Analysis: The Fundamental Constitutions of Carolina

Date: March 1, 1669

Author: Locke, John

Genre: constitution; law

Summary Overview

In 1669, John Locke drafted the Fundamental Constitutions of Carolina on behalf of his friend Lord Anthony Ashley-Cooper, one of the eight Lords Proprietor of the growing British colony of Carolina. The Lords Proprietor, or Lords Proprietors as they were also called at the time, ruled the colony on behalf of the king.

Locke was a political and social theorist, and his writing often reflected his belief that human nature was the cause of many political problems. Thus, the Constitutions were a complicated set of regulations that were to precisely spell out how the colony’s government was to be established and administered, and they firmly established the English monarchy’s rule over the colony. Although the document was revised several times over many years (and was adopted each time by the Lords Proprietors), the Carolina settlers never accepted the proposal, preferring the more flexible arrangement in the original charter. Therefore, Constitutions were never ratified by the colonial assembly. However, many of Locke’s ideas on politics and human nature influenced other colonial documents, including some of the founding documents of the United States.

Document Analysis

An important development in Locke’s philosophy was his belief that political problems were directly tied to the realities of human nature. He wrote unpublished essays on the law of nature in 1663 in which he first explored this idea, and many of his later political writings were influenced by this belief. His own empirical observations about the way people behaved also shaped his doctrines, as can be seen in his general treatises and the official documents he helped draft, such as the Fundamental Constitutions drafted on behalf of England for the Carolina colony.

The Province of Carolina was chartered in 1663 by King Charles II of England, and he granted land interests and the authority to govern the colony to eight Lords Proprietors, who were also friends of the king. One of these men was Lord Anthony Ashley-Cooper. Locke met Ashley-Cooper in 1665 when he had come to Oxford for medical treatment, and the two men became friends. Their friendship grew, as did Locke’s interest in politics, and as one of the Lords Proprietor of the Carolinas, Ashley-Cooper enlisted Locke’s assistance to help draft the Constitutions for the growing colony.

From the very first paragraphs of the document, the Constitutions clearly established that the English monarchy was to retain full power over the Carolina colony, 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.” While later sections do establish a system of local government to handle day-to-day affairs within the colony, ultimate decision-making power over all colonial matters remained in the hands of the King of England through the governance of the Lords Proprietors.

The emphasis on the continued ruling power of the English monarchy is not surprising for several reasons. First, the Constitutions were written in England by noblemen, many of whom had never visited the colony and were interested in it only as an investment. Also, the document was commissioned by the wealthy landowners of the colony, the Lords Proprietors of Carolina, who had a vested interest in ensuring that they retained control over their North American land. By requiring the colonists to maintain allegiance to the King who had granted them this land, the Lords Proprietors were doing what they felt was necessary to ensure their continued financial return on their investment.

For Locke’s part, his earlier writings (in particular the Two Tracts of Government, which he wrote around 1660) expressed the belief that absolute state authority in matters of politics was necessary to preserve unity and keep the peace. He suggested that the exact format of that ruling body, whether it be a monarchy or some other ruling body, was not significant; what mattered was whether it was accepted and officially sanctioned by the people. If that were indeed the case, then that ruling body should be granted full authority to make binding decisions on all matters and without question.

The opening paragraph and first few sections reflect clear support for the English monarchy and its right to continue ruling the North American colony. Although Locke was raised in an environment that was supportive of parliamentary rule, he had come to be sympathetic to the royalist position while at school, and many of his early writings suggest his support of the monarchy. Likewise, the Lords Proprietors, who had commissioned the draft, were undoubtedly loyal to King Charles II, who had initially granted them the land.

In addition to requiring general allegiance to the English monarchy, the Constitutions clearly establish the Lords Proprietors as having ultimate control over governing the colony. Sections 28 and 29 established positions such as constables, chief justices, and treasurers that could only be held by the Lords Proprietors and caziques and landgraves, who were Carolina nobility chosen by Proprietors and given these titled positions that existed only in colonial America. They likewise had perpetual control over a significant portion of the land in the colony: One-fifth belonged to the Proprietors, another fifth to hereditary nobility, and the remaining three-fifths were to be split among the colonists, “so that in setting out and planting the lands, the balance of the government may be preserved.” However, it is unclear whether this “balance” was to keep the government in control or to keep the government from becoming out of control.

Much to the displeasure of the colonists, the proposed Constitutions not only granted significant authority to people who were still living comfortably back in England, it also ensured that their families would continue to rule the colony from afar, since proprietorship and the titles of cazique and landgrave were hereditary. The first ten sections of the Constitutions specifically defined how the land was to be divided, who was permitted to control which land, and how land ownership was to be transferred. Because of the provisions that allowed land to be passed down to one’s heirs, settlers who were not from influential English families could have little hope or opportunity to acquire land once they reached Carolina.

The restrictions on self-governance can be further seen in the next few sections of the document, which established courts and parliaments. Section 28 established eight “supreme courts,” which were responsible for legislative and judicial activities within the colony. However, the individuals who served in these capacities were not always selected by the colonists; the Lords Proprietors again had the authority to decide who would hold these positions, and the candidates were to be chosen from a small pool of qualified individuals as described in the Constitutions. While the Fundamental Constitutions included some provisions for other colonial landowners to have a say in their representation, their collective power could be easily diluted by the decisions of ruling Proprietors back in England.

Many settlers disapproved of this heavy-handed approach, and they resented being ruled from a distance by people who could not possibly understand their daily struggles. However, based on Locke’s earlier writings, he seemed to believe that this kind of top-heavy authoritarian approach was necessary to maintain peace and stability. He suggested that diluting the power of a ruling body by creating a system of “checks and balances” simply caused confusion during times of unrest; if people did not know which of several governing bodies to obey, social and political instability could result. This is again consistent with Locke’s favoring of empirical science and observation: Locke had come of age during a period of great instability in England, which lasted throughout most of his life. Much of this instability came as a result of constantly shifting loyalty between the Parliament and the monarchy, so it is not surprising that he might have surmised from his observations that when people are given a choice of which leader to follow, there will inevitably be conflict and unrest.

One particularly interesting feature that appears in the Constitutions is section 109, which states that “no person whatsoever shall disturb, molest, or persecute another for his speculative opinions in religion, or his way of worship.” This was a fairly radical form of religious freedom for the seventeenth century. Much blood had been spilled over England’s right to dictate a specific religion for all subjects to follow and precisely how worship was to be carried out. Religion fueled many of the armed conflicts during Locke’s lifetime, especially with respect to preventing Catholic monarchs from gaining power and reestablishing Catholicism as the official religion. Guaranteeing religious tolerance was therefore quite a radical idea and contributed to Carolina becoming a sanctuary for a range of denominations, including Quakers, Presbyterians, and Huguenots (French Protestants).

Many in Locke’s time believed that the government had an absolute right to regulate any aspect of religion that was, as some have put it, “necessary for salvation.” For example, if the Bible explicitly stated that regular weekly attendance at church services was necessary for salvation, then the government had the right to pass a law requiring such attendance. But Locke also believed that the government had a right to legislate matters that were “incidental” to religion, such as safety codes for church buildings. He reasoned that if the details of these matters did not directly affect salvation, no one could argue that freedom of religion granted them the right to make their own decision. This line of reasoning may have been another manifestation of Locke’s belief that liberty and stability cannot coexist: If too many issues can be removed from government regulation because they are tangentially related to religious practice, then the government will have lost control of its people and chaos will ensue. During Locke’s tenure at Christ Church College, he witnessed many heated disagreements about mundane matters such as what type of clothes should be worn during services. Given this, it is not surprising that Locke might favor government-imposed uniformity in seemingly trivial religious matters for the sake of keeping the peace.

Despite writing A Letter Concerning Toleration (1689), it is unclear whether Locke truly believed in religious tolerance. Different scholars have interpreted his writings in different ways, and some have suggested that Locke only preached religious tolerance because of his belief that failure to do so would cause civil unrest. Indeed, A Letter Concerning Toleration explicitly excluded atheists and Catholics from such tolerance: Atheists were excluded because Locke believed they were incapable of upholding oaths and promises since there was no belief in a God to swear upon. Catholics were excluded because they recognized the Pope and the Vatican as their spiritual governor, and their loyalty to their own country would therefore always be divided. Since these behaviors and beliefs would jeopardize the stability that Locke so highly valued, he thought they could not be tolerated.

Unfortunately, the professed religious tolerance found in section 109 is explicitly denied to “Negro slaves” in section 110. While Locke seemed to oppose slavery in some of his writings, critics have noted that a portion of his wealth was derived from investments in slave-trading companies, and many scholars therefore question his stance on this issue. Provisions such as this were common in early colonial documents and beyond, with slavery continuing as a common practice, especially in the agriculturally based southern colonies, for generations to come.

No one is sure how much of the Constitutions can be attributed directly to Locke’s opinions and guidance or how much was based on decisions made by the Lords Proprietors and the conventions of the time. While many of the provisions in the Constitutions seem to fit with the beliefs Locke expressed in his other writings, he was ultimately creating the document at the behest of Lord Ashbury-Cooper and the seven other Lords Proprietors of the Carolinas. All parties involved in the drafting had a vested interest in ensuring England’s continued control over the area, but it seems likely that Locke’s combination of political theory and empirical observations about human behavior influenced his drafting of the document, and although it would be revised numerous times over the course of the next several years and ultimately was never ratified, some of its most radical provisions of the time, such as religious tolerance and freedom from double-prosecution for the same crime, went on to become a part of the US Constitution.

The Fundamental Constitutions of Carolina was a draft of governing documents for the English colony of Carolina. However, it was unpopular with the settlers, particularly because it granted so much power to the Lords Proprietors (the actual land owners and authoritative governing body), who continued to live in England. The Constitutions were never ratified by the assembly that had already been created in Carolina by the earlier charter, and it therefore never officially took effect. However, it is significant because some of its provisions influenced later documents enacted by the Carolina government (which later split into northern and southern territories) and eventually the US Constitution.

Bibliography

Locke, John. An Essay Concerning Human Understanding. Ed. R. S. Woodhouse. New York: Penguin, 1997. Print.

---. Political Writings of John Locke. Ed. David Wootton. Indianapolis: Hackett, 2003. Print.

---. John Locke’s Two Treatises of Government: New Interpretations. Ed. Edward J. Harpham. Lawrence: UP of Kansas, 1992. Print.