USA > South Carolina > The history of South Carolina under the proprietary government, 1670-1719, V.1 > Part 19
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"We are unwilling Mr. Speaker to believe that address had due and mature consideration in the house, being unable to comprehend those double locks and bars viz. : indemnity from and confirmation of all the judicial proceedings that past in the last government."
In the same confused manner he went on to say that he could not imagine the meaning " of the two fortifications" i.e. indemnity and confirmation -
" For certainly on the part of any of the activist or cruelists persons in the last government, neither lock nor bar will be needful; they need do no more than stand in the open street with the gracious con- cession in their hands, which being shown, most like Medusa's head kill all the opponents that behold it. And how far then an act of in- demnity will shroud those whose properest interest it will be to seek it by this fatal turn of the tables, or how or where they will obtain it we know not; but do guess you weil know (your last demand being granted) it must be on the part of those who were the eminentest sufferers in the last government to beg it to secure their all ready half-cut throats from the other slash ; for our part we cannot possibly see what can be ascribed to us (whose own throats by the way must be exposed among the rest) but by a mistaken act of mercy to con- firm, may heighten all the cruelties of the last government ! Is this to be the way to establish peace and safety on either part. Mr. Speaker we must own we understand it not."
The Assembly replied, explaining their address, a mis- understanding of which they supposed had caused his Honor's "strange style." They repeated their request. 1 Hist. Sketches of So. Ca. (Rivers), 162.
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Ludwell, on his part, offered an act in accordance with the instructions he had received. The Assembly would accept this only with alterations, and he could not accede to their alterations, but proposed that they should accept the indemnity as from him and the deputies for what it was worth, and prepare on their part a representation of their grievances to the Proprietors. His indemnity was unanimously declined ; but a statement of their grievances was prepared by the Assembly. This paper, which was signed by Jonathan Amory. Speaker, presents very clearly the issue between the Proprietors and the colo- nists.1 (1) The first grievance stated was in regard to the form of conveyancing of land-all the Proprietors had not agreed to the same form, and the latest form, i.e. that by indenture instead of simple patent, was not satis- factory to the people. (2) The Receiver of Rents had not been commissioned by all of the Proprietors, so there was no one authorized to give a full acquittance and dis- charge to the purchasers and tenants. (3) That the offices of Sheriff and Judge of Pleas were lodged in one and the same person. (4) That although by the charter the power of erecting courts was in the Proprietors, yet the courts ought to be regulated by laws made by the assent of the people. (5) That the public officers were allowed to take much greater fees than were allowed by act of Parliament in England for the same and like services. (6) That the representatives or delegates of the people were too few in the Assembly, and that the people were not allowed to determine the number of their delegates according to the King's most gracious charter. (7) They objected to the two Palatine courts-one in England and one in Carolina. They complained that one made void what the other enacted - thus of late several 1 Hist. Sketches of So. Ca. (Rivers), Appendix, 433-435.
P
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acts of the Assembly had been repealed by the Palatine Court in England, which had been ratified by the Palatine Court in Carolina. That their Lordships' deputies in Car- olina should be fully empowered to give their assent to laws and acts by the people. (8) That the Palatine Court in Carolina assumed to put in force such English laws as they deemed adapted to the province; but the Assembly conceived that either such laws were valid of their own force, or could only be made so by an act of Assembly. (9) That inferior courts had taken upon themselves to adjudge and determine the power of Assem- bly or the validity of acts made by them and of matters and things relating to the House of Commons. This the Assembly conceived to be without the jurisdiction of such courts: and only inquirable into and determinable by the next succeeding General Assembly. (10) The setting up of martial law (except in cases of rebellion, tumult. sedition, or invasion) they conceived not warranted by the King's charter. (11) They objected to the taking of bonds or writings obligatory not authorized by law. (12) They represented the want of a competent number of commoners to represent them in Council. (13) They complained of the refusal of an act of indemnity and confirmation till their Lordships' pleasure should be known. (14) The last elause of this presentment, which was added in Sep- tember. 1693, complains of a grievance which was to out- last the Proprietary, and to continue under the Royal Government until that too was overthrown. This was the requirement that no important measure was allowed to be put in force until their Lordships' consent could be ob- tained from England, which could never be in less than a year, and which in fact often delaved measures for two years ; so that it sometimes happened that the occasion or reason for the enactments had passed before they were acted upon in England.
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This paper is a most interesting one, presenting as it does probably the first instance of a petition, or Bill of Rights, drawn in America. It is the more so, too, because it is one based upon rights claimed under a written con- stitution. It is a presentation of the rights claimed by the people under the letter of the charter of the province. -
The objections presented by it to the form of convey- ances presented by the Proprietors ; to the want of proper authority in the Receiver of Rents; to the improper exac- tion of fees by public officers ; to the requirement of bonds not authorized by law, - were matters which, though of no small importance to the people, were, nevertheless, in the nature of temporary inconveniences, abuses rather of the law itself than of its authority. The vesting in the same persons of the judicial and executive functions of Judge and Sheriff. though doubtless most objectionable, was still more a matter of convenience than of constitutional right, the remedy for which properly lay in the sound judgment of the lawmaking power wherever that was reposed. The demand for indemnity for acts done under Sothell's administration, though just and reasonable, was a matter of personal and temporary character. But the other com- plaints were fundamental and involved the prerogatives of the Proprietors on the one hand, and of the rights and liberties of the people on the other. These objections extended not only to what the Proprietors prescribed by their constitutions and instructions; but to their right to make any such prescription without the assent of the peo- ple. It was a far-reaching demand which the Assembly made when it claimed that though by the charter the Pro- prietors were authorized to erect courts, yet the jurisdic- tion of the courts and the laws regulating them could only be made with the assent of the people. The power to regulate and control the courts is the power to prescribe
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the law. For of what use was the provision of the charter insuring to the people that no laws could be made without their assent and approbation, if the Proprietors could with- out such assent set up courts to pass upon the validity of laws and to construe them ? So. too, they denied the right of the Proprietors to prescribe the number of the repre- sentatives of the people without consultation with them. They objected to the two Palatine courts, one in Eng- land and one in America. The charter provided for a government of the province in America. It did not provide for one in England. The Assembly well argued that if the laws of England were applicable to the prov- ince, they were so proprio vigore and needed not the sanction of the Palatine Court: but if they were not ap- plicable by their own inherent force, they could only be made so by the act of the Assembly. It is curious to observe that among the grievances of which the Assembly complain is that inferior courts had taken upon them- selves to adjudge and determine the power of the As- sembly. and of the validity of acts made by them. So it appears that at this early day the courts of Carolina were assuming to pass upon the constitutionality of laws. They were, it is true, now doing so in the interest of the Proprietors as against that of the people ; but whatever its present purpose and inspiration, it was an important step taken, though unconsciously. in the direction of lib- erty, when courts began to inquire into the authority of the laws themselves. Because, however its immediate pur- pose was to condemn the Assembly which refused to act with Colleton, the people at that time failed to recognize the advantage which would accrue to them by such a pre- cedent.1 The Assembly well protested against the great
The questions as to the origin of the judicial power exercised by the courts of the United States - State and Federal - to declare void uncon-
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inconvenience and wrong of postponing the enactment of measures until leave could be obtained from England. We shall see the same cause operating most disastrously under the Royal Government, preventing the establish- ment of courts to meet the necessities of the increasing population.
It happened that while the Assembly was engaged in preparing this paper in Carolina, the Proprietors were con- sidering the same subject in England, but with no purpose to grant the desired relief. On the 8th of November, 1692, they write to Ludwell withdrawing the power they had the year before given him to allow such legislation as might be thought necessary for the better government of the province, to continue in force for two years with the assent of himself and of the deputies. They repeal and make void all changes in the laws relating to the courts, magis- trates, sheriffs, juries, or elections made under Sothell, and direct that all bills relating to such matters and consented to by the Governor and deputies should be transmitted to them, to be considered and passed upon in England before
stitutional acts of the legislature, and as to the first instances in which it was exercised, have of late given rise to much discussion. The earliest instances hitherto adduced having been one by a court in Rhode Island, which held the " forcing act" unconstitutional in 1786; and one by a court in North Carolina, which set aside an act affecting trials by jury in 1787, and the famous case of Marbury v. Madison, Sup. Ct. U. S., in 1803. See " Origin and Scope of the American Doctrine of Constitutional Law," Professor Thayer, Harvard Law Review, October, 1893; " An Essay on Judicial Power and Unconstitutional Legislation." Brinton Coxe. Am. Law Review, March and April, 1885; MeMaster's Hist. of the People. of the U. S., vol. I. 337-339; The Nation, vol. LVII, Nos. 1474, 1475, 1477, 1484, 1506. But here we find the colonists in South Carolina objecting to the exercise of such a power by inferior courts under the Proprietary Government a hundred years before. It is to be regretted that we have no record of these courts. nor do we even know how they were constituted and who presided in them. Indeed, we have no record that there was a professional lawyer in the colony at the time.
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published as law in Carolina.1 They, however, sent out under their " great seal " a general pardon to the people of Carolina (James Moore and Robert Daniel being ex- cepted) for all crimes and offences "committed prior to the publication of Ludwell's commission in hopes that in time to come it may beget a firm resolution to become strict observers of the laws." Unhappily, there was an unaccountable delay in announcing this pardon to the people.2
The issues were thus becoming more and more sharply defined between the Proprietors and the colonists; and in the struggle the colonists were steadily gaining. They had overthrown and banished one Governor - Colleton. They had compelled the Proprietors to recognize Sothell and to allow his administration, thus setting aside Smith. whom the Proprietors had nominated as Governor, and had maintained Sothell until his rapacity and oppression had turned them against him. They were now managing Ludwell. notwithstanding his instructions from their Lord- ships.
Though during the next thirteen years we shall find further attempts to impose the Fundamental Constitutions upon the people, the Proprietors now began to recognize that they could never be enforced, and this they secretly admitted to Ludwell. They privately wrote to him that as Mathews, who claimed to be empowered by the people, assured them that they would not own those laws. they had made his instructions as Governor " suitable to our charter." A still greater concession was rendered neces- sary when Ludwell's Parliament appointed a committee to frame a "system of government." This, indeed, the
1 Hist. Sketches of So. Ca. ( Rivers), AAppendix, 435, 436
2 Hist. Sketches of So. Ca. (Rivers), 163; Coll. Hist. Soc. of So. Ca., vol. 1, 130.
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Proprietors appear to have accepted as a formal rejection of the Constitutions and wrote to Ludwell that as the people had rejected " the excellent system of Locke," they had therefore "thought it best both for them and for us to govern by all the power of the charter, and will part with no power till the people are disposed to be more orderly." This reluctance and reservation, however, were expressed to Ludwell alone, while publicly it was an- nounced. " that as the people have declared they would rather be governed by the powers granted by the charters without regard to the Fundamental Constitutions it will be for the quiet and the protection of the well disposed to grant their requests." 1
In the meanwhile the Parliament, i.e. the Governor. Coun- cil, and Assembly, in October, 1692. had passed several important measures. Three of these related to the courts. One empowered magistrates, justices, and others to exe- cute the habeas corpus act of Charles II; another pro- vided for the drawing of jurymen in all causes, civil and criminal ; and another for the trial of small and mean causes. Disregarding the provisions of the Fundamental Constitutions as to the qualification of voters for members of the Assembly, an act was passed giving the privilege of voting to any person otherwise qualified who was worth ten pounds, without reference to the time of his residence in the colony.
In regard to the habeas corpus acts, the Proprietors assumed that all laws of England applied to the colonies, and held that it was not necessary, therefore, to reenact that famous statute in their provinces. They disallowed the act purporting to do so. The doctrine that the laws of England were not of force in the colony they declared erroneous. " By those gentlemen's permission that so say,"
1 Hist. Sketches of So. Ca. (Rivers), 164.
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wrote the Proprietors, " it is expressed in our grants from the crown that the inhabitants of Carolina shall be of the King's allegiance : which makes them subject to the laws of England."! But the subject was not disposed of so easily. It was one full of difficulty. The question had been one of great doubt, and puzzled the lawyers of England.
The theory of the law was that where an uninhabited country was discovered and planted by English subjects, all laws in force at home became at once applicable ; but in the case of an inhabited country conquered, not until declared so by the conqueror.2 The trouble was to deter- mine as to which category the English dominions in America belonged. Hilton. Sayle. and Sandford had. it is true, each sailed upon voyages of " discovery"; but the country had been discovered long before, and, indeed, par- tial attempts had been made to settle it. The Spaniards claimed Carolina as part of Florida. upon which they had an established settlement at St. Augustine. Great Britain could scarcely claim, therefore, by virtue of discovery. Could she do so as of conquest? And if so, conquest of whom - Spaniards or Indians? Surely not of the Spaniards, for peace nominally reigned at the time of the grant of charter by King Charles II. Could she claim
1 Hist. Sketches (Rivers), 161.
2 Blankard v. Galdy, Salkeld, 411; Rex v. Vaughn, Burrows's Re- ports, vol. IV. 2500. This most important and delicate question was to remain a subject of constant controversy, not only in the American colo- nies, in the Islands, and on the Continent, but in Ireland as well. It lay at the root of the differences between American colonies and the mother country in regard to the navigation laws and the stamp acts, and the news of the surrender of Lool Cornwallis found Flood and Grattan engaged in the Irish Parliament in the old discussion as too the effect and validity of Poyning's law, which rendered Ireland amenable to English statutes. England in the Eighteenth Century (Lerky), vol. IV, 460-570 ; Leaders of Public Opinion in Ireland ( Lecky), 85.
At.
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the territory as of conquest from the Indians? The Pro- prietors were pretending, at least, to purchase the lands from them.
The question had been raised and discussed in the last year of the reign of Charles II, but had not been definitely decided.1 It was, therefore, still an open one when so dogmatically decided by the Proprietors; and from their position they were obliged ultimately to recede when, in 1712, under the administration of Craven, they allowed and approved the act adopting the common law and such statutes of England as were deemed applicable to the condition of the province. Indeed, among others, they sanctioned the adoption by the Assembly of South Caro- lina of the very act they now so wisely reproved the
colonists for passing.2 And it was well that they did so, for some years after, in a case coming from Jamaica, Lord Mansfield held that no act of Parliament made after a colony is planted is construed to extend to it without express words showing the intention of the legislature to be that it should.3 The habeas corpus act of Charles II, Shaftesbury's greatest work, by which personal liberty has been more effectually guarded in England and America than it has ever been in any other country in the world, was not enacted until thirteen years after the second charter of Carolina.
The act providing for the drawing of juries which the Proprietors disallowed is lost. It has been supposed that it was the origin of the admirable jury system which has ever since substantially prevailed in South Carolina, if not
1 Daus v. Sir Paul Pindar, Modern Reports, vol. II, 45.
" See post. Statutes of So. Ca .. vol. II. 401.
3 Rer v. Vaughn, Burroughs's Reports, vol. IV, 2500 ; Blackstone's Com. iSharswood's ed. ), vol. 1, 108, note; Jacob's Law Dictionary, title " Plantation."
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from this precise time, from some very near period.1 The first extant act upon the subject is that of 1731; 2 but this act does not purport to originate the system. It is entitled an act "confirming and establishing the ancient and ap- proved method of drawing juries by ballot." The plan was certainly, therefore, in existence prior to 1731. It has been ascribed to Thomas Smith, the Landgrave.3 By this system jurors were not selected by the sheriff, as is usu- ally done elsewhere, but the names of all the freemen in the province having been taken on small pieces of parch- ment of equal size, they were put into a ballot box and shaken so as to be thoroughly mixed ; whereupon at every court before it rose twenty-four names were drawn from the box by a boy under ten years of age; and from these names, put into another box, twelve names were drawn by another boy under the same age. The persons whose names were so drawn were summoned to appear at the next term of the court. If any were challenged, the boy continued drawing until the jury was full. By this system, the pack- ing of juries by corrupt sheriffs was rendered well-nigh impossible. The system has been modified from time to time as to the qualification of jurors and as to the manner of forming the lists ; sometimes it has been by the court, sometimes by the legislature, sometimes by specified officers or jury commissioners, but in its main features it has been preserved until this day.
The act of 1792, however, is not to be found, and its terms can only be known from the reasons assigned by the Proprietors for disallowing it; and from these it can scarcely be believed that the act disallowed contained
1 Hist. Sketches of So. Ca. (Rivers), 101. note. Hewatt speaks of the system as according to an article of the Fundamental Constitutions ( vol. I, 114), but in this he is mistaken. There is no such provision in those laws.
2 Statutes of So. Ca .. vol. III, 274.
3 Hist. Sketches of No. Ca. (Rivers), supra.
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such excellent provisions ; indeed, they strongly imply that, on the contrary, the sheriff, under its terms, could name as jurors what persons he chose. One of the ob- jections to the acts was that it required the sheriff of each county to divide all the persons of his county into sets of twelve, and to draw two papers of twelve names each for jurymen for the next court.1 This plan they thought un- reasonable and dangerous, as the sheriffs might so " divide the twelve for each paper that there might be in every paper some notorious favorers of pyrates," who could pre- vent their punishment. They disallowed the act.2
The Proprietors also disapproved the act regulating elec- tions ; not because of its violation of the Fundamental Con- stitutions. - those they, at least for the present, tacitly abandoned. - but because they alleged it was so loosely drawn that any one might be admitted to vote for members of the Assembly who was worth ten pounds, regardless of the length of his residence in the province ; indeed, it was so loose, they said, " that all the pyrates that were in the ship that had been plundering the Red Sea had been qualified to vote for representatives in Carolina." 3
These allusions by the Proprietors to pirates have been made the foundation of renewed charges against the colo- nists of Carolina for countenancing these enemies of the human race. if not of actual complicity with them. Hewatt charges that the gentleness of the government towards them and the civility with which they were treated were evidences of the licentious spirit which prevailed in the province ; that, by their money and freedom of intercourse with the people, the pirates so ingratiated themselves into public favor that it was no easy matter to bring them to trial, and dangerous to punish them as they deserved.
1 Hist. Sketches of So. Cu. ( Rivers), Appendix, 436.
2 Ibid. 3 Ibid., 437.
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The courts of law, he states, became the scene of alterca- tion and confusion ; that bold and seditious speeches were made from the bar in contempt of the Proprietors and their government : that, as no pardons could be obtained, the habeas corpus act was passed, and that hence it hap- pened that several of the pirates escaped, took up their residence in the colony, and purchased lands; and that finally the Proprietors granted an act of indemnity to all except those who had been engaged in plundering the Great Mogul, most of whom found means of making their escape out of the country.1 Ramsay, who. as usual. follows Hewatt without further investigation, amplifies the charge. " The courts of law became," he says, " the scene of alter- cation and confusion. The gold and silver of pirates en- listed in their behalf the eloquence of the first gentlemen of the bar. too many of whom held that every advantage, though at the expense of honor, justice, public good, and even truth, should be taken in favor of their clients. Hence it happened that several of the pirates escaped, purchased lands, and took up their residence in the colony."2 No foundation whatsoever can be found in the records of the time, further than the brief allusions which we have quoted, for these extraordinary charges. They are gratuitous and bear on their face their own refutation. It is not known that there was a single lawyer in the province at this time, and not probable that there could have been one who, in these stirring times in this small community, is not even mentioned. There were, therefore, no " first gentle- men of the bar" to degrade themselves as Ramsay charges. But the absurdity of the charge will more fully be appre- ciated when we remind the reader that by the law of Eng- land at that time, at the time when Hewatt wrote, at the
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