three lives, or thirty-one years, in two thirds of the said signiories or baronies, and the remaining third shall be always demesne.

XIX. Any lord of a manor may alienate, sell, or dispose, to any other person and his heirs for ever, his manor, all entirely together, with all the privileges 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.

XX. No manor, for want of issue male, shall he divided amongst co-heirs; but the manor, if there be but one, shall all entirely 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, till all the manors be taken up; that so the privileges which belong to manors being indivisible, the lands of the manors, to which they are annexed, may be kept entire, and the manor not lose those privileges, which, upon parceling out to several owners, must necessarily cease.

XXI. Every lord of a manor, within his manor, shall have all the powers, jurisdictions, and privileges, which a landgrave or ca.s.sique have in his baronies.

XXII. In every signiory, barony, and manor, all the leet-men shall be under the jurisdiction of the respective lords of the said signiory, barony, or manor without appeal from him. Nor shall any leet-man, or leet-woman, have liberty to go off from the land of their particular lord, and live any where else, without licence obtained from their said lord, under hand and seal.

XXIII. All the children of leet-men shall be leet-men, and so to all generations.

XXIV. No man shall be capable of having a court-leet, or leet-men, but a proprietor, landgrave, ca.s.sique, or lord of a manor.

XXV. Whoever shall voluntarily enter himself a leet-man, in the registry of the county-court, shall be a leet-man.

XXVI. Whoever is lord of leet-men, shall, upon the marriage of a leet-man or leet-woman of his, give them ten acres of land for their lives; they paying to him therefore not more than one eighth part of all the yearly produce and growth of the said ten acres.

XXVII. No landgrave or ca.s.sique shall be tried for any criminal cause in any but the chief justice's court, and that by a jury of his peers.

XXVIII. There shall be eight supreme courts. The first called the Palatine's court, consisting of the palatine and the other seven proprietors. The other seven courts of the other seven great officers, shall consist each of them of a proprietor, and six counsellors added to him. Under each of these latter seven courts, shall be a college of twelve a.s.sistants. The twelve a.s.sistants of the several colleges shall be chosen, two out of the landgraves, ca.s.siques, or eldest sons of proprietors, by the Palatine's court; two out of the landgraves, by the landgraves chamber; two out of the ca.s.siques, by the ca.s.sique's chamber; four more of the twelve shall be chosen by the commons chamber, out of such as have been, or are, members of parliament, sheriffs, or justices of the county court, or the younger sons of proprietors, or eldest sons of landgraves or ca.s.siques; the two other shall be chosen by the palatine's court, out of the same sort of persons, out of which the commons chamber is to chuse.

XXIX. Out of these colleges shall be chosen at first, by the Palatine's court, six counsellors, to be joined with each proprietor in his court; of which six, one shall be of those who were chosen in any of the colleges by the Palatine's court, out of the landgraves, ca.s.siques, or eldest sons of proprietors; one out of those who were chosen by the landgraves chamber; and one out of those who were chosen by the ca.s.siques chamber; two out of those who were chosen by the commons chamber; and one out of those who were chosen by the Palatine's court, out of the proprietors younger sons, or eldest sons of landgraves, ca.s.siques, or commons, qualified as aforesaid.

x.x.x. When it shall happen that any counsellor dies, and thereby there is a vacancy, the grand council shall have power to remove any counsellor that is willing to be removed out of any of the proprietors courts to fill up the vacancy; provided they take a man of the same degree and choice the other was of, whose vacant place is to be filled up. But if no counsellor consent to be removed, or upon such remove, the last remaining vacant place, in any of the proprietor's courts, shall be filled up by the choice of the grand council, who shall have power to remove out of any of the colleges, any a.s.sistant, who is of the same degree and choice that counsellor was of, into whose vacant place he is to succeed. The grand council also shall have power to remove any a.s.sistant, that is willing, out of one college into another, provided he be of the same degree and choice. But the last remaining vacant place in any college, shall be filled up by the same choice, and out of the same degree of persons the a.s.sistant was of, who is dead or removed. No place shall be vacant in any proprietor's court above six months. No place shall be vacant in any college longer than the next session of parliament.

x.x.xI. No man, being a member of the grand council, or of any of the seven colleges, shall be turned out but for misdemeanour, of which the grand council shall be judge; and the vacancy of the person so put out shall be filled, not by the election of the grand council, but by those who first chose him, and out of the same degree he was of who is expelled. But it is not hereby to be understood, that the grand council hath any power to turn out any one of the Lords Proprietors or their deputies, the Lords Proprietors having in themselves an inherent original right.

x.x.xII. All elections in the parliament, in the several chambers of the parliament, and in the grand council, shall be pa.s.sed by balloting.

x.x.xIII. The Palatine's court shall consist of the Palatine and seven proprietors, wherein nothing shall be acted without the presence and consent of the Palatine or his deputy, and three others of the proprietors or their deputies. This court shall have power to call parliaments, to pardon all offences, to make elections of all officers in the proprietor's dispose, and to nominate and appoint Port Towns; and also shall have power by their order to the treasurer to dispose of all public treasure, excepting money granted by the parliament, and by them directed to some particular public use; and also shall have a negative upon all acts, orders, votes and judgments, of the grand council and the parliament, except only as in Paragraphs VI. and XII.; and shall have all the powers granted to the Lords Proprietors, by their patent from OUR SOVEREIGN LORD THE KING, except in such things as are limited by these FUNDAMENTAL CONSt.i.tUTIONS.

x.x.xIV. The Palatine himself, when he in person shall be either in the army or in any of the proprietors courts, shall then have the power of general, or of that proprietor, in whose court he is then present; and the proprietor, in whose court the Palatine then presides, shall during his presence there be but as one of the council.

x.x.xV. The chancellor's court, consisting of one of the proprietors, and his six counsellors, who shall be called vice-chancellors, shall have the custody of the seal of the palatine, under which all charters of lands, or otherwise, commissions and grants of the Palatine's court, shall pa.s.s. And it shall not be lawful to put the seal of the palatinate to any writing, which is not signed by the Palatine or his deputy, and three other proprietors or their deputies. To this court also belong all state matters, dispatches, and treaties with the neighbour Indians. To this court also belong all invasions of the law, of liberty of conscience, and all disturbances of the public peace, upon pretence of religion, as also the licence of printing. The twelve a.s.sistants belonging to this court shall be called recorders.

x.x.xVI. Whatever pa.s.ses under the seal of the palatinate, shall be registered in that proprietor's court, to which the matter therein contained belongs.

x.x.xVII. The chancellor or his deputy shall be always speaker in parliament, and president of the grand council, and, in his and his deputy's absence, one of his vice-chancellors.

x.x.xVIII. The chief justice's court, consisting of one of the proprietors and his six counsellors, who shall be called justices of the bench, shall judge all appeals in cases both civil and criminal, except all such cases as shall be under the jurisdiction and cognizance of any other of the proprietor's courts, which shall be tried in those courts respectively.

The government and regulation of the registries of writings and contracts, shall belong to the jurisdiction of this court. The twelve a.s.sistants of this court shall be called masters.

x.x.xIX. The constable's court, consisting of one of the proprietors and his six counsellors, who shall be called marshals, shall order and determine of all military affairs by land, and all land-forces, arms, ammunition, artillery, garrisons, forts, &c. and whatever belongs unto war. His twelve a.s.sistants shall be called lieutenant-generals.

XL. In time of actual war, the constable, while he is in the army, shall be general of the army, and the six counsellors, or such of them as the Palatine's court shall for that time or service appoint, shall be the immediate great officers under him, and the lieutenant-generals next to them.

XLI. The admiral's court, consisting of one of the proprietors, and his six counsellors, called consuls, shall have the care and inspection over all ports, moles, and navigable rivers, so far as the tide flows, and also all the public s.h.i.+pping of CAROLINA, and stores thereunto belonging, and all maritime affairs. This court also shall have the power of the court of admiralty; and shall have power to const.i.tute judges in port-towns, to try cases belonging to law-merchant, as shall be most convenient for trade. The twelve a.s.sistants, belonging to this court, shall be called proconsuls.

XLII. In time of actual war, the admiral, whilst he is at sea, shall command in chief, and his six counsellors, or such of them as the Palatine's court shall for that time and service appoint, shall be the immediate great officers under him, and the proconsuls next to them.

XLIII. The treasurer's court, consisting of a proprietor and his his counsellors, called under-treasurers, shall take care of all matters that concern the public revenue and treasury. The twelve a.s.sistants shall be called auditors.

XLIV. The high-steward's court, consisting of a proprietor and his six counsellors, called comptrollers, shall have the care of all foreign and domestic trade, manufactures, public buildings, work-houses, high-ways, pa.s.sages by water above the flood of the tide, drains, sewers, and banks against inundations, bridges, post, carriers, fairs, markets, corruption or infection of the common air or water, and all things in order to the public commerce and health; also setting out and surveying of lands; and also setting out and appointing places for towns to be built on in the precincts, and the prescribing and determining the figure and bigness of the said towns, according to such models as the said court shall order; contrary or differing from which models it shall not be lawful for any one to build in any town. This court shall have power also to make any public building, or any new highway, or enlarge any old high-way, upon any man's land whatsoever; as also to make cuts, channels, banks, locks, and bridges, for making rivers navigable, or for draining fens, or any other public use. The damage the owner of such lands (on or through which any such public things shall be made) shall receive thereby, shall be valued, and satisfaction made by such ways as the grand council shall appoint. The twelve a.s.sistants, belonging to this court, shall be called surveyors.

XLV. The chamberlain's court, consisting of a proprietor and his six counsellors, called vice-chamberlains, shall have the care of all ceremonies, precedency, heraldry, reception of public messengers, pedigrees, the registry of all births, burials, and marriages, legitimation, and all cases concerning matrimony, or arising from it; and shall also have power to regulate all fas.h.i.+ons, habits, badges, games and sports. To this court also it shall belong to convocate the grand council. The twelve a.s.sistants, belonging to this court, shall be called provosts.

XLVI. All causes belonging to, or under the jurisdiction of, any of the proprietors courts, shall in them respectively be tried, and ultimately determined, without any farther appeal.

XLVII. The proprietors courts shall have a power to mitigate all fines, and suspend all executions in criminal causes, either before or after sentence, in any of the other inferior courts respectively.

XLVIII. In all debates, hearings, or trials, in any of the proprietor's courts, the twelve a.s.sistants belonging to the said courts respectively, shall have liberty to be present, but shall not interpose, unless their opinions be required, nor have any vote at all; but their business shall be, by the direction of the respective courts, to prepare such business as shall be committed to them; as also to bear such offices, and dispatch such affairs, either where the court is kept or elsewhere as the court shall think fit.