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It has been said, "nothing so absurd as never to have been defended by any of the philosophers." It would have been a curious thing to have seen the cumbrous machinery put into operation, which our philosophers in this instance
the noted names of Shaftsbury and Locke gives an interest to every thing connected with them. We view first the three principal departments of the Constitution,—the Executive—Legislative—Judiciary, and then come to the details of the system.
I. The Executive. This power was lodged in the Palatine's Court rather than in the hands of a single officer. The Palatine was the highest officer in the State, but had little power per se. The Palatine's Court consisted simply of the Proprietors. Pour of them were necessary to an Act; and this Court was charged with the appointment of all officers, the expending of moneys,—pardoning, vetoing—calling and dissolving Parliaments, etc. The power to make war was not given it.
II. The Legislative. There were two legislative bodies.
1. The Grand Council, or Upper House. Popular element little recognized in it. Palatines, Proprietors, and Counsellors the only members. The treaty making power placed here, as also the powers to originate and prepare all laws before they could appear in the other House. This met once a month.
2. The Parliament, or Lower House. Four Estates comprised in it—sitting in a single room.
a. The Proprietors,—always to be eight in number; eldest, Palatine. Estate of each one-fortieth of every county,—a seigniory. Whole Province to be subdivided into counties.
e. The Landgraves—one over every county, with 48,000 acres of land.
i. The Cassiques—two to a county. Estate, 24,000 acres each.
0. The Commons—Every fourth part of a county, or precinct, sent one, elected for two years.
This Parliament was the law-making body. Assent of Palatine and four Proprietors necessary to every law. If this assent given through their deputies, law expired after two years, unless act of deputies confirmed. A peculiar veto existed here. In effect, if not in Mis verbis, that of the Roman Tribune. Before the consent of the Palatine or his deputy obtained, any Proprietor or deputy might protest; a debate ensued; the four estates retired to separate chambers; a majority of either voting the law unconstitutional, destroyed it in any stage of its progress. How complex !—what opposing checks! Dissent the Grand Council, and the law could never come before Parliament. Assent both, and a Proprietor or his deputy, with the major part of either estate, defeated that assent. Unite all of these, and the Palatine's Court charges down with its veto,—or the Crown of England, in the last resort,—and this under the Charter.
III. The Judiciary. Five descriptions of Courts.
1. Supreme Courts,—of these eight.
1. Palatine's Court.
2. Proprietor's Cour/s. To each of these one Proprietor, six Counsellors, and a College of twelve Assistants. Counsellors and Assistants chosen in a peculiar manner by the Estates. The great preponderance in favor of the nobility and landed interests. The Grand Council could expel any of these, but could never expel a Proprietor, his right being an inherent, original one. Quorum in each, a Proprietor and three Counsellors. In certain cases these appeal courts. Judgment final. In criminal matters exercising control over inferior courts.
a. The Chancellor's Court. Chancellor Speaker in Parliament, and Presi
with all gravity, "ordained and established." The man, reversing the natural order, was to be made for the law, and not the law for the man. The cage made first, and then the lion to be put into it. But the lion proved too strong for the cage, and trampled it under his feet with disdain. You may reduce men to bondage, where they are effeminate from luxury or lost in the aggregate mass, but let them feel their individuality in a new world,—in the wild forests,—nature will speak there, and they will be free.
"If you have nature in you, bear it not."
The Constitutions were ill-suited to colonial infancy,— and when power came, they were rejected with indignation. What were landgraves and cassiques and lords, to men struggling in a wilderness against nature and against man. These
dent of the Grand Council. Each of his Counsellors a Vice-Chancellor,— each Assistant a Recorder. Chancery powers in general exercised here.
b. Chief Justice's Court. Appeals heard. Counsellors Justices; Assistants Masters.
c. Constable's Court. Military tribunal. Constable, in Palatine's absence, commander-in-chief in war. Each Counsellor a Marshal,—Assistant, Lieut. General.
d. AdmiraVs Court. Powers of the Incident and Prize Courts of Admiralty in England. In war, the Admiral and officers of his court held command in the navy.
e. Treasurer's Court, with Under Treasurers and Auditors.
f. Chamberlain's Court. A Court of Heraldry. In many points, jurisdiction of an English Ecclesiastical Court. A Court of fashions, habits, games and sports. Officers, Vice Chamberlains and Provosts.
g. High Steward's Court. Trade, manufactures, buildings, towns, roads, bridges, ferries, health. Comptrollers and Surveyors as officers.
2. Courts of Assize. Commissioners to go into the several counties for the trial of capital offences. These were of the Grand Council, of the Counsellors or Assistants, and associated themselves with the Justices and Sheriffs of counties.
3. County Courts. Sheriff and four Justices in each; chosen and commissioned by Palatine's Court. Appeals from PrecinctCourts.
4. Precinct Courts. Steward and four Justices each. Cognizance of criminal causes less than capital, and all civil causes.
5. Seignory, Barony and Manor Courts. Held before the Lord. Causes civil and criminal between vassals and leet men,—without appeal. If others concerned, appeal to Precinct or County Courts.
We proceed to examine the constitutions under a few other divisions.
I. Religion. Church of England Establishment. Dissenting churches tolerated, having each its terms of communion drawn up, and names of communicants. Every such church must agree that there is a God, and that he is to be worshipped. No citizenship to other than a communicant in some church. No place of honor or profit. (0,1 Would not this ensure some sad communicants or a deistical church 1)
II. Revenue. All land held of the Proprietors with a rent tax. All wrecks, mines, etc., pearl and whale fishery, ambergris, etc., to them forever. Palatine's share, three-tenths of the whole.
37 Vol. vn.—wo. 14.
constitutions were the only attempt to establish an order of nobility in America, where all are nature's noblemen. An aristocracy alone was aimed at. Popular liberty altogether out of the question. From the construction of the government, an aristocratic majority might,almost in every instance, be relied on. Two-fifths of all the land belonged to the nobility. Every thing was dependent upon property. "Money," "money," sounded from every part of the government. O majestas nummorumsanctissima est! We will not sell justice,—Nulli vendemus, nulli negabimus, aut differemus rectum aut justiciam, said Magna Charta; here it was on all occasions sold. The right to appeal was fixed at a certain price, in different courts. High property qualifications were annexed to every privilege. Estates of nobility inalienable. These were among the most arbitrary provisions. The provision in these constitutions which admitted a majority of the jury to decide, is one which leans on the side of arbitrary power, against liberty. In State prosecutions, a majority of the Court may be influenced by authority, corrupted or overawed, but a unanimous verdict is freed from this danger, for it could hardly happen that the jury-box should not contain at least one man of incorruptible integrity. This clause was directly repugnant to the English constitution, one peculiarity of which, from all antiquity, is this very unanimity, distinguishing it from the nembda, or Gothic jury, which required a consent from the major part only.
lit. Property. Elective franchise and office only to land-holders. Fifty acres to the lowest officer,—a voter; five hundred to the highest,—a juror, or a member of parliament. Appeals to higher Courts, even in criminal matters, disposed of at a fixed price. Proprietary estates inalienable after a certain time, (unless "for terms under three lives.") In descent of lands, heirs male preferred. Failure of heirs to a Proprietor, his colleagues elect a new one. Oldest Proprietor, Palatine. Failure of heirs of Landgraves or Cassiques, reversion to Proprietors. Manors indivisible.
IV. Slaves. 1. Led Men—serfs or villeins. Under their lords without appeal. Bound to the soil. Their descendants leet men and women forever. Leet men made by entering their names as such. On marriage, to receive of the Lord land at a small rent.
2. Negroes. Absolute power over them in master. Not manumitted by church membership. An odd notion to the contrary being held in England at the time.
V. Nobility never to be diminished in number. Tried by their peers in the Chief Justice's Court. Appointed by Proprietors. Never to hold more than one dignity at a time. Palatine and Proprietors may act by Deputies. Deputies must be of the Nobility or Counsellors. No cause of any nature tried without a jury. (Q,. Would not this sweep chancery away X) Majority of jury decide. No advocate allowed to plead, without oath that he is unpaid. No law valid after a hundred years, (except constitutions.) No comments upon constitutions or laws allowed. Constitutions read at every Parliament. Naturalization conferred forever by signing the constitutions.
But, then, we must not complain too much of the constitutions for. their strong anti-liberty bias. They were framed in an age, when a reaction was taking place against this liberty,—when the popular element, even in the English constitution, had began to be looked upon as the cause of the terrible convulsions through which the State had but lately passed. The noblemen who framed these laws, were not unmindful of their own order. Like their brethren of another age, who wrested from King John the Magna Charta of their rights, they admitted the people to no more of these rights than necessity demanded. With regard to the lowest order of the State,—the villeins, serfs, (or leet men, as they are called in Locke's Constitutions,)—neither instrument considered them as having any claims whatever. Their condition under Magna Charta was, if any thing, preferable. Here they could never be emancipated. Their descendants must forever be as themselves. What more gloomy than such a prospect! The rigidity of Indian castes was not more severe. The Egyptian "hereditary professions" not less philosophical. Not by nature were these a degraded race of men, but by adventitious circumstances. Should they never triumph over these? Should they ever remain, as in the constitutions, "under their lords without appeal?"
With regard to the slaves proper of the constitution,—the negroes,—the worst feature of the Roman law was displayed, the master's power of life and death over them. Mr. Bancroft does not wonder at this from John Locke, when Grolius could defend the institution of slavery, and William Penn employ the labor of African bondmen. The present condition of the African slave, when contrasted with this provision, ought forever to silence the wretched cry of abolitionism.*
• Slavery and the slave trade, says Bancroft, aite older than the records of human society. They existed among the Egyptians and the Hebrews. All Phenicia and Scythia trafficked in slaves. At Athens, at Macedon, at Rome,—most repulsively under the Anglo-Saxons, Germany, France, Russia, Turkey, Italy. Christianity introduced anew feature. The Crusaders established the principle that infidels might be enslaved. Even Lord Bacon seemed to admit, that war might be made upon them tor the propagation of the Christian faith.—1 Kent, 10. When the Moors, overcome by Christians, removed to Africa, all Africans were esteemed Moors;—hence African slavery. But African slavery first existed in Africa. The nations Ihere enslaved each other. Herodotus speaks of Negro slaves. "The Ne
The Constitutions prohibited any comments to be written upon them. One might have supposed that history would have taught the Proprietors the absurdity of such a law. The same thing was decreed by Justinian, after the digest of his celebrated body of laws. Every commentator upon it "incurred the guilt of the crimen falsi" but, in defiance of the command, says Kent, it was overloaded with the commentaries of civilians. Every law was to expire after a hundred years, and yet in the same breath the monstrous folly of "sacred and unalterable constitutions." The laws of the Medes and Persians re-produced—those inflexible laws which might never be changed. No advocate to plead in any case for a fee. At one "fell swoop,'' farewell to the whole body of lawyers, who have been so celebrated in every age. Even the religious toleration of these constitutions was suspicious. "Its courts of games and fashions," says the historian, "supposed that men would submit their minds, women their tastes, and children their pastimes, to a tribunal." Naturalization was forever to be conferred by the simple act of signing the constitutions. What must be thought of the
gro race exists in the catacombs, in the mixed or Negroloid character. Even in this modified type their presence is comparatively unfrequent. If Negroes, as is more than probable, were numerous in Egypt, their social position was chiefly in ancient times, what it yet is,—that of plebeians, servants and slaves."—Nott's Lectures on the Caucasian and Isegro Races, p. 15. Negro slaves existed in Greece and Rome. They existed in Europe before the discovery of America. As early as 1443, they were introduced from Africa by the Portuguese. The Spaniards are even said to have preceded the Portuguese. The first emigrants to America enslaved the Indians. Las Casas suggested African slavery in Hispaniola. Queen Elizabeth was the first English sovereign to engage in the traffic,—Massariustt/s the first colony! Virginia first sold to slavery her white servants that came over. In 1620, African slaves were introduced there. See the admirable chapter in Bancroft on this subject,—Hist. U. S., chap. v.—Kent's Com., vol. i., p. 191. The Barbadoes planters brought African slaves to Carolina coeval with the colony. In a few years they outnumbered the whites, two to one. Every colony received them. The slave trade terminated first at the South. Virginia and North-Carolina, in 1773, resolved to discontinue it. The first law I find in South-Carolina, relating to slaves, passed 1683. This is lost. Our collection of Statutes commences with 1685. Between 1690 and 1835,1 find forty-two enactments upon the subject. The earlier sanguinary, but, by degrees, assuming a mild and humane character. The condition of this class must be ameliorated,—but never by foreign influence. Our own humanity and enlightenment will dictate the proper amelioration. Of this humanity and enlightenment we claim quite as much as our neighbors. Every law, prior to 1751, on the subject of slaves in South-Carolina, expired before the Revolution. "Let the philnnlhropisU of the day rccoUcct thai they were British and not American laws," says the Editor of our Statutes.