Academic journal article Vanderbilt Law Review

Perpetuities and the Genius of a Free State

Academic journal article Vanderbilt Law Review

Perpetuities and the Genius of a Free State

Article excerpt

Commentary on Steven J. Horowitz & Robert H. Sitkoff, Unconstitutional Perpetual Trusts* 1

I. Introduction

Legal history, like all history, is inevitably a speculative affair. No one can be sure what the editors of Justinian's Digest might have excised from long-lost works of classical Roman law; nor can one know for certain what went through the minds of certain justices of the U.S. Supreme Court in the mid-twentieth century when they formed and reformed their views on Roosevelt's New Deal. Of course, scholars can try to chip away at this uncertainty: great progress can be made through educated guesses and learned theories. But certainty about the past is reserved for those who lived in it.

What is true for history in general is true for the history of state constitutional prohibitions of perpetuities, and in particular for the curious prohibition in the 1776 North Carolina Constitution and Declaration of Rights. The North Carolina prohibition is particularly important because it came first, and its language influenced later state constitutions.2 As Horowitz and Sitkoff demonstrate in their Article, many good reasons can be offered for the provision.3 It is nevertheless a curious prohibition, because it is absent from the constitutions of the twelve other original states. Why did this provision emerge only in North Carolina, and not in Virginia, Massachusetts, Pennsylvania, or any of the other "free states" that together rose up against their colonial masters?

This Comment will suggest a possible answer to that question. Although the problems with perpetuities were well known to learned inhabitants of all the newly independent American states, those problems were particularly salient in North Carolina in 1776 due to that colony's unique history as a former proprietary colony. King Charles II created the original province of Carolina to reward eight men who had offered vital assistance while he was in exile.4 The decision by the heir of one of these original Lords Proprietors not to sell his share back to the British Crown gave rise to specific grievances in North Carolina-grievances that did not exist in the other twelve former colonies.5 Moreover, North Carolina was unique in witnessing a violent confrontation between the colonial authorities and backcountry farmers that stemmed, in part, from those grievances.6

The peculiar case of the Earl Granville and assorted problems in his Granville District shifted the problem of perpetuities from the periphery to the center of North Carolina politics in the late eighteenth century, and thus warranted an explicit mention of perpetuities in the 1776 North Carolina Constitution and Declaration of Rights. For the framers of that document, the social ills caused by tying up land indefinitely in the hands of the few were of paramount importance, and had to be addressed to build a successful coalition for independence. This Comment first discusses the political and social history of the province of North Carolina, focusing in particular on the Lords Proprietors and Earl Granville. The Comment then addresses how that history likely impacted the 1776 Constitution and Declaration of Rights, which created a conservative system of government despite radical instructions from some backcountry counties, and finally offers a few concluding thoughts about the aspirations of many North Carolina patriots at the dawn of independence.

II. Politics and Society in Colonial North Carolina

A. The Lords Proprietors

The legal entity now known as the State of North Carolina traces its origins to the restoration of the monarchy following the English Civil War. After returning to England as king in 1660, Charles II rewarded his supporters with land, titles, and other benefits. Among those singled out for particular favor were the Lords Proprietors, eight men to whom Charles granted an immense tract of land in North America named Carolina in his honor.7 These men, most of whom had no knowledge of America, included Edward Hyde, First Earl of Clarendon and Lord Chancellor; George Monck, First Duke of Albemarle, a general who switched to the royalist side at a crucial moment in the war; and Sir George Carteret, a naval officer who sheltered exiled members of the royal family at his home on the Isle of Jersey. …

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