Biographical sketches of the bench and bar of South Carolina, vol. I, Part 34

Author: O'Neall, John Belton, 1793-1863
Publication date: 1859
Publisher: Charleston, S.C. : S.G. Courtenay & Co.
Number of Pages: 484


USA > South Carolina > Biographical sketches of the bench and bar of South Carolina, vol. I > Part 34


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given. The vessel sailed that very evening, with the same cargo she had brought with her, and South Carolina thus NUL- LIFIED the Stamp Act, forever, within her borders."


Extract from the minutes of the Court of Common Pleas, held at Charlestown, in the Province of South Carolina, be- fore the Honorable Charles Shinner,* Chief Justice of our Lord the King, on the 12th November, in the sixth year of the reign of our Sovereign Lord, George the Third, by the grace of God, of Great Britain, France and Ireland, King Defender of the Faith, &c., and in the year of our Lord, 1765. Present- the Chief Justice.


NOVEMBER 13, 1765.


" Whereas his Honor the Chief Justice, and other officers of this Court, have come to the knowledge of an Act of Parlia- ment, passed in the fifth year of his present Majesty's reign, imposing stamp duties, and enjoining the use of stamped papers, in a great variety of cases, particularly in law proceed- ings, throughout all the British American Dominions, which Act was to have taken place, on the first of this instant, No- vember. And, whereas the Judges in the several Courts are, by the said Act, required to make such orders, and to do all such other matters and things as shall be necessary for secur- ing of the said duties, and also all counsellors, clerks, officers, attorneys, or other persons, to whom it shall appertain, or who shall be employed or interested in the colonies or plantations, in entering, filing, recording, enrolling, writing, engrossing or printing, or in causing to be entered, filed, recorded, enrolled, engrossed, written, or printed, any matter or thing charged with a stamp duty, are enjoined, under very heavy penalties and disabilities, to pay a strict obedience and conformity to the directions of the said Act: And, whereas the officers ap- pointed under the said Act, inspector of the said duties and distributors of the stamped papers for this province, have


* In 1 Statutes at Large this name is printed Skinner, but the original record, which we give above, has it Shinner, and so has Drayton, in his Memoirs.


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notified, to his Honor the Lieutenant-Governor, that they de- cline acting in their several and respective stations, until his Majesty's pleasure, touching the carrying the said Act into execution shall be further made known, by which means no stamped papers are to be had: The Court therefore is of opinion that no business can be proceeded upon until such stamped paper can be procured."


February Term, 1766.


Rawlins Lowndes, Benjamin Smith, and Daniel D'Oyley, Esqrs., came into Court, and produced and presented, to his Honor the Chief Justice, his Majesty's commissions, appoint- ing them Assistant Judges or Justices of the Court of General Sessions and Justices of the Court of Common Pleas, which, being read in open Court, were ordered to be recorded; where- upon the said Justices took their seats.


The Court met according to adjournment.


MARCH 4, 1766.


Present-The Chief Justice, Mr. Justice Lowndes, Mr. Jus- tice Smith, Mr. Justice D'Oyley.


James Jordan vs. Joseph Law .- Mr. Bee, attorney for the plaintiff, having yesterday informed the Court that the rule to plead, taken out in this cause, had been served upon Mr. Rutledge, attorney for the defendant, and that the time for pleading was long ago expired, which being acknowledged by Mr. Rutledge, Mr. Bee moved the Court for judgment, to which Mr. Rutledge said he had no manner of objection. Mr. Manigault, of counsel with the plaintiff, then spoke very fully in support of the motion, as did also Mr. Pinckney, Mr. Rut- ledge, and Mr. Parsons, who, though not concerned for the plaintiff in this particular cause, said they were concerned as counsel in a great variety of causes of a similar nature. The motion was opposed by his Majesty's Attorney-General [Eger- ton Leigh] on account of the want of stamped papers, which still subsisted in this province; and, the matter being fully argued on both sides, the Court, having taken until this after-


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noon to consider of the motion, were unanimously of opinion, that, under the particular circumstances which they are now in, and the steps which have been taken by the different pro- vinces in America to obtain a repeal of the Stamp Act, no positive determination be given upon the point, but that the same be postponed until the next return day.


Mr. Parsons presented to the Court a petition from several of the merchants, traders, freeholders, and other inhabitants of this province, which was read and the consideration thereof postponed until the next return day.


The Court met according to adjournment.


APRIL 1, 1766.


Present-The Chief Justice, Mr. Justice Pringle, Mr. Jus- tice Lowndes, Mr. Justice Smith, Mr. Justice D'Oyley.


James Jordan vs. Joseph Law .- Mr. Bee, attorney for the plaintiff, having moved the Court for judgment, upon the motion formerly made by him in this cause, the consideration of which had been postponed to this day, their Honors the Assistant Judges, by Mr. Justice Lowndes, unanimously de- clared it, as their opinion, for which they gave their reasons at large, that judgment be ordered for the plaintiff, agreeably to the motion, in the usual manner, as has heretofore been done, no stamp being to be had; and, in answer to the peti- tion, presented and read at the last adjournment day, declared it, as their further opinion, that the process of this Court be issued out in the usual manner to any person, who shall re- quire and apply for the same, that there may no longer be a complaint that justice is either denied or delayed ; when his Honor the Chief Justice, at large, delivered it as his opinion, (which he desired might be entered on record,) that the Court ought not to be opened, nor business go on, until the Act of Parliament, imposing stamp duties in his Majesty's American dominions, could be complied with. Dougal Campbell, Esq., Clerk of this Court, being then called upon to do his duty and enter the order for judgment, humbly begged leave to decline paying obedience to the directions of this Court, at the same time offering some reasons for his non-compliance, which being disallowed of, William Mason, Esq., was, by the Court,


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appointed to act as Clerk thereof, (until the Assistant Judges have an opportunity to represent the conduct of the said Dougal Campbell to his Honor the Lieutenant-Governor,) and directed him to enter the order for judgment, which was done accordingly; the said Dougal Campbell, from particular tenderness and indulgence, on account of his hitherto dutiful and diligent behavior in office, not being proceeded against with that strictness, which his disobedience upon the present occasion merited-a piece of indulgence which this Court will, by no means, hereafter suffer to be drawn into a prece- dent.


His Honor the Chief Justice's Reasons against opening the Court.


" It is no part of my business to examine into the merits of the late Statute, which has caused so great commotion in these parts ; or to moot a question, which has, probably, undergone the determination of the British Parliament: I shall, there- fore, confine my observations to the application lately made to this Court, by Mr. Bee, in the case of Jordan vs. Law, which I intend to be my answer also, to the Merchants' Peti- tion.


The apparent tendency of the motion is, that business may be carried on as usual in this Court; and the arguments, in support thereof, are briefly these:


That it is against Magna Charta to delay or deny justice to the subject. Again, that the law requires nothing impossible, and that, by the Stamp Distributor's refusal to act, no person can procure stamp papers.


In order to support this last fact, the Lieutenant-Governor's certificate, under his hand and seal at arms, is produced as evidence, not to be disputed. The gentlemen have called to their assistance a few common-place maxims, which they have wrested to their purpose; they strained hard for it, and in my opinion, have partially applied 'em.


It is notorious that the stamp officers, as well as the stamp papers, are arrived in his province ; the evidence of my senses has long convinced me of the certainty of the former fact, and


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the Governor's official declaration, by advice of Council, that the papers were lodged in Fort Johnson, leave me no room to doubt the latter. But (say they) the officers refuse to act, and hence arises the impossibility, which is urged as a substantial reason why the circulation of the papers has never taken place. This may be the truth, but it is not the whole truth. I am (unfortunately) too well warranted in saying, that other causes have concurred to prevent the circulation and use of them.


If we refer ourselves for arguments to maxims of law, we shall find them uniform, consistent and compact; they are like an embattled host, each moving to one general good, under the same principles and for the same extensive ends ; instead of opposing they add to each other's strength, and become firm, by an indissoluble union.


The sole question in this case is (as the Attorney- General insisted,) whether the impossibility so much urged be a legal one, or, in other words, such as can be properly ranked under any of the maxims cited for the purpose.


The law declares that no man shall avail himself of his own wrong. The like law pronounces that no man shall carve out his own remedy, and it is a principle of equal notoriety that the laws of England cannot be changed but by authority of Parliament. From these grounds, I reasonably infer that an impossibility must not be created by wrong; that, if the subject be aggrieved by law, he must be redressed by law, and that obedience is due to every Statute from those to whom it extends, until the same authority which made the Act, shall graciously see fit to alter or annul it.


If the rules and maxims of the Common Law are allowed to determine in any case, they must be so construed that they shall not interfere with or oppose each other; for it is absurd to assert " that a man shall not carve out his own remedy," and yet shall be allowed, under a different rule, to prevent, for his own private convenience, the due operation of the law. It is a principle of the Common Law that Statutes shall not bind the Plantations, unless specially extended to them ; but can there remain a doubt what part a Judge ought to act,


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where the law is plain and obvious ? Has he a discretionary power to receive one Statute as the rule of his conduct in . judgment, and reject another? Do the books of Jurisprudence authorize a Judge to explain or to give law ?- and is our con- stitution unsettled at this day in so important and interesting a concern ?


I am obliged, by the tenor of my oath, to take judicial notice of all public Acts, and it is a well-known rule, in evidence, that Juries, as well as Judges, must take notice of a general Act of Parliament without being pleaded, and Lord Chief Baron Gilbert is express in this particular, for (says his Lord- 'ship,) Judges are obliged, by their oaths, to judge all matters coming before them Secundum Leges et Consuetudines Angliæ, according to the laws and customs of England,) and, therefore, they can't be obliged, ex-officio, to take notice of a particular law, because it is not Lex Angliæ, a law relating to the whole kingdom. But granting, for argument sake, that the impos- sibility of obtaining stamps did not arise from our own act. The evidence which this Court is possessed of, as a ground- work for our proceeding in direct opposition to the law, is, in fact, as much a nullity as any act in this Court would be without Stamp Paper.


I cannot better explain the duty we impliedly owe to the laws of Great Britain, than by adopting the words of Lord Chancellor Hardwicke, as taken from Atkins' Reports, page 544. Plantations were originally members of England, and governed by the laws of England, and persons went out origi- nally subject to the laws of England, unless in some regu- lations and customs, which they have a power of making. Permit me to observe, though not urged on the debate, that to assert that either House of Parliament has a legislative power, without the King, subjects the speaker to the guilt of a Præmunire, and it may not be an improper caution to reflect, what censure those persons may incur, who either actually or virtually deny the Legislative power of King, Lords and Com- mons of Great Britain over the colonies in America. I am an utter enemy to innovations, and, if there be a doubt, it is most advisable to err on the safe side, as it is more prudent to bear a


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temporary evil than to transgress, in any instance, against a fundamental rule of law.


I cannot give my consent or countenance to open this Court in defiance of law. I revere our happy Constitution ; it is a fair and noble structure, raised at the expense of our ancestors' blood and treasure, and I will not deface the stately fabric, in which stands the temple of true liberty, where many saints and confessors, and a whole army of martyrs have, for centuries past, been offering up glorious incense.


I am sorry to differ with my brethren, the Judges, but they will excuse me, because I do it upon principle.


Upon the whole, I do protest (as far as my power extends), against permitting business to go on in this Court upon com- mon paper, and against all officers, ministers, counsellors, attorneys, and suitors, who shall be concerned in the same, and I do strictly forbid all persons, at their peril, to test any writ or writs, process or processors, in my name.


Delivered in open Court, the first day of April, 1766.


CHAS. SHINNER."


The Court adjourned to second Tuesday, in May next, at 9 o'clock in the forenoon.


May Term, 1766.


The Court met according to adjournment, 13th May, 1766 Present-The Chief Justice, Mr. Justice Pringle, Mr. Justice Smith, Mr. Justice Lowndes, Mr. Justice D'Oyley.


The Court, by Mr. Justice Pringle, ordered that the Provost Marshal be directed to return the Writ of Venire, when the Clerk humbly informed the Court that none had been issued. The reasons, which his Honor the Chief Justice had given, on the return day, against the opening the Court, were then ordered to be read, which being done, Mr. Justice Lowndes proceeded to deliver the sentiments of the Court, touching the said reasons in the following words, viz:


" His Honor the Chief Justice, having been pleased to order the opinion he delivered, on the first day of April last, con-


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taining his reasons for being against the motion, the Court took till that day to deliberate upon, to be recorded, and some .expressions therein made use of, seeming indirectly to tax the Judges, who differed in opinion with his Honor, with de- nying the legislative power of King, Lords and Commons of Great Britain over the colonies in America, in the judgment they gave on that occasion, which expressions the other Judges immediately objected to, as conveying a very different idea from what the judgment they gave would authorize; and his Honor having promised that the said exceptionable words should be expunged, and it appearing notwithstanding that they are not, but are made a record of Court, the rest of the Judges find themselves indispensably obliged to record, also, their adjudication on that matter, as a vindication of their conduct from any designed or implied insinuation, not sup- ported by fact. The Assistant Judges cannot avoid taking notice of a novel and strange conclusion in the Chief Justice's opinion, wherein he would, as far as his power extends, frus- trate and defeat the very end and intention of the Judges' appointment, by setting up the judgment of one Judge in opposition to that of the rest of the whole Bench, thereby in- verting the order of well-known judicial determination, and establishing, contrary to all usage, a precedent that the mino- rity shall conclude the majority; which would inevitably be the case, should his Honor succeed in the injunctions he has laid on all the officers and ministers of the Court, to disregard the judgment of four of the Judges, in preference to his own single opinion. If any of the books of jurisprudence, or any of the maxims of the law, alluded to by his Honor, will authorize his Honor in this attempt, the Assistant Judges will expect very explicit authorities in support thereof before they can possibly concur with the Chief Justice, or consent to ex- onerate any of the officers of this Court from the obligation of obeying the orders of the Court, always heretofore understood to be the majority of the Bench present.


The judgment, and reasons at large, of the Court, in the case of Jordan vs. Law, as delivered upon the last return day by Mr. Justice Lowndes, in the name of himself and all his brethren, the Assistant Judges, Justices of this Court, viz:


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" It is a very unusual and extraordinary thingfor the Court to hesitate, one moment, on a motion for judgment, when al the proceedings have been regularly and properly conducted. and where the defendant's attorney, whose duty it is to see that they have been so, consents and agrees to the judgment passing. The occasion then for this obstruction to the usual and general practice of the Court, is now to be considered, and whether there is any cause existing, sufficient to justify the refusal of the motion, which has ever been looked upon, not only as a motion of course, but as a matter of right.


It has been objected, by Mr. Attorney General, in opposi- tion to the motion, that the Stamp Act requires that judgments should be entered upon stamp paper ; that the Act calls upon the Judges to act agreeably to that law, and, being a public Act, the Court are obliged to take notice of it; and that the Act was properly noticed to the Court by the Governor. These, then, are the reasons, it is to be presumed, that have influ- enced the Court to delay and postpone doing any business, or issuing any process, since the first day of November last, the day the Act took its commencement.


The Stamp Act does certainly, among other things, require, that, ' for every skin or piece of vellum, or parchment, or sheet or piece of paper, on which shall be engrossed, written, or printed, any judgment, decree, sentence, or any record of nisi prius, or postea, in any Court within the colonies and planta- tions, there shall be raised, levied, collected and paid unto his Majesty, a stamp duty of four shillings.'


And another section of the Act declares, 'That, if any per- son, or persons, shall sign, ingross, write or print, or sell, or expose to sale, or cause to be signed, ingrossed, written, printed, or sold, or exposed to sale, in any of the said colonies, or plantations, or in any other part of his Majesty's domin- ions, any matter or thing for which the vellum, parchment, or paper, is hereby charged to pay any duty, before the same shall be marked, or stamped, with the marks or stamps to be provided, as aforesaid, or upon which there shall not be some stamp or mark resembling the same; or shall sign, ingross, write, print, or sell, or expose to sale, or cause to be signed, ingrossed, written, printed, or sold, or exposed to sale, any


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matter or thing upon any vellum, parchment, or paper, that shall be marked, or stamped, for any lower duty than the duty by this Act, made payable in respect thereof; every such per- son so offending, shall, for every such offence, forfeit the sum of ten pounds.' And there is another clause, which we shall have occasion to observe upon by and by, which declares ' that no matter or thing, chargeable with astamp duty, shall be evidence, unless the same be marked, or stamped, in pur- suance of the Act.' In answer to the objections, urged by Mr. Attorney, the gentleman who spoke in support of the motion for judgment, used several arguments, and produced a variety of cases, to show that cases of necessity are excepted out of Acts of Parliament; that the law does not require im- possibilities, and will excuse where there is an impossibility of doing what is required; that the stamp distributor has for- saken his office, and that consequently no stamp paper is to be had, and no provision made in the law, in case of such a contingency, that, therefore, the law will not punish the inno- cent for the default or neglect of the officer; that the great Charter of English liberties forbids that justice be delayed or denied, and the fatal consequences that would ensue, should it be in the power of an inferior officer, by his neglect or omis- sion of duty, to obstruct the administration of justice; that the King's representative, the Governor, has certified, under his hand and seal, that no stamp paper is to be had, nor has the Act been properly authenticated; that even the laws of God yield and give place to necessity; that the impossibility of performing contracts excuses the breach of them; that the Act gives no relief, in case the distributor does not act in his office, and many have been appointed without their knowledge or consent: that it is one and the same thing, in respect to the consequences, whether any distributor had been at all appointed, or being appointed refuses to act. That it is a reproach to the Parliament, to suppose they intended the sub- jects in America should be distressed for the default of an officer, and by the great inconveniences flowing from so long an interruption of justice. These are, we think, the general heads of the arguments made use of by the several gentlemen


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of the Bar, who spoke in support of the motion for judgment, notwithstanding the Stamp Act; and the Court took till this day to give their opinion.


We cannot better recapitulate what has been said upon this occasion, and show the reasons upon which the gentlemen built their arguments, than by extracting from the case of Reniger vs. Fogarsa, in Plowden's Reports, such parts as are apposite and pertinent to the present system. In our law, and all other laws, there are some things that happen, which may not be prevented by foresight, nor by any dili- gence or possible means be eschewed and avoided; and, when any such thing happens to a man, the law will not punish him for it-for the law will not punish any man but for his own default-for, if the law should punish a man for an acci- dent, which by no foresight, diligence or possibility could be avoided, it would be utterly against reason. The effusion of blood and killing a man are prohibited by common law, yet every man in his own defence may kill another. So by com- mon custom of the realm, hosts shall be charged for the goods of their guests, lost or stolen, out of their house, yet, if their house be broken by the King's enemies, and the goods stolen from thence, they shall not be chargeable. Like reason will dispense with statute law. The statute of Marl- bridge prohibits distresses from being driven out of one county into another; yet it is held that, where the Abbess of Wilton had a manor in one county, she might carry a distress taken in another county, in land holden of the said manor, into the same county where the manor was, notwithstanding the statute is in the negative, and this in respect of the incon- venience and absurdity that would otherwise follow. So we see that some cases shall be construed contrary to statutes, contrary to custom, and contrary to the ordinary course of the common law, and this for the necessity of the matter, and, therefore, reason maintains that such persons as do so, shall not be wrong doers. When laws or statutes are made, there are certain things, which are exempted and excepted out of the provision of the same, by the law of reason, although they are not expressly excepted. The breaking of prison is


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felony in the prisoner, by 1st Edward II; yet, if the prison be on fire, and they who are in break the prison to save their lives, this shall be excused by the law of reason, yet the words of the statute are against it. So where Jurors, who were sworn upon an issue, for fear of a great tempest, departed and dispersed themselves, it was held that they should not be amerced, and that their verdict afterwards was good in regard to the necessity or the occasion, but otherwise they should have been grievously punished.


The ancient fathers of the law construed such statutes ac- cording to equity and reason, although the words did not allow of it, but seemed against it; so that, in all statutes, there are some private cases excepted out of the general pro- vision, by equity of reason, in avoidance of greater mischief. In every law there are some things which, when they happen, a man may break the words of the law, therefore the words of the law of nature, of the law of the realm, and of other realms and of the law of God, also, will yield and give way to some acts and things done against the words of the same laws, and that is where the words of them are broken to avoid greater inconveniences, or through necessity, or by compul- sion, or involuntary ignorance. That necessity shall be good excuse in all laws, and that all laws give place to necessity ; for it appears from a common proverb, that necessity has no law; also, the law of God gives place to necessity, and may be broken without offence to God; and, therefore, in the old law, it was forbidden by the law of God to eat the sacred Bread, yet it appears that David, through necessity of hunger, ate the sacred Bread, and did not break the law, although he broke the words of the law, as Christ himself declares in the Gospel, because he did it for necessity ; so the Apostles of Christ, for necessity of hunger, plucked the ears of corn of other per- sons and ate them, and, although they brake the words of the Holy Scripture, which forbid them to eat other men's goods without the will of the owner, yet they did not offend thereby. From which cases we see the law of man, as well as of God, yield and give place to necessity ; thus the doc- trine of necessity is insisted upon in the case of Reniger &




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