comparatively few, in which the common law is defective, or to which it is inap. plicable. To that law those regulations may properly be considered as a supplement. A knowledge of that law should, for this reason, precede, or at least accompany the study of those regulations. To know what the common law was before the making of any statute, says my lord Coke, in his familiar but expressive manner, is the very lock and key to open the windows of the statute. To lay the statute laws before one who knows nothing of the common law, amounts frequently to much the same thing as laying every third or fourth line of a deed, before one who had never seen the residue of it. It would therefore be highly eligible, that under each head of the statute law, the common law relating to it, should be introduced and explained. This would be a useful commentary to the text of the statute law, and would at the same time form a body of the common law, reduced into a just and regular system."

Some explanation of the notes of reference may be thought necessary. It may suffice to say, that the letters, "P. L." are intended to signify the collection of public laws published by Mr. Justice Grimké; that "1 Faust and 2 Faust," means the first and second volumes of a collection of acts of assembly, published by Messrs. D. and J. J. Faust; that "Rutl. MSS." refers to a manuscript collection of acts of assembly, in two volumes, by the late Hugh Rutledge, esquire, deceased, one of the judges of the courts of equity. A collection of provincial statutes by chief justice Trott, is sometimes referred to by the title of "Trott's Laws." The acts of assembly are pointed to by the letters, "A. A." and the year in which each of them was enacted. If the legislature was in session twice in any year, the different sessions are designated by the month. The English statutes are referred to by the year of our Lord, and the reign of the king in which they were respectively passed, and also by the chapter of acts of parliament-For example; "A. D. 1286. St. 13 Ed. 1. c. 1." signifies the first chapter of statutes passed in the year of our Lord 1286, and in the thirteenth year of the reign of Edward the first. The Institutes of lord chief justice Coke, in four volumes, are referred to thus: "1 Inst. 2 Inst." &c. The first volume is generally thus quoted, "Co. Litt." being a commen tary on a treatise written by judge Littleton in the reign of Henry the fourth. The Reports of Lord Coke are meant by "1 Co. 2 Co." &c. “1 & 2 Hal. P. C." means the first and second volumes of lord chief justice Hale's history of pleas of the erown-"1 & 2 Hawk. P. C." means the first and second volumes of pleas of the crown by Serjeant Hawkins. "Fost. C. L." signifies discourses, &c. by sir Michael Foster, concerning crown law, or the criminal law. Judge Blackstone's Commentaries are meant by "1 Bl. Com. 2 Bl. Com." &c. It would be too tedious to notice the other references to books of the law.

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With respect to the plan of the Digest, the two first volumes contain all the English statutes and acts of assembly of a general permanent nature, or operation, which may be considered of force at this time, and that have been enacted, or adopted, from the earliest period of our civil government till the close of the year 1813, also the constitutions of the state, and of the United States, together with such acts of the Congress of the United States, now in force, as more immediately concern the people, and particularly the public functionaries of the state.

These laws are digested under various heads or titles, and arranged alphabetical ly; and at the end of the second volume is added a copious index of the principal matters contained in both volumes.

The third volume contains, under various titles, in alphabetical order, all the acts of assembly, now of force, not contained in the two first volumes, being of a less general and permanent nature, with a separate index.

Owing to the remote residence of the compiler from the place where the work has been printed, and other causes, sundry omissions and mistakes have occurred, which have been since discovered. To supply the one, and correct the other, an appendix has been added; and also a table of errors, &c. is prefixed to each volume.

THE laws of a country form the most instructive portion of its history; and if (as Montesquieu observes) laws must be cleared up by history, and history by laws, it would be a useful as well as an interesting subject of enquiry, to take a historical review of our juridical history, and trace the rise, progress, and remarkable changes which have happened in the laws, at different periods, from the establish. ment of civil government in this country.

This might, with propriety, be done on the present occasion, if the writer had abilities and leisure for the task: And though he has no pretensions to the know. VOL. I.

B

ledge and ability requisite for such an undertaking, and has little leisure to devote to it, yet he presumes to offer the following sketch, chiefly with a view to provoke some person, more competent to do justice to the subject, to engage in it.

The legal history of South-Carolina may be divided into four periods: I. That which commences and ends with the proprietary government. II. That which commences with the demolition of the proprietary government, and ends with the suspension of royal authority, by the political convulsions which preceded the revolution. HI. That which begins with the first movements of the revolu tion, and ends with the extinction of the royal government, and the establishment of Independence by the treaty of peace with Great Britain, IV. That which begins with the establishment of Independence and reaches down to the present time.

FIRST PERIOD.

The country in North America, south of the 36th degree of north latitude was granted in 1630, by king Charles the fisrt, to Sir Robert Heath, his attorney general, under the name of Carolina; but the grant never took effect. In 1663, king Charles the second, one of the most unprincipled of sovereigns, and profligate of men, in order to promote the pious zeal of certain of his confidential servants and courtiers, for the propagation of the Christian faith (as his charter sets forth) granted to them "all that territory, situate in his dominions in America, extending from the north end of the island called Lucke's Island, in the Virginia seas, and within thirty-six degrees of north latitude, and to the west as far as the south seas, and so southwardly as far as the river St. Mathias, bordering on East Florida, and within thirty-one degrees of north latitude, and so west in a direct line as far as the south seas.'

The grantees were, Edward earl of Clarendon, George duke of Albermarle, William lord Craven, John lord Berkley, Anthony lord Ashley, sir George Carteret, sir William Berkley, and sir John Colleton.

In 1665, this charter was renewed and enlarged, so as to comprehend the territory lying within lines running "north and eastward as far as the end of Charahake river, or gullet, upon a straight westerly line to Wyonoake creek, which lies within or about the degree of thirty-six and thirty minutes, northern latitude, and so west in a direct line as far as the south seas, and south and westward as far as the degree of twenty-nine inclusive, northern latitude, and so west in a direct line as far as the south seas."

This territory was granted "in free and common socage," to the grantees as absolute Lords and Proprietors," who were empowered to make laws and constitutions, with the consent and approbation of the freemen of the colony; to appoint judges, erect forts, make war, &c.

The immortal Locke, distinguished as a political writer, as well as a metaphysician, was employed to frame a constitution or form of government for the infant colony. It is not probable that he was left at perfect liberty to follow the bent of his own genius and principles, in the instrument which was adopted, as his production, by the name of the Fundamental Constitutions; since we can find so little of that noble simplicity and wisdom, which might be expected in a work of that kind, from the hand of so great a master. The stamp of the proprietors is evident on the face of the instrument, in the aristocratical plan of the government, and the complexity and extravagance of its details. The genius of Shaftsbury, rather than that of Locke, is displayed in its composition.

The fundamental constitutions first adopted in 1670, consisted of eighty-one articles. Other fundamental constitutions, contained in one hundred and twenty articles, were afterwards substituted in 1682: but it does not appear that the freemen of the colony ever formally assented to these instruments.

These constitutions contemplate the creation of a palatine for life, and a body of hereditary provincial nobility, with estates to descend with dignities; a governor, to be chosen by the proprietors out of thirteen persons to be nominated by the colonists; a parliament or legislative body, to be composed of the governor and council, and representatives of the people, to sit in one chamber, but without power to originate bills, which were to originate in a grand council, to consist of the governor the deputies of the proprietors, and the provincial nobility. The laws passed by the legislature were afterwards to be approved of by the people; and at the close of every century, were to expire, without the formally of an express limitation or re

peal. The judicial branch of the government, was to consist of a palatine court, eight supreme courts, and seven inferior judicatories.

Meanwhile, until the government could be organized conformably to the funda mental constitutions first adopted, a code of temporary laws was framed by the. proprietors for the government of the colony, in the form of instructions to the, governor and council. Amongst these laws was a set of agrarian rules, the preamble to which breathes a purer equity, and sounder policy, than is commonly found in the institutions of a newly formed community, and upon the principles it de clares, lands were first parcelled out in the province to those who desired to aɛquire property therein.

The words of the preamble are as follows: "Since the whole foundation of government is settled upon a right and equal distribution of land; and the orderly ta king of it up is of great moment to the welfare of this province: and although the regulation of this need not be perpetual, yet since all the concernment thereof will not cease as soon as the government comes to be administered according to the forms established in the fundamental constitutions, that the whole distribution and allotment of land, may be with all fairness and equality, and that the inconvenien. cy of all degrees may be, as much as possible, in their due proportion provided for, We the lords proprietors, &c."

The mode afterwards pursued to obtain titles to land, was by purchase from the proprietors, or their agents, at the rate of twenty pounds for every thousand acres. Warrants of survey issued to the purchasers, who chose such vacant, or unappropriated land as suited them, and located their warrants by actual surveys; after which grants issued to them for the lands so surveyed, with copies of the surveys annexed. The governor and council met once every month for the purpose of issuing grants. The grants were signed and registered, and delivered to the grantees at one shilling quit rent for every hundred acres, to be paid to the proprietors annually. Some land was granted on condition of the payment of one shilling annual rent per acre. But this condition was soon altered by the legislature. Great discontents prevailed with respect to the terms on which lands were granted, and particularly with respect to the payment of quit rents and the fees of civil officers. These discontents encreased to such a degree that the people of the north eastern part of the province denounced the proprietary government, and discord and distraction reigned without control.

The practical operation of civil government commenced in the year 1672, soon after the promulgation of the temporary laws. The province was divided into four counties. Twenty representatives from Berkely and Colleton counties met in the legislative assembly. Juries, that admirable criterion of truth, and most im portant guardian of both public and private liberty, were formed according to the mode directed by the fundamental constitutions; a mode corresponding in princi ple to that which has ever since been preserved. Little, however, was effected, towards the establishment of civil rule, and the control of equal laws, for many years. Certain standing laws, were enacted in 1687; but they were rejected by the proprietors, who insisted on the fundamental constitutions. The people on their part, disliked and disregarded the constitutions. Hence arose mutual disgust and contention.

At length, in 1693, the fundamental constitutions were laid aside, and civil discord, for a short time subsided.

These constitutions were repealed by the proprietors, after the accession of William and Mary, and a new plan of government was provided in 1698; but it did not meet the approbation of the people, by whom it was never acknowledged.

In 1702, in order to pay the expenses occasioned by an unfortunate military enterprize against St. Augustine, the legislature authorized the issue of stamped bills of credit, to be sunk in three years by a duty on liquors, skins and furs. This was the first paper money that appeared in the province, and was the origin of current money, mentioned in many of our acts of assembly, and of what was commonly called old currency till the close of the revolution. It was denominated current money, to distinguish it from sterling money of England, very little of which was ever in circulation, the balance of trade being always in favour of the mother country.

The credit of this currency was at first equal to sterling, and so continued for about six years; but it afterwards depreciated. The necessities of the government continually requiring fresh supplies of a medium of value for circulation, to defray the charges incurred by Indian and Spanish wars, and other exigencies of a feeble and harassed colony, succeeding emissions of bills of credit took place. The first

emissions were for four and eight thousand pounds; but in 1712, a public bank was established, and the issue of bills amounted to forty eight thousand pounds, which were called bank bills, and like our present bank money might be loaned out on security. This paper currency might be legally tendered in payment of debts, though the bills did not carry interest, and were payable at a future time. Expedients were devised for the purpose of reducing the quantity in circulation, which became at length excessive, notwithstanding the emissions were restrained by the royal instructions. These expedients were frustrated by new emissions. Thirty thousand pounds issued in 1716, and two hundred and ten thousand in 1736.

Yet under all these disadvantages, little or no depreciation took place, after the first five or six years from the date of the original emission, for the space of forty years and upwards. The depreciation, which had soon settled at seven for one, remained fixed at that point with little or no variation, till about the year 1750; and even after that period it continued to be the nominal measure of exchange. The Spanish milled dollar which passed current at four shillings and eight pence sterling, was equal to thirty two shillings and eight pence current money. By this relative measure of value, the amount of fines and forfeitures imposed by various acts of assembly may be correctly estimated.

The last emission of paper currency was in the year 1770, for building court houses and goals, which was rendered necessary by the circuit court act of 1769. The issue was for seventy thousand pounds current money, or tên thousand pounds sterling.

The credit of paper currency was now much degraded; and an act of 1782, gave the final blow to it, by taking from it its quality as a legal tender in discharge of debts.

Proclamation money, which is also frequently mentioned in our acts of assembly, acquired that denomination from a proclamation of queen Anne, in the sixth year of her reign, (about the year 1708) the object of which was, to establish a common measure of value for the paper currencies of the colonies. The same species of coins, which were equally rated in all the colonies, and passed at the same value as sterling money, were variously rated, and of different values, in relation to the paper currencies of the several colonies. In some of them the silver dollar passed at eight shillings, in others, at seven shillings and six pence, and six shillings, according to the quantities of paper money thrown into circulation. The standard fixed by the proclamation was, one hundred and thirty three pounds, six shillings and eight pence paper currency, for one hundred pounds sterling. The nominal value of currency was established at one fourth below the value of sterling. The dollar passed at six shillings and three pence, although not quite equal to six shillings and two pence three farthings, proclamation money.

This regulation, though it was respected by the colonial legislatures, was little attended to by the people at large, and the confusion resulting from paper currencies of different values, continued to exist.

In 1700, the government undertook to establish the Episcopal form of religious worship; and persevered in the pursuit of that object, with obstinate zeal, till it was attained in 1706. An act against non-conformity was passed. These measures were extremely odious to a number of the colonists, dissenters and others, who conscientiously refused the communion of the English church. They complained and remonstrated, but all to no purpose. It was a strange, but not an unprecedented circumstance, that a weak colony, anxious to encourage emigrants from abroad, of various Protestant sects, to strengthen itself against foreign enemies, should nevertheless, at such a crisis, insult and persecute their fellow citizens, and Protestant Christian brethren, on account of slight differences in their religious dogmas, and the external ceremonies of worship!

Political and party considerations probably had no inconsiderable influence on the occasion. A profound historian has remarked, that "the religious spirit, when it mingles with faction, contains in it something supernatural and unaccountable; and in its operations on society, effects correspond less with their known causes, than in any other circumstance of government."

An act of 1696, granted liberty of conscience to all Christians, except Papists. By the act of 1706, for the establishment of religious worship, according to the Church of England, and for erecting churches (for which L. 2000 was appropriated) the province was divided into ten parishes. From this act it appears, that the far greater part of the inhabitants of the parishes of St. Dennis, in Orange quarter, and St. James, on Santee, were emigrants from France, and did not understantā

the English tongue; wherefore provision was made for using a French translation of the book of common prayer. This act prohibits the celebration of marriage, contrary to the table of marriages, or by a layman.

The admission of French emigrants to equal privileges with the English, gave great offence, and was the cause of bitter revilings and contests. The English considered them as aliens, and entertained towards them the usual ungenerous prè judices and antipathies of Englishmen. At one time they were excluded from the legislature, but this illiberal spirit at length abated.

In 1708, emigrants from Germany were furnished with land, one hundred per head, free of quit rent for ten years.

An act passed in 1715, to apportion the representation in the general assembly, amongst the several parishes; but it was soon afterwards repealed. This encreased the prevailing discontent and hostility towards the proprietary government. The fundamental constitutions had been regarded as inconsistent with the rights and privileges of the people. The council of twelve was now complained of as an innovation. Violent disputes ensued. The governor being the only legal ordinary, under the church establishment, the clergy refused to marry without his license, which the people did not incline to apply for. Hence it became necessary to form the matrimonial contract, without the approbation of the governor or clergy.

In this situation stood the affairs of the colony in 1719, when an organized plan of resistance to the government was developed. The members of the legislative assembly formed themselves into a convention, and entered into a number of reso lutions, in consequence of which the chief justice (Trott) was displaced and another appointed in his room. Sundry other civil officers were appointed.

These revolutionary measures, which seem to have been countenanced by the Bri tish government, terminated in the complete subversion of the authority of the proprietors, in 1721, when they surrendered their charter to the king, pursuant to a previous agreement, which was afterwards confirmed by an act of parliament 2 Geo. 2.John lord Carteret only, retained his rights of property to one eightl part, but surrendered his other rights.

When king George the first ascended the British throne, a design was formed to purchase the charter of the proprietors, against which the attorney general was instructed to proceed by scire facias. The civil commotions, and revolutionary move. ments in the province hastened the desired event, and royal government succeeded to that of the proprietors. King George the first appointed a temporary government in 1721; and about the same time the province was divided into North and South-Carolina.

Very few legislative acts passed prior to the year 1682. Chief justice Trott, after a diligent search, could find only nineteen, and those of no great importance. In 1692, an act passed concerning the trial of small and mean causesIn 1695, against stealing canoes-In 1696, to settle the form of conveyances, and grant liberty of conscience-In 1698, to encourage the importation of white servants-In 1700, to appoint courts of sessions and goal delivery, twice a year-In 1706, to establish religious worship, and punish blasphemy-In 1707, to establish the bounds of parishes-In 1710, to establish weights and measures-In 1711, to settle a salary on the public receiver, and erect a new brick church in St. Philip's parish. These were the acts of chief importance to be remembered, which passed prior to the year 1712. In that year a number of very important acts were passed, viz: To put in force certain English statutes; to put in force the act of habeas corpus; an act of limitations; an attachment act; an act to establish free schools, &c. &c. In 1720, an act passed for the amendment of the law; and in 1721, acts were passed for choosing members of the commons house of assembly, for appointing a public treasurer, a comptroller and other public officers; and also, for estab lishing county and precinct courts.

SECOND PERIOD.

The government was fashioned after the model of that of England. Prior to 1730, the legislative authority was vested in three branches: A governor, who was in place of the king; a council, which occupied the station of a house of lords; and a representative assembly, answering to the British house of commons. All authority was derived from the crown.