Fundamental Constitution of Carolina

Part constitution and part promotional tract, the Fundamental Constitutions of Carolina comprised a much revised document that the Lords Proprietors devised to govern their New World province. In 1663 and 1665 eight supporters of Charles II, the Lords Proprietors of Carolina, secured royal charters to a vast tract of land between 31o and 36o latitude and extending from the Atlantic to the Pacific. Anthony Ashley Cooper, Whig politician and chief proprietor, and his secretary, the future social philosopher John Locke, devised a written constitution for Carolina that featured an elaborate social and governmental structure based on hereditary landownership and, for its time, progressive attitudes toward religious toleration. The guiding principles of the Fundamental Constitutions were that landownership was the bedrock of society and that Carolina’s government should be organized to avoid creating a “numerous democracy.”

Because the first draft of the Fundamental Constitutions, dated July 21, 1669, is in John Locke’s handwriting, scholars have occasionally surmised that he was its author. Early editions of Locke’s writings included the Fundamental Constitutions among his works. However, evidence suggests that Ashley Cooper was the chief author of the constitution while Locke acted as his secretary and copyist. The political values of the constitution reflect the influence of the political philosopher James Harrington. In his political utopia in Oceana (1656), Harrington described a nation ruled by landed classes and governed by an unalterable written constitution. Locke’s Two Treatises on Civil Government (1690) and his writings on religious toleration postdate his association with the Lords Proprietors, and their emphasis on social contract and natural law contradict some elements of the Fundamental Constitutions.

The Fundamental Constitutions established a Carolina aristocracy, with the Lords Proprietors at the apex of society, provincial nobles called landgraves and cassiques (or caciques), and freemen. Landless tenants, called leetmen, were the base of the social pyramid described in the constitution. Slavery was authorized and protected. In early versions of the Fundamental Constitutions, the sale and purchase of land were prohibited to preserve the chain of tenancy from the proprietors to the freemen. The written provisions of the constitution were to be unalterable, and upon arriving in Carolina settlers were expected to affirm in writing their allegiance to the proprietors and their support of the Fundamental Constitutions. The province was divided into counties, which were to be the chief units of government. Counties were divided into seigniories, baronies, and precincts, which corresponded to the three classes of society: proprietors, local nobility, and freemen. The amount of land an individual held determined his or her rights and responsibilities in the province.

The highly structured Fundamental Constitutions, with the document’s complicated system of government, has been called anachronistic, and the emphasis on landownership and tenancy has been deemed feudalistic. But it also had elements that looked to the future, not the past. The proprietors’ insistence on a written constitution as the wellspring of authority and their provisions for considerable religious liberty in the province were innovative. Ultimately, the Fundamental Constitutions was never adopted and was frequently repudiated by Carolinians as impractical and unrealistic. Conflict between the proprietors to implement the constitution and Carolina settlers to determine their own form of government comprehends much of the political history of early Carolina. The structure of government prescribed by the constitution was so complex and required such a large number of settlers of all classes that it never could be established in a small frontier province.

To implement the mixed judicial and executive offices described in articles 27 and 28 would have required 134 men, 8 of whom were the proprietors or their deputies, while the remainder, excepting 24 chosen by Commons House members, had to own at least twelve thousand acres. The growth of such a squirearchy would have required decades to achieve.

From 1669 to 1698 the proprietors promulgated four amended versions of their unalterable Fundamental Constitutions, each of which was shorter and granted more political concessions to the Carolinians than its predecessor. The July 21, 1669, version contained 111 articles, but by March 1, 1670, the unaltered text had been renumbered into 120 articles. This 1670 version was published and disseminated as a tool to recruit settlers. Its religious provisions, which permitted settlement by “Heathens, Jews, and other dissenters” and establishment of any church by seven persons with the exception of Catholics, proved a beacon to Baptists, Huguenots, and Congregationalists, who settled in Carolina prior to 1700. The proprietors revised the Fundamental Constitutions twice in 1682 to attract new settlers, publishing them in English, French, and German to appeal to persecuted Protestants throughout Europe. The second 1682 revision was made in response to overtures by Scottish Covenanters interested in leaving Scotland for the New World. Freedom to buy and sell lands was secured, local political bodies secured more authority, and all churches excepting Catholics secured the right to tax their members. In response to these revisions, in 1684 Scottish settlers established Stuart Town on Port Royal Sound. The short-lived settlement was destroyed by the Spanish in 1686. The final version of the Fundamental Constitutions, issued in April 1698, was a pale shadow of its predecessors. It contained only 41 articles and had lost virtually all of its aristocratic provisions. This skeleton-like final version was powerful evidence that by 1698 Carolinians had achieved a good measure of control over their government and would endure little interference from the Lords Proprietors. The 1698 version was debated off and on for several years in the Commons House of Assembly as a bill, not a constitution. Finally, it was tabled in 1706 and never taken up again. Ironically, the rebels who overthrew the Lords Proprietors’ government in 1719 used the proprietors’ frequent amendment of the constitution as an example of their tyranny and indifference to good government.

Modern scholars identify some positive elements in the Fundamental Constitutions. They consider South Carolina’s historic toleration of religious diversity to be a legacy of the constitution. Early settlement by members of persecuted faiths, especially Jews and Huguenots, gave the province a culturally mixed society not found in other southern states.

Moore, John Alexander. “Royalizing South Carolina: The Revolution of 1719 and the Evolution of Early South Carolina Government.” Ph.D. diss., University of South Carolina, 1991.

Parker, Mattie E. E., ed. North Carolina Charters and Constitutions, 1578–1698. Raleigh, N.C.: Carolina Charter Tercentenary Commission, 1963.

Underwood, James L. The Constitution of South Carolina. Vol. 3, Church and State, Morality and Free Expression. Columbia: University of South Carolina Press, 1992.