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 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 LOS ANGELES 
 
 #
 
 CONSTITUTIONAL HISTORY 
 
 OF 
 
 SotjitlTL C^r^ollimaL 
 
 FROM 1725 TO 1775. 
 
 BY 
 
 D. D. WALLACE, A. M., 
 
 ADJrNCT PROFESSOR OF HISTORY AND ECOKOMICS IN WOFFORD COLLEGE. 
 
 PRESENTED AT VANDERBILT UNIVERSITY FOR THE DEGREE OF DOCTOR OF 
 
 PHILOSOPHY. 
 
 ABBEVILLE, S. C. : 
 
 Hugh Wilson, Printer. 
 1899.
 
 .CONSTITUTIONAL HISTORY 
 
 7 ""^ 
 
 OF 
 
 Soi^j^tt^ C^r^c3lir:i^ 
 
 FROM 1725 TO 1775. 
 
 BY 
 
 D. D. WALLACE, A. M., 
 
 ; ■ — 
 
 ADJUNCT PKOFESSOK OF HISTORY AND ECONOMICS IN WOFFORD COLLEGE. 
 
 PRESENTED AT VANDERBILT UNIVERSITY FOR THE DEGREE OF DOCTOR OF 
 
 PHILOSOPHY. 
 
 ABBEVILLE, S. C. : 
 
 Hugh Wilson, Printer. 
 1899.
 
 
 ERRATA. 
 
 Page II, la^t line, last word; jr/r// preceding. 
 
 Page 13, twelfth line; strike out second n in Hannover. 
 
 Page 13, ninth line from bottom; spell tranquillity. 
 
 Page 22, ninth line from bottom; strike out simply; in 
 line above, after that insert in some instances. 
 
 Page 22, ninth line from bottom; .y/r// notarial. 
 
 Page 26, eleventh line from bottom; jr/t7/ villians. 
 
 Page 27, second line from bottom; i-Zc// forbade. 
 
 Page 35, twelfth line from bottom; spell Britain. 
 
 Page 40, third line from bottom; spell adjourned. 
 
 Page 49, fourth line; spell its. 
 
 Page 66, fourth line from bottom; read, ten of its mem- 
 bers, leading men, etc. 
 
 Page 92, seventh line from bottom; read makes. 
 
 1563014
 
 
 1563014
 
 NOTE. 
 
 The present publication is not a complete work, 
 nor is it a portion of an uncompleted work; it is only 
 the first part of "The Constitutional History of South 
 Carolina from 1725 to 1810," which is now in manu- 
 script. This will explain the sense of incompleteness 
 which will be experienced in reading these chapters, 
 which constitute hardly one-third of the whole. I have 
 treated the whole period from 1725, and especially from 
 1765, to 1 8 10 as a unit, for reasons which appear in the 
 work; it is therefore not properly susceptible of division. 
 I hope in the near future to issue the complete study in 
 book form. 
 
 The Preface and Bibliography in the following pages 
 belong to the complete thesis, and were not written only 
 for the portion now issued.
 
 PREFACE. 
 
 My object has been to trace the constitutional 
 development of the people of South Carolina. If there 
 is a wearisome multiplication of details it is due to going 
 too far in my desire to make the history perfectly intel- 
 ligible and likewise realistic. This is made the more 
 necessary by the meagre treatment given by the general 
 histories to South Carolina, and by the many egregious 
 blunders in matters of fact in many of them. 
 
 Two thoughts have been paramount in my method 
 of work: first, to find the truth; and second, to co-ordi- 
 date, subordinate and group facts so as to exhibit their 
 essential significance, and allow them to display the 
 manner in which they were the mediums for the trans- 
 mission of constitutional development. Let us find 
 what actually are the facts; that ascertained, facts be- 
 come but the expression of the actualization of the prin- 
 ciples in operation and the ever new starting point for 
 further unfolding. 
 
 Added to these two professional ideas has been that 
 of love for its own sake of the element in which I have 
 worked. Indeed, properly speaking this is also a pro- 
 fessional requisite if one's ideal is not to be barren, 
 heartless and dwarfed. As a native South Carolinian I 
 feel an affection for my State's history and a pride in 
 what of it is noble. I have not, however, written from 
 the standpoint of the South Carolinian, but from that 
 of the historian. This work may possess little worth at 
 best; certainly its value would have been small and its 
 interest narrow had I taken the provincial point of view.
 
 vi PREFACE. 
 
 AH the facts, except some of those in the compar- 
 ative history outside South CaroHna and except a few 
 within the State, are from original sources, mainly 
 manuscripts and contemporary newspapers. I have 
 endeavored to get beyond the mere legislative and 
 judicial records, by the use of letters and newspapers.^ 
 
 I am under special obligations to the Charleston 
 Library Society, and particularly to Dr. H. Baer, by 
 whose courtesy I enjoyed the privileges of this institu- 
 tion. I take pleasure in thanking Mr. W. G. Hinson, 
 of James Island, Charleston county, for extending me 
 the unrestricted use of his library. Dr. Wilson, of 
 Charleston, has also been so kind as to allow the use of 
 the library of the South Carolina Historical Society, of 
 which he is President. 
 
 Hon. D. H. Tompkins, former Secretary of State, 
 and Hon. M. R. Cooper, the incumbent, as well as all 
 the other occupants of the department offices, have 
 been so uniformly helpful in furnishing every facility 
 for the prosecution of the most important part of my 
 work that I express with pleasure my warm appreciation. 
 
 I append, without discussing, the following bibli- 
 ography. 
 
 D. D. WALLACE. 
 
 Vanderbilt University, April 25, 1899. 
 
 1 The title "Public Records," used below, is very inadequate. These Records 
 are correspondence, etc., official and otherwise (nearly always official), on 
 nearly every conceivable feature of the history of South Carolina from its set- 
 tlement to the Revolution. They were recently copied from the Public 
 Records Office in London.
 
 BIBLIOGRAPHY. 
 
 I. Primary Authorities. 
 
 (a) Official contemporary, not including any of (d). 
 American Archives, 7 Vols. 
 American Eloquence, 2 Vols. 
 Collections of the South Carolina Historical Society. 
 
 See Journal of the Council of Safety. 
 Debates in the Convention of 1788 (S. C.) on the Fed- 
 eral Constitution.^ 
 Debates on the Federal Constitution; Elliot.^ 
 Elliott. See second "Debates." 
 ournal of the Commons House of Assembly of South 
 
 Carolina, 1719-1775; MS. 
 ournal of the Council of Safety of South Carolina; 
 Vols. n. and HI. of Collections of the South 
 Carolina Historical Society, 
 ournal of His Majesty's Council of South Carolina, 
 
 1719-1774; MS. 
 ournal of the House of Representatives of South Car- 
 olina, 1776-1815; MS. 
 ournal of the Privy Council of South Carolina, 
 
 1784-86; MS. 
 ournal of the Senate of South Carolina, 1 783-181 5; 
 
 MS. 
 Poore; Constitutions and Charters,^ 2 Vols. 
 Public Records of South Carolina; MS.; 39 Vols. 
 Statutes at Large of South Carolina; 10 Vols. 
 
 (b) Contemporary unofficial, not including any of 
 (c) and (d). 
 
 1 It is not meant that the publishing in the form cited was official.
 
 Vlll 
 
 BIBLIOGRAPHY. 
 
 Adams, John; Works, Vol. IV. of the lo Vol. edition. 
 
 Address to the People of South Carolina, by the Gen- 
 eral Committee of the Representative Reform 
 Association; by Appius. Columbia, S. C. , June, 
 1794. 
 
 Alston, Hon. Joseph, of Winyaw; Speech in the House 
 of Representatives of South Carolina, December, 
 1807, on amending the State Constitution. 
 
 Americanus. See Constitutionalist, 
 
 Appius. See Address, etc. 
 
 Constitutionalist, The; by Americanus (Timothy Ford). 
 Charleston, S. C, 1794. 
 
 Ford, Timothy. See Constitutionalist. 
 
 Gibbes, R. W. ; Documentary History of the American 
 Revolution in South Carolina, 178 1-2. See also 
 "Tar and Feather Papers." 
 
 "Tar and Feather Papers" (so called); loose MSS. of the 
 late Prof. R. W. Gibbes. ^ 
 (c) Contemporary Journalistic. 
 
 City Gazette, or the Daily Advertiser, The; Charleston; 
 by Markland & Mclver. 
 
 Gazette of the State of South Carolina; Charleston, 
 weekly; by Peter Timothy. 
 
 South Carolina and American General Gazette; Charles- 
 ton, weekly; by R. Wells & Son; afterwards by 
 Jno. Wells, Jr. 
 
 South Carolina Gazette; Charleston, weekly; by Peter 
 Timothy, Printer to the Honorable the Com- 
 mons House of Assembly. 
 
 South Carolina Gazette and Country Journal; Charles- 
 ton, weekly; by Charles Crouch. 
 
 1 Some of these papers would come under a different class in the bibli- 
 ography ; those I have used belong here.
 
 BIBLIOGRAPHY. ix 
 
 Universal Gazette, The; Philadelphia. 
 (d) Court Reports. 
 
 Early Reports in all the original thirteen States; but 
 more particularly, 
 
 Bay, Judge Elihu; Reports of Law Cases in South Car- 
 olina, 1 783-1 804. 2 Vols. 
 
 Mill; Constitutional Reports of cases in 1 817. 2 Vols. 
 
 Nott & McCord; Law Cases 1817-1819. 2 Vols. 
 
 Thayer, James B. ; Cases on Constitutional Law. 2 
 Vols. 
 II. Secondary Authorities. 
 
 American Academy of Political and Social Science. 
 See Morey and W^ebster. 
 
 Appleton's Cyclopedia of American Biography. 
 
 Bancroft, George; History of the Adoption of the Fed- 
 eral Constitution. 2 Vols.^ 
 
 Davis, Horace; American Constitutions; the Relations 
 of the Departments as Tested by a Century. J. 
 H. U. Studies in Historical and Political Science, 
 Third Series, IX. -X, 
 
 Drayton, John; Memoirs of the American Revolution, 
 Principally in South Carolina. 2 Vols. 
 
 Hildreth, Richard; History of the United States; 6 
 Vols; Vol. III. 
 
 Jameson, Judge J. A. ; The Constitutional Convention. 
 
 Mill; Statistics of South Carolina. 
 
 Morey, William C. ; The Genesis of a Written Consti- 
 tution. Annals of the American Academy of 
 Political and Social Science, April, 1891 (I., 
 
 529). 
 O'Neal, Judge John Belton; Bench and Bar of South 
 Carolina. 2 Vols. 
 
 1 Follows the records so closely as to resemble a primary authority.
 
 X BIBLIOGRAPHY. 
 
 Schouler, James; Constutional Studies. 
 
 Taswell-Langmead ; Constitutional History of England. 
 
 Thayer, James B. ; Origin and Scope of the American 
 Doctrine of Constitutional Law. See also under 
 I., (d.) 
 
 Webster, W. C. ; State Constitutions of the American 
 Revolution. Annals of the American Academy 
 of Political and Social Science, No. 200. 
 III. Collateral Works. 
 
 Adams, Brooks; The Embryo of a Commonwealth. 
 Atlantic Monthly, November, 1884 (Vol. LIV., 
 610). 
 
 American Historical Review. See Trent. 
 
 Atlantic Monthly. See Adams, Brooks. 
 
 Jameson, J. Franklin; Introduction to the Study of the 
 Constitutional and Political History of the Indi- 
 vidual States. J. H. U. Studies in Historical 
 and Political Science, Fourth Series, V. 
 
 Johns Hopkins University Studies in Historical and Polit- 
 ical Science; see under this division, Jameson, J. 
 F. ; Moran; Ramage; Riley; Whitney; under 
 II., Davis. 
 
 Johnson, Alexander; Connecticut, in American Com- 
 monwealth Series. 
 
 Locke, John; Two Treatises on Government. See also 
 in Poore, under I., (a). 
 
 Moran, F. F. ; Rise of the Bicameral System in Amer- 
 ica. J. H. U. Studies, Thirteenth Series, V. 
 
 Pinckney, Rev. C. C. ; Life of Gen. Thomas Pinckney. 
 
 Ramage, B. J. ; Free Schools and Local Government in 
 South Carolina. J. H. U. Studies, First Series, 
 XII. 
 
 Ramsay, David; History of South Carolina. 2 Vols.
 
 BIBLIOGRAPHY. xi 
 
 Ramsay, David; History of the Revolution of South 
 Carolina from a British Province to an Independ- 
 ent State. 2 Vols. 
 
 Riley, F. L. ; Colonial Origin of New England Senates. 
 J. H. U. Studies, Fourteenth Series, III. 
 
 Stevens, C. E. ; Sources of the Constitution of the 
 United States, Considered in Relation to Colonial 
 and English History. 
 
 Trent, W. P.; The Case of Josiah Philips (in Va.). 
 American Historical' Review, I., 444. 
 
 Whitney, E. L. ; Government of the Colony of South 
 Carolina. J. H. U. Studies, Thirteenth Series, 
 I. -II.
 
 TABLE OF CONTENTS. 
 
 Chapter Page 
 
 I. Introductory 1 
 
 II. The Royal Governor. 4 
 
 III. The Commons House of Assembly 9 
 
 IV. His Majesty's Council 16 
 
 V. The Courts Before 1769 21 
 
 VI. Regulators, and the Circuit Act of 1769 25 
 
 VII. The Stamp Act '. 32 
 
 VIII. Relations of Commons and Council 1725 to 1765 47 
 
 IX. Appropriation of Money on Sole Authority of the 
 
 Commons 59 
 
 X. Attempt of the Commons to Abolish the Legisla- 
 tive Character of the Council 78 
 
 XI. Conclusion 90
 
 CONSTITUTIONAL HISTORY 
 
 OF 
 
 FROM 1725 TO 1775. 
 
 CHAPTER I. 
 
 Introductory. 
 
 It has been remarked by Prof. Rivers, in Windsor's 
 Narrative and Critical History of America, that the 
 most noteworthy feature in the colonial history of 
 South Carolina is the growing power of the Commons 
 House of Assembly. No statement could be made 
 regarding the history of the province which would be at 
 the same time so concise and so comprehensive. This 
 increasing determination of the people to be self-gov- 
 erned was emphatically asserted in the revolution of 
 1 7 19. That year is also a dividing point in the de- 
 velopment. Before that date it was the struggle 
 against the Lords Proprietors; afterwards, the contest 
 against the arbitrary power of the King as expressed 
 through the Royal Governor, and particularly the Coun- 
 cil. To trace this struggle across the period from 1725
 
 2 CONSTITUTIONAL HISTORY OF S. C. 
 
 to 1775 is the theme of this paper. This period com- 
 prised the years of preparation for independent state- 
 hood. To understand the events we shall see enacted, 
 some general view of the frame of government which 
 was in existence will be of help. 
 
 No colony presented more glaring contrasts in 
 social and governmental life than did South Carolina. 
 Yet these contrasts were almost wholly factitious, 
 destined by geography, products and social institu- 
 tions to be brought in a few decades to an essential 
 homogeneity. No society was more elegant than 
 that of Charleston, the provincial capital; few more 
 free, both from culture and restraint, than that of 
 the distant back country, where two converging streams 
 of Scotch-Irish and Germans, by land down the moun- 
 tain ridges from Pennsylvania and the intervening colo- 
 nies, and by sea through Charleston, were preparing to 
 shift the governmental centre of gravity far from the 
 City by the Sea. The low country "planter," ordained 
 by God, as he said, not to labor in the swamps, might 
 own thirty thousand acres and a thousand slaves; the 
 up country "farmer" was better off without the "pecu- 
 liar institution," and the grant book recorded his land 
 in hundreds, not thousands, of acres. 
 
 The names that fill the pre-revolutionary history of 
 South Carolina are all of low country families. Wealth 
 as well as culture kept near the sea shore. As late as 
 1790, the city of Charleston alone paid 27 per cent. 
 more taxes than the whole up country combined; while 
 the three "districts" of Georgetown, Charleston and 
 Beaufort, the area always meant at this time by the 
 "low country," paid some three and one-half times the 
 taxes of all the rest of South Carolina. The poorer up
 
 INTRODUCTORY. 3 
 
 country section had then four times the population of 
 the other. Before the Revolution, the disproportion of 
 wealth was even greater. 
 
 In Charleston, too, was the seat of government. 
 There the Governor lived, the Assembly met, the courts 
 convened. Until 1772 no court, except the feeble jus- 
 tices of the peace, and irresponsible similar courts for 
 the trial of slaves, ever met outside the city. The up 
 country likewise had not one representative in the legis- 
 lature. Warping the meaning, we may say that if the 
 maxim be true, that the country that is governed least 
 is governed best, then the government of the up coun- 
 try left little to be desired. 
 
 The frame of government comprised the Governor, 
 the Commons House of Assembly, the Council, and the 
 Courts. These four were not organized into the three 
 distinct branches of executive, legislative and judiciary; 
 for the Governor, besides having a veto power, was 
 something of a judge, and the Council was a mixture of 
 all three. Here, let us note, lay one great cause of the 
 gripings of the colony's constitution.
 
 CHAPTER II. 
 
 The Royal Governor. 
 
 The Governor or Lieutenant-Governor was the 
 chief executive of the colony and did the things usually 
 done by chief executives. The difference between the 
 Governor and the Lieutenant-Governor was, first, that 
 the Governor was always an Englishman, and the Lieu- 
 tenant-Governor always a South Carolinian. The one 
 was never denied the more distinguished title and the 
 other was never granted it. Second, the form of ad- 
 dressing the Governor was always "His Excellency;" of 
 the Lieutenant-Governor, "His Honor. " Third, when 
 both were in the province, the Governor took precedence 
 and administered the government.^ 
 
 When the Governor was in the colony, the Lieu- 
 tenant had no duties, unless by virtue of some other 
 office. Both were commissioned and served without 
 any reference to each other's terms of continuance. 
 
 1 Some controversy has been raised on the appointment of Lieutenant- 
 Governors in .South Carolina. Prof. E. L. Whitney, in his "Government of 
 the Colony of .Soutli Carolina," page 45, says that Thomas Brougliton was the 
 only Lieutenants-Governor ever appointed in tliat colony. This is a serious 
 mistake. I am sure that Dr. Whitney has not consulted tlie proper author- 
 ities. He has evidently written liis study without any access to the Journals 
 and records in Columbia, still in manuscript, the only source in this countiy 
 from which the information can be obtained. I do not discover in his whole 
 work a single reference to these authorities. I have examined thousands of 
 pages of these records, including the deUiils of the appointment of every chief 
 e.xecutive under the royal government, and have found the facts as stated 
 in the text above. For about twenty-flve of the flfty-six years of royal 
 government in South Carolina the province was administered by Lieutenant- 
 Governors, of whom there were three. Gen. l<:dward McCrady, in his "Kouth 
 Carolina Under the Proprietary Government," p. 34, has already fully correct- 
 ed this error of Prof. Whitney.
 
 THE ROYAL GOVERNOR. 5 
 
 Not at all times by any means did both exist. Their 
 terms were during royal pleasure. The annual pay of 
 either was ^^3,500 currency, equal to ;^500 sterling, and 
 a house worth ^700 rental.' When part of the fiscal 
 year was filled by one executive and part by a successor, 
 each was paid exactly in proportion to the time of his 
 service. 
 
 By the King's instructions, in the absence of both 
 Governor and Lieutenant-Governor the oldest Coun- 
 cillor was to succeed temporarily, but was not to pass 
 any law, unless of the most pressing necessity, without 
 the express royal permission. On two occasions under 
 the royal government this exigency arose: in 1726, and 
 again in 1737. In the first instance Arthur Middleton 
 was at the head of the government for several years 
 and was addressed as "Mr. President;" and in the 
 second, the elder William Bull held on this tenure for 
 more than two years and was called Lieutenant- 
 Governor."^ 
 
 The Commons House of Assembly, who controlled 
 the purse strings, always refused to admit that this or 
 any other royal official's pay was a "salary." It was a 
 "gift," or "allowance," they said, of the good people 
 of South Carolina, which they might diminish or even 
 withhold altogether whenever they saw fit. With this 
 weapon they occasionally smote some Governor or 
 judge whom they thought to have trespassed upon their 
 rights. 
 
 1 Currency was oue-seveuth the value of sterling; pioehinmtion money, 
 five-sevenths the value of sterling. The value of proclamation money was 
 fixed by royal proclamation, of Queen Anne, at a certain ratio. Of course 
 that had no effect. I give the figures at which the moneys actually passed. 
 (Statutes at Large of 8. C, I., 428; Com. Jour. .S. U., MS., XXXIX., pt. II., 132; 
 Pub. Rec. S. C, MS., XXXI., 2G6.) 
 
 2 Pub. Rec. S. C, MS., VIII., 101 ; XXIX., 132.
 
 6 CONSTITUTIONAL HISTORY OF S. C. 
 
 The King used every effort and strategy to induce 
 the Commons to attach fixed salaries to the positions of 
 all his appointees who drew their pay from the colonial 
 treasury. This the Commons steadily refused to do. 
 The only instance in which the King carried his point 
 was in the Circuit Court Act of 1769, which was such a 
 pressing necessity that he could dictate terms to the leg- 
 islature. The salaries of certain officials to be ap- 
 pointed under that law were accordingly by it fixed and 
 were attached to the office. 
 
 The Governor had power of removing for cause 
 councillors, judges, justices of the peace and other civil 
 royal appointees, subject always to the final decision of 
 the King. The Assembly and the Council frequently 
 petitioned for removal, but the Governor was in no wise 
 bound to follow their wishes. These addresses general- 
 ly, if not always, came from these bodies separately, as 
 such requests were usually onl}' side strokes in the bat- 
 tles between them, each desiring the removal of its own 
 enemies and of its enemies friends.^ 
 
 The pardoning power also was exercised by the 
 Governor, though in a sort of suspensive manner, sub- 
 ject to the King's allowance or disallowance. In this 
 way a pardon from the Governor was strictly speaking 
 a reprieve, likely to be confirmed by the ultimate 
 authority because of the confidence entertained in him 
 by the ministry.- 
 
 The Governor always met with the Council and 
 presided, except when they were transacting purely leg- 
 islative business or when he wished them to be abso- 
 lutely uninfluenced by his presence. Usually on all his 
 
 1 Com. Jour. 8. C, MS., XXXVII., pt. II., 104, 351-9, 391, 402. 
 
 •i Council Jour. S. C, MS., XXXIV., 152, 106; Pub. Rec. S. C, MS., XXXI., 425.
 
 THE ROYAL GOVERNOR. 7 
 
 acts he consulted them, though he was not bound to 
 take their advice. Yet he was nearly always governed 
 by their counsel, so that practically there was a plural 
 executive of which the Governor was chief; he was the 
 executive officer of the executive. 
 
 The most important fact in connection with the 
 Governor is that he was the channel through which the 
 King's influence was exercised in the government of 
 South Carolina. With his commission, he was given a 
 long set of minute "instructions," followed from time 
 to time by such "additional instructions" as were 
 needed. These instructions were regarded by the King 
 as the constitution of the province, not to be violated 
 by the legislature, the Governor, or any other officer. 
 Unusual proceedings of the legislature and constitu- 
 tional questions were tested by them, just as our 
 supreme court now tests such things by our written 
 Constitution. The details of this and its constitutional 
 significance will be treated at the proper place. ^ 
 
 The Governor was in constant, minute communi- 
 cation with the Secretary of State for the Colonies or 
 the Board of Trade, from whom he received directions 
 on permitting the building of a road and on everything 
 else of a legislative character concerning the life of the 
 people of the far away colony. What the King wanted 
 done or not done was generally, not always, carried out 
 as well as if the palace had been situated on Broad 
 Street or the Battery. "-^ 
 
 The right to veto absolutely all bills passed by the 
 Assembly belonged to the Governor. Even more, all 
 
 1 The Uiorough treatment of this is in tlie unpublished part of this work, as 
 its full significance does not appear until the formation of the early State 
 Constitutions. 
 
 2 Pub. Rec. S. C, MS., XXX., 245.
 
 8 CONSTITUTIONAL HISTORY OF S. C. 
 
 laws must receive his signature ; his simple indiffer- 
 ence did allow them to pass. An act when signed by 
 him acquired the force of law, unless it contained a sus- 
 pending clause, and continued to operate unless annulled 
 by the King. I do not observe that the King ever pre- 
 sumed to annul a law after it had been once allowed 
 by him to go unchallenged. It was a ruse of the colo- 
 nists, which sometimes succeeded, to secure the benefit 
 of laws for which they knew the royal assent could not 
 be expected by enacting that they should go into oper- 
 ation so quickly and for so short a time that their effect 
 would already have been worked before the King could 
 send notice of his veto. To prevent this the Royal Gov- 
 ernor, from the very first, was instructed not to allow 
 any act of an unusual nature, or affecting the King's 
 prerogative, or previously vetoed by the King, to 
 become a law until it had received the assent of the 
 King himself. To all other laws the Governor might 
 give his assent, provided they were to operate (except 
 in a few cases) for not less than two years. ^ 
 
 The Governor had absolute power to adjourn, pro- 
 rogue and dissolve the Assembly. They could not 
 adjourn themselves, except from day to day, but by his 
 consent.'- The hybrid character of the Council is illus- 
 trated by the fact that it often advised the Governor in 
 ordering a prorogation or dissolution, one House of the 
 legislature thus contributing to the destruction of the 
 other. 
 
 1 Pub. Rec. 8. C, MS., XXVI., 276. 
 
 2 Com. Jour. S. C, MS., XXXVII.. pt. I., 99 ; ib., pt. II., 206, 523, 700.
 
 CHAPTER III. 
 
 The Commons House of Assembly. 
 
 The constitutional history of colonial South Caro- 
 lina was made most largely by the Commons House of 
 Assembly. The history of this body is the histor}^ of 
 political liberty in the province. Therefore bear with 
 this brief description, after which the Assembly will act 
 out its own story before our eyes. 
 
 The Commons House of Assembly, the General 
 Assembly, the Assembly, or, under protest in the later 
 years, the Lower House of Assembly, was during the 
 third quarter of the i8th century composed of forty- 
 nine members. They were elected for a term of three 
 years, but usually met the fate of an earlier dissolution.' 
 The law required that they should be convened at least 
 once in six months. They could be assembled, adjourned 
 (except from day to day), prorogued, and dissolved only 
 by the Governor or Lieutenant-Governor. For a long 
 time before the Revolution, they were too proud, says 
 Lieutenant-Governor Bull, to receive any pay, though 
 at an earlier day they got their per diem. This was not 
 again practiced until after independence.^ 
 
 The system of representation was intertwined with 
 the Episcopal established church. By the middle of the 
 last century a changing community and an unchanging 
 system presented many features of rotten borough injus- 
 tice. In 1765 there were twenty parishes, electing from 
 
 1 Pub. Rec. S. C, MS., XXXII., 27. 
 
 2 Pub. Rec. S. C, MS., XIV., 153.
 
 lo CONSTITUTIONAL HISTORY OF S. C. 
 
 one to three members each.^ In 1770 there were twenty- 
 two. These parishes covered a strip of some fifty miles 
 in breadth along the sea coast, widening in the centre 
 at St. Matthew's to about ninety. The parishes theo- 
 retically extended to the western limits of the province, 
 a provision with scarcely more practical result than that 
 of the Charter of Charles II. extending the possessions 
 of the Lords Proprietors westward to the Pacific Ocean. 
 
 Elections were held by the church wardens, or by 
 appointed managers, at the parish church, except when 
 good reasons indicated a better place, and lasted for two 
 days. As only the small strip of country along the sea 
 coast was organized into parishes, and as representation 
 was solely on that basis, the back country was left 
 wholly without representation. This injustice was felt 
 to be very heavy. The back countrymen regarded it as 
 their chief grievance, and the root of all- their others. 
 In 1768 numbers refused to pay taxes because unrepre- 
 sented and threatened that if their complaints continued 
 to be treated with slight and reproach, they would come 
 down 01 masse and "force a due attention to their 
 claims."^ In about 1766 a popular leader from the upper 
 section of St. Mark's, which theoretically including a 
 large part of the whole province, brought down to the 
 parish church on election day some one hundred and 
 fifty of his partisans, captured the poll and went victo- 
 riously to the legislature.^ 
 
 For the injustice of the representation two parties 
 were responsible: the King of England and the low 
 countrymen of South Carolina. The former refused to 
 
 1 Cora. Jour. S. C, M.S., XXXVII., 1. 
 
 2 Pub. Rec. S. ("., MS., XXXII., 36. 
 
 3 Pamphlet of 1794 or 1807. I neglected to note the page or which pamphlet 
 it is ; but I think it is the first mentioned.
 
 COMMONS HOUSE OF ASSEMBLY. ii 
 
 allow any increase in the number of the legislature;' and 
 the latter refused to divide their membership of forty- 
 nine with their unrepresented fellow citizens. One of 
 the fiercest battles in the constitutional history of South 
 Carolina was that in which, with stubborn injustice, the 
 low country clung to its preponderant privileges until 
 the year 1808. 
 
 The idea of requiring a member to live in the dis- 
 trict he represented did not arise until long after the 
 Revolution. The same man sometimes sat for different 
 parishes in successive representative bodies. 
 
 From the very settlement of the colony, the prob- 
 lem of electoral qualifications was one of a proper mix- 
 ture of property and religion. From 1670 to 1790 these 
 are the two varying ingredients of the test. The law 
 passed in 1759 was the regulation until the Revolution. 
 This prescribed that a voter should be a "free white 
 man, and no other person, professing the Protestant 
 religion, who shall have attained the age of twenty-one 
 years, and shall have been a resident and inhabitant of 
 this province for the space of one year, at any time 
 before the date of the writ to be issued for that election 
 at which he shall offer to give his vote, and shall have a 
 freehold estate in a settled plantation, or not less than 
 one hundred acres of land unsettled, for which he shall 
 have paid tax the preceeding year, or shall have a free- 
 hold estate in houses, lands or town lots or parts thereof 
 of the value of sixty pounds proclamation money,- sit- 
 uated in Charleston or any other town of this province, 
 for which he shall have paid the tax for the preceeding 
 
 iPub. Rec. S. C, MS., XXXI., 393-7; Com. Jour. S. C, MS., XXXVII., pt. 
 II., 553. 
 2 Five-sevenths the value of sterling.
 
 12 CONSTITUTIONAL HISTORY OF S. C. 
 
 year, or shall have paid the sum of ten shillings pro- 
 clamation money for his own proper tax the preced- 
 ing year. "^ 
 
 One might vote in as many parishes as he was qual- 
 ified in, or be elected from any parish. At a later date, 
 when the election districts of the State had been divided 
 for convenience into precincts, we find a law forbidding 
 one to vote in more than one precinct, but no prohibi- 
 tion is made of one's voting in more than one district. 
 This is perfectly logical under a property qualification, 
 as all property should be represented. 
 
 In the expression "free white man" there is no 
 superfluous term, as might perhaps be supposed. Not 
 all free men were white, and not all white men were 
 free. Besides the free negroes and the Indians, both 
 of whom were excluded under this rule, there was also 
 a pitiable class of whites known as "servants"; these 
 were the same as the "indentured servants" of Virginia, 
 Maryland, etc. They were never numerous in South 
 Carolina, and in the latter half of the i8th century had 
 become very few. These miserable persons, neither 
 slaves nor freemen, were treated in almost all 
 respects as slaves, except that the term of their servi- 
 tude was limited. A law of 171 7 expressly forbade them 
 to vote. Their social condition was, however, much 
 ameliorated in 1744." 
 
 A member of Assembly was required to be a natural 
 born subject of Great Britian or a foreigner naturalized 
 by act of Parliament, having in South Carolina a settled 
 freehold estate of 500 acres and 20 slaves, over and 
 above all debts; or, he should have in his own right over 
 
 1 statutes at Large of S. C, IV., 99. 
 
 2 Statutes at Large of S. C, III.,J3.
 
 COMMONS HOUSE OF ASSEMBLY. 13 
 
 and above all debts, houses, town lots or other lands in 
 South Carolina to the value of ^1,000 proclamation 
 money. ^ 
 
 When a member elect appeared at the door of the 
 House, the question was put to him by the Speaker 
 whether he desired to "qualify." "Qualifyinj^" meant 
 swearing to one's qualifications for membership as pre- 
 scribed by law. If the member elect assented, he made 
 oath immediately in the presence of the House and was 
 then conducted by a committee to the Governor, who 
 administered the "state oaths," i. e. the oaths of alleg- 
 iance to the House of Hannover, enmity to Stuart pre- 
 tenders and their abettors, as prescribed in the Act of 
 Settlement, and abjuration of transubstantiation and the 
 papacy, in the manner required of British members of 
 Parliament by the Test Act.- 
 
 Not infrequently members elect declined in the first 
 instance to qualify. The Governor was then requested 
 to issue a writ for the election of a substitute.'^ This 
 apparent indifference to governmental position is ex- 
 plained by the absence, in ordinary times of political 
 tranquility, of the incentive of party ardor. The aristo- 
 cratic South Carolinian was too proud to rush for petty 
 political distinction. This spirit, born of both pride and 
 lack of a keen sense of civic duty, endured to a consid- 
 erable extent as late as the Civil War. Service in a 
 number of offices was made compulsory in the early 
 Constitutions. Late in the present century urgent solic- 
 itations were often necessary to induce members of the 
 class that ruled the State to accept public office. 
 
 1 statutes at Large of S. C, IV., 99. 
 
 2 Com. Jour. S. C, MS., XXXVII., pt. II., 14 ; Taswell-Langmead, 656, 691. 
 
 3 Com. Jour. S. C, MS., XXXVIII., 15.
 
 14 CONSTITUTIONAL HISTORY OF S. C. 
 
 By an extralegal agreement, the representation of 
 the city of Charleston, comprising the parishes of St. 
 Philip and St. Michael, was drawn equally from the mer- 
 chants and the mechanics.^ 
 
 The privileges claimed by the Commons House of 
 Assembly were, in brief, those of the British House of 
 Commons. How far they succeeded in realizing the full 
 extent of their assertions will best appear in the history 
 we are to trace. Some of the most important of these 
 privileges were firmly denied by the K^ing; it is there- 
 fore that we shall witness some terrific parliamentary 
 explosions. Sad was it for lesser individuals who with- 
 stood their claims; for the common jail in Charles Town 
 was the sure goal of him who, unprotected by eminent 
 position, dared to put contempt upon the privileges of 
 the Commons House of Assembly. 
 
 The minute character of local affairs to which legisla- 
 tion descended was largely due to the complete absence 
 of municipal, township and county self-government. 
 Highway commissioners, church wardens and vestrymen 
 were about the only local officers elected by the people. 
 The Assembly widened a street in Charleston, closed a 
 path through Dr. Alexander Garden's plantation, and re- 
 imbursed the wardens of St. John's, Berkeley, for repair- 
 ing Rev. Hockley's parsonage. - 
 
 1 S. Carolina Gazette, Nov. 21, 1774. It is iiiteresUng to note that at this day 
 James Island, now a part of Charleston County, by unwritten custom is allow- 
 ed one member on the Charleston delegation. The James Island people 
 agree on their man, and no matter liow politics in the city go, everybody 
 makes the Island man (or "countryman") one of his ticket. (For this I am 
 indebU'd U) Messrs. W. G. Hinson and K. S. Rivers, of James Island.) 
 
 Another interesting instance, before the formation of Dorchester County in 
 1807, was the allotment of on« representiitive to one of the old parishes in Col- 
 leton County and two to the other. This, however, was from no contrariety of 
 Interests. It simply illustrates these extralegal distributions of representation. 
 
 2 Cora. Jour. S. C, MS., XXX VII., pt. II., 279-81 ; ib., XXXIX., pt. II., 229.
 
 COMMONS HOUSE OF ASSEMBLY. 15 
 
 "To this House, guardians as they are of the peo- 
 ple's rights, " says Rawlins Lowndes, I refer this affair of 
 my having been discharged from the bench without 
 cause, "contrary to the spirit of the English constitu- 
 tion." And so, to these guardians, as in very truth 
 they were, were referred petitions and appeals on every 
 violated liberty. If Governor, Council and King gave 
 no relief, the Commons would at least "resolve", 
 have reports from the Committee on Grievances, and 
 excoriate the royal representatives in the government. 
 
 The great enemy of the Commons House of Assem- 
 bly was His Majesty's Council — the Jebusites entrenched 
 in Mt. Zion, to discomfit whom was the unwearied work 
 of such 1 8th century Davids as Christopher Gadsden. 
 Their long struggle raging around money bills and end- 
 ing in the Commons absolutely denying legislative charac- 
 ter to the Council and for a brief space absorbing the 
 whole lawmaking authority, is the most exciting chap- 
 ter in the parliamentary history of South Carolina. Let 
 us now learn what this Council was.
 
 CHAPTER IV. 
 
 His Majesty's Council. 
 
 His Majesty's Council, as their official title ran, 
 were the South Carolina "King's friends." Forget all 
 else, but remember this. A large part of the instruct- 
 ions to Governors was always devoted to these bulwarks 
 of royal power. This body consisted of not more than 
 twelve members. It is a mistake to say, as is usual, 
 that the Council consisted of twelve; for the King's in- 
 structions even sometimes only say "not more than 
 twelve." For long periods there was so small a num- 
 ber as eight, and the greater part of the time there were 
 some vacancies. In 1754, e. g. , there were but five 
 Councillors in the province.' 
 
 A quorum of three was allowed to act, though the 
 King desired five if possible."-^ Twenty-nine instances 
 selected at random from their Journals from 1765 to 
 1767 show an average attendance of four, of whom 
 a majority were often English placemen. 
 
 As the royal government made itself more and 
 more obnoxious, the post of Councillor, formerly sought 
 as an honor, was so disdained by the best citizens that 
 seats went begging for months or even years, and it 
 was often with the greatest difficulty that the Governor 
 could assemble a corporal's guard of three in the Coun- 
 cil chamber. 
 
 The only qualifications required of a Councillor 
 
 1 Pub. Rec. S. C, MS., XXXIX., 241, 344; XXX., 170; XXXII., 74, 85, etc. 
 
 2 lb., VIII., 101 ; XIV., 149.
 
 HIS MAJESTY'S COUNCIL. 17 
 
 were that he be a gentleman of independent fortune and 
 character, either a native or an Englishman, and devot- 
 ed to the interests of the King. 
 
 The organization of this body violated sadly the 
 rule of the separation of powers. Into it were tumbled 
 every function of government and every style of ol^cer. 
 The judges, the attorney general, the Indian commis- 
 sioner, the receiver general of His Majesty's quit rents, 
 all upheld there the prerogative of their royal master. 
 The duties of the Council were hardly less heterogeneous 
 than its membership. It laid large hands on both 
 executive and judicial as well as legislative functions. 
 In the latter part of the period we are studying it is hard 
 to say whether the Council was more of a legislative 
 or of an executive body. The character of no other 
 branch of the government under the royal rule was so 
 revolutionized. In later chapters that revolution, 
 which is much of the best history of South Carolina, 
 will be seen working itself out in its proper relation- 
 ships. 
 
 The executive functions of the Council have al- 
 ready been touched upon in the description of the 
 Governor. Generally speaking, they discussed and 
 advised upon every executive subject and act. Land 
 grants and Indian affairs were among the most frequent 
 and important matters which engaged their attention. 
 In their Journals we find frequent ''talks," treaties, and 
 messages from such characters as Killagusta, Prince of 
 Chote, Johnny of Toxana, Otasitie of Ouaratchie, 
 Judd's Friend, The Young Warrior of Estatoe, and 
 Skallilosky of Chilhowey. ' 
 
 There is no foundation in the King's instructions or 
 
 1 E. g. CouncU Jour., XXXII., (itJO.
 
 1 8 CONSTITUTIONAL HISTORY OF S. C. 
 
 in the actual history for the statement made by a recent 
 writer/ that "nothing of importance could be done by 
 the Governor without the consent of the Council first 
 obtained." As most wise men would have done, the 
 Governor usually asked the advice of his Council and 
 usually followed it ; but if he cared to take the re- 
 sponsibility, he might act without its advice and against 
 its will. 
 
 In its legislative character, as prescribed by the 
 King, the Council was given absolutely coordinate pow- 
 ers with the Commons, including by special mention 
 the amendment and passing of money bills. Such a 
 claim could never be admitted by their jealous rivals, 
 the popular branch, a body claimingf for itself the 
 privileges of the British Lower House. 
 
 In no respect did the actual constitution of the 
 colony differ more from that prescribed by the King's 
 instructions than in regard to the coordinate legislative 
 power of the Council and their duties as a court of 
 appeal. Their judicial functions were, in theory, of 
 two kinds ; in reality, of but one. According to the 
 royal instructions, civil cases of over ^300 sterling, or 
 of less if involving important points of law, or cases con- 
 cerning the King's prerogative or revenue, might be ap- 
 pealed to the Governor and Council as a court of error. 
 In similar cases involving over ^500 appeal lay still 
 further to the King in Council.- The judges who had 
 given the first decision, and who were almost sure to be 
 Councillors, might discuss but not vote on the appeal. 
 
 1 I'rof. E. 1.. WJiitney ; Governmont of tho Colony of S. C, Johns Hopkins 
 University .Studies in Historieal and Political Science, Series Thirteen, I.-II., 
 45. 
 
 2 The amounts given above apply to the third quarter of the 18th century. 
 At an earlier date they were £100 and £300 respectively in appeals to the 
 Ooveruor or to the King. r ^ t-t-
 
 HIS MAJESTY'S COUNCIL. 19 
 
 Thus every one fit to sit in a court of error was 
 likely to be excluded.' 
 
 But this is mere dry parchment, more futile than 
 Locke's Fundamental Constitutions. The chief interest 
 is not what the King desired the constitution of South 
 Carolina to be, but what it really was. In 1770, 
 Lieutenant Governor Bull says, in writing to the 
 ministry, ' 'Application was made six or seven years ago 
 to this jurisdiction ; but as it had never been experienced 
 here," information was sent for to some of the northern 
 provinces, and meantime the case was dropped ; so that, 
 says Bull, that jurisdiction remained at that time 
 untested.- Certainly no appeal was ever tried after 
 1770. For reasons that will appear in considering the 
 Circuit Court Act of 1769 appeals after that went into 
 effect were rendered more unlikely than before to 
 occur. ^ 
 
 Thus their judical duties were actually only of a 
 chancery character. These functions were constantly 
 exercised by the Governor and Council as the only 
 chancery court in the province."* Great inconveniences 
 arose from the fact that the legal members, attorney 
 general included, were often engaged as counsel in the 
 cases it was their constitutional duty to judge. ^ 
 
 It was this mixed character, mixed in personnel 
 
 1 Pub. Rec. S. C MS., XXXI V., 302-4, ?? 52 and .53 of Instructions; XIV., 
 187, 5J71,72, 73. 
 
 2 Pub. Rec. S. C, MS., XXXII., 37.5. 
 
 3 The Council Journal for 1765 contains a paper by Attorney (ieneral John 
 Kutledge, written at the request of the Council, explaining tliat, in his opin- 
 ion, it was the intention of the instructions that appeals should be called up by 
 writ of error In sucli and such a style. Quite lilcely tliis paper was connected 
 with the same case we luive just seen cited by Lieutenant-Governor Bull. 
 Council Jour., XXXII., .507-12. 
 
 4 Council Jour. S. C, MS., XXXVIII., 210; i'ub. Rec. S. C, MS., any Gover- 
 nor's instructions; newspaper advertisements, etc. 
 
 5 Pub. Rec. S. C, MS., XXXII., 375.
 
 20 CONSTITUTIONAL HISTORY OF S. C. 
 
 and in function, that brought upon the Council its never 
 ceasing woes. In the later years of the royal govern- 
 ment, its administrative duties were fast absorbing its 
 legislative. This, coupled with the fact that George 
 III.'s autocratic policy filled it with subservient place- 
 men, holders of the various provincial offices in his gift, 
 makes its Journals more like the minutes of an executive 
 board than the records of a house of the legislature. 
 Nothing can better emphasize its unfitness to make laws 
 for South Carolina than the following description of its 
 condition on the 19th of December, 1774:^ 
 
 William Bull, Lieutenant-Governor. 
 
 Sir Egerton Leigh, Attorney General ; absent in 
 England five months. 
 
 Daniel Blake ; absent in England over two years. 
 
 John Burn ; ditto. 
 
 Thomas Skottowe, Secretary. 
 
 Thomas Knox Gordon, Chief Justice ; absent on 
 circuit nearly ten weeks in the year. 
 
 W. H. Drayton ; a South Carolinian, who was later 
 expelled for his defence of American liberty. 
 
 Bernard Elliott ; South Carolinian, who resigned 
 when the agitation against the mother country grew 
 strong, in 1775. 
 
 Thomas Irvin, Receiver General of His Majesty's 
 Quit Rents. 
 
 John Stuart, Superintendent of Indian affairs ; "'an 
 ambulatory Councillor." 
 
 John Drayton is temporarily ignored, as he never at- 
 tended, being very old. There were thus two vacancies. 
 
 1 Pub. Kec. S. C, MS., XXXIII., 228: XXXVI., 279.
 
 CHAPTER V. 
 
 The Courts Before 1769. 
 
 The equity court has been treated above, in connec- 
 tion with the Council. The further judicial system 
 of the colony before 1769 was organized as follows: 
 
 I. The King in Council. 
 
 II. The Governor and Council. 
 
 III. Court of common pleas and general sessions. 
 
 IV. Justices of the peace. 
 
 V. Courts for the trial of slaves and other persons 
 of color. 
 
 VI. Ordinary. 
 
 I. and II. were never used in South Carolina. They 
 have been described above at pp. 18-19. 
 
 III. Until 1769, or more properly 1772, there was 
 but one court of general sessions and common pleas 
 in South Carolina ; this met only in Charleston. Much 
 of the time it was presided over by the chief justice 
 alone. Four assistant judges were allowed, though 
 much of the time none, or almost none, existed. In 
 1765 there was a chief justice and one assistant, or 
 associate judge; from 1766 on there was a full bench.' 
 
 All the judges sat on the same bench and had 
 an equal voice. The complete control of the court 
 which this gave the assistant judges, who were before 
 1772 generally if not always South Carolinians, and the 
 way in which they used it in controverting the Stamp Act 
 
 1 Com. Jour. S, C, MH., XXXVII., pt. II., 97 ; Pub. Rec. 8. C, MS., 
 XXXI., 99.
 
 22 CONSTITUTIONAL HISTORY OF S. C. 
 
 led Governor Lord Montagu to recommend that some 
 steps be taken to curb their growing power and increase 
 that of the chief. ^ A robe and a wig could not change 
 Englishmen from Englishmen and South Carolinians 
 from South Carolinians ; so we may expect to find vio- 
 lent altercations and outright squabbles among the high 
 priests in justice's own temple. 
 
 The chief justice was nearly always an imported 
 Englishman. The native South Carolinians who filled 
 the position of assistant before the Act of 1769 went in- 
 to effect were generally not bred to the law, but, says 
 Lieutenant Governor Bull, were gentlemen recommend- 
 ed solely by their integrity and common sense. We 
 can understand how a trained English barrister, striving 
 to uphold the royal prerogative by the letter of the law, 
 and four South Carolinians equally determined to main- 
 tain colonial liberties by common sense, would often 
 clash. 
 
 IV. In the period under consideration we find the 
 term "justice of the peace and quorum." In some com- 
 missions the words "and quorum" did not appear. The 
 difference was that for certain purposes a justice of the 
 peace and quorum was required, and that a justice 
 simply of the quorum exercised notorial rather than 
 judicial duties. The distinction is no longer made. 
 
 From the settlement of the colony justices of 
 the peace were important officials, because of their 
 special jurisdiction over slaves and persons of color, and 
 because of the lack of courts of superior jurisdiction out- 
 side Charleston. The Assembly was constantly striving 
 to make them as effective and as useful to the colony as 
 possible. 
 
 1 Pub. Rec. S. C, MS., XXXI., 80.
 
 COURTS BEFORE 1769. 23 
 
 In 1765 the jurisdiction of justices of the peace 
 in civil cases extended to ^20 currency.^ The changes 
 of detail are too numerous to specify. 
 
 A point of importance is that two justices, one 
 being of the quorum, might grant habeas corpus." 
 They could also grant bail in may cases. ^ 
 
 Slaves and "servants" being maltreated or neglect- 
 ed might complain to a justice of the peace, who, some- 
 times alone, sometimes with two freeholders, had 
 authority to warn the master or overseer, and on a 
 second offence to punish.'* 
 
 The Governor, acting for the King, appointed 
 justices of the peace during pleasure, and on the advice 
 of the Council suspended them for due cause. Yet the 
 Assembly made all laws by which they were governed. 
 
 The jurisdiction of justices of the peace was confined 
 to their own district or county. In 1765 there were 
 250 justices.'' Further matter of importance regarding 
 these officers is found under the next head. 
 
 V. So early as 1690 we find Seth Sothel's name 
 affixed to a law for establishing courts to try slaves. 
 There were no juries, no records, and no report to any 
 authority. Two magistrates and three freeholders had 
 absolute and final jurisdiction. The owner was com- 
 pensated for the loss from execution of his human proper- 
 ty. This system continued as the method for the trial 
 of slaves until the Civil War. 
 
 In 1740 the freeholders were fixed at not less than 
 three nor more than five.*^ Trial was summary, and 
 
 1 statutes at Large of S. ('., HI., 2(i8. 
 
 2 Statutes at Large ofS. C, IL, 400. 
 
 3 lb., II. , 452, -182. 
 
 4 lb., III., 17. 
 
 5 S. (.'. Gaz., Oct. 19-31, 1765. 
 
 6 Statutes at Large of S. C, VIL, 345, 400.
 
 24 CONSTITUTIONAL HISTORY OF S. C. 
 
 execution of sentence without delay or appeal. 
 
 One magistrate and two freeholders could form 
 a court for the trial of offences whose punishment 
 did not extend to loss of life or member. Prescrib- 
 ing punishments less than death was in the power of 
 the judges. 
 
 VI. Some notice may be inserted here of the 
 court of probate, or ordinary, as it was called. Until 
 1799 there was in South Carolina but one ordinary. 
 His office was in Charleston.^ 
 
 The government of the colony of South Carolina 
 was more defective in the organization of its judiciary 
 than in any other respect. For this reason the forma- 
 tion of a proper system was afterwards found to be the 
 most perplexing constitutional problem of the early 
 years of statehood. 
 
 Such an epoch making change, involving so much 
 before and after it in South Carolina history, took place 
 in the court system with the Act of 1 769 that a separate 
 chapter must be given to that Act, the causes which pro- 
 duced it, and the place which it occupies in the develop- 
 ment of the State. 
 
 1 statutes at Large of S. C, VII., 294.
 
 . CHAPTER VI. 
 
 Regulators, and the Circuit Court Act 
 of 1769. 
 
 In a day of no railways, when the greater part of 
 South Carolina was an almost roadless wilderness, to 
 have but one court, and that in distant Charleston, left 
 most of the province largely deprived of the adminis- 
 tration of justice. During the second quarter of the 
 1 8th century, ^ the back country began to swarm with 
 immigrants. The ever increasing tide, southward from 
 Pennsylvania and the intervening colonies along the 
 mountain walls, and across the sea through Charleston, 
 together with the natural growth of a very fecund popu- 
 lation, gave the back country, even before the Revolu- 
 tion, as compared with the low country, a majority. 
 By 1790 this amounted to four to one. In 1769 the 
 balance was about even or had already turned.' 
 
 In this back country was building the future yeo- 
 manry of the commonwealth; there were coming to im- 
 portance the families who were to form a newer aristo- 
 cracy, whose names now appear extensively in the 
 nomenclature of the counties of the State. These peo- 
 ple were to take their first share in the overt history of 
 their country in the Revolution, and were finally to 
 capture and rule the commonwealth, in spite of the 
 oligarchic coast element which kept them so long unre- 
 cognized. There was much that was noble in this young 
 
 1 Pub. Rec. S. C, MS., XXXII., 122.
 
 26 CONSTITUTIONAL HISTORY OF S. C. 
 
 society; but as in all new communities, there was much 
 that was bad. This was aggravated by the fact that 
 under the system of centralization which prevailed in 
 South Carolina, the back countrymen could not take a 
 part of the government with them as in states where 
 every local group is an automatic governmental unit. 
 Population had run ahead of government. 
 
 In 1767 one hundred and fifty, or some said even 
 fifteen hundred men had bound themselves into a league 
 to defy the law.^ These had their places of rendezvous, 
 where they concocted their depredations, and when at- 
 tacked gathered in such numbers as to defy the weak arm 
 of justices of the peace and deputy sheriffs. When the 
 provost marshal, the militia, the British regulars, and 
 the posse commitat'iis marched out to bag a gang of 
 outlaws, it was like the meeting of two small armies.^ 
 
 Since the magistrates could not, and the King's 
 court in Charleston either would not or could not pro- 
 tect them against such villians, said the back country- 
 men, the good citizens combined into companies called 
 "regulators." The regulators succeeded to a great ex- 
 tent in suppressing the lawless element. Violence and 
 riots, however, continued to occur; for about a year and 
 a half before the fall of 1768 they were especially 
 tumultuous.'' In the eye of the law the regulators were 
 of course always outlaws. Suits were brought by per- 
 sons whom they had whipped ; but the whippers refused 
 to be arrested. Deputy sheriffs riding out to arrest 
 them were themselves liable to be captured and 
 
 1 Pub. Rec. S. C, MS., XXXI., 122. 
 
 2 Pub. Rec. S. C, ;MS., Vol. III. ol'the extra numbers including the lost 
 Journals, 596, 638. 
 
 3 Pub. Rec. S. C.,!MS., XXXII., 36 et sq.
 
 REGULATORS, COURT ACT ijdg. 27 
 
 sentenced by the regulator "courts" to be chastised.^ 
 
 As early as 1754, and perhaps before, the back 
 countr3men were sending in petitions for courts and for 
 the redress of other grievances that they continued to 
 mourn under until after the Rovolution."-^ The grand 
 jury of the province took it up. At least as early as 
 1765 Lieutenant Governor Bull recommended that 
 courts be established in the back country. The Com- 
 mons were willing. A proposition to establish county 
 and precinct courts was defeated, but they voted to 
 establish circuit courts. These were to be instituted 
 at four places: in Granville and Craven counties, and at 
 Congarees and Waterees. On March the 28th this bill 
 passed the second reading and by a vote of 16 to 15 
 was sent to the Council.^ 
 
 As before remarked, the Council Journal for this 
 period is an administrative record book. Only rarely 
 does it make mention of anything legislative. No allu- 
 sion is found there to this Act. It never came back to 
 the Commons for a third reading, and the inference is 
 that it met its death in the other body. 
 
 In 1766 the Commons again appointed a commit- 
 tee to draft another bill.^ But not until April 12, 1768, 
 did such an act run the triple gauntlet of Commons, 
 Council and Governor; and then a fourth power was 
 ready to strike it dead at the goal. The King forbad. 
 
 Great was the chagrin at this unexpected rebuff, 
 
 1 E. g., Council Jour. S. C, MS., XXXIV., US, 189 et sq., 219 et sq., also 
 XXXII., 36 et sq. 
 
 2 Pub. Rec. S. C, MS., XXVI., 119; Com. Jour. S. C, MS., XXXVIII., .SO. 
 
 3 Com. Jour. S. C, MS., XXXVII., pi. I., 3, 81, 74. It was common till long 
 after the Revolution to send a bill from one House to the other after a second 
 reading. If passed in the second House, it was returned to the first for a third 
 reading. 
 
 4 Com. Jour. S. C, MS., XXXVII., pt. II., 237; XXXVIII., 11.
 
 28 CONSTITUTIONAL HISTORY OF S. C. 
 
 involving the peace of nearly the whole province and the 
 well-being of all. The disorders in the back country 
 had subsided in expectation of relief, and now were they 
 again to be thrown indefinitely into anarchy ?^ The As- 
 sembly reenacted their court bill, and on July 22, 1769, 
 the whole Commons House carried it to the Governor 
 and desired him to sign. Governor Lord Montagu re- 
 plied that his instructions made it impossible; he was 
 very sorry; he was sick; he would soon be sailing for 
 England, where he would do all in his power in their 
 interests. 
 
 The Commons were surprised; they were hurt; they 
 talked of "anarchy" and "ruin." Four thousand back 
 countrymen were threatening to come a hundred and 
 fifty miles and capture the polls and force a due atten- 
 tion to their claims." 
 
 We remember the steady policy of the King to force 
 the colonies to settle fixed salaries attached to the royal 
 offices. A salary law once passed, his appointees would 
 be safe; a proper use of the prerogative of prorogation and 
 a subservient Council might forever prevent its repeal. 
 But under the system of giving each officer individually 
 a certain amount each year, prorogation meant no pay; 
 for no continuous salary law provided a steady stream 
 of cash. But here at last Majesty had Commons upon 
 the hip. The Governor sorrowfully informed the House 
 that he was imperatively forbidden to sign any Act that 
 did not leave to the King the appointment of. sheriffs 
 through the Governor and Council and attach regular 
 salaries to the offices, and not to the particular persons, 
 of attorney-general and clerk of court. ^ 
 
 1 Com. Jour. S. C, MS., XXXVII., pt. II., 698. 
 
 2 Pub. Rec. 8. C, MS., XXX., 122. 
 
 3 Com. Jour. S. C., XXX VIII., 74, 78.
 
 REGULATORS, COURT ACT 1769. 29 
 
 And then to allow a quiet digestion of this lump, 
 the Governor issued his proclamation proroguing the As- 
 sembly for half a day. In the morning came a polite 
 message explaining the prorogation and desiring the 
 House to frame another bill, free from those objections. 
 The House proceeded to try again. On July 29, 1769, 
 was passed the Act which, obviating except in one par- 
 ticular the King's objections, was able on the 29th of 
 November following to obtain the royal approval. On 
 February 21, 1770, the King's assent was announced, 
 the House set the printing press to work turning out the 
 money, and work was at once commenced on the court 
 houses and jails.' On May 19, 1772, Lieutenant Gov- 
 ernor Bull issued his proclamation that all was ready for 
 the law to go into effect; on May 30 the judges appoint- 
 ed the sheriffs, and in November, 1772, was held the 
 first court of common pleas and general sessions ever 
 convened in South Carolina outside the city of Charles- 
 ton.^ 
 
 Pari passu with the Circuit Court Act went the re- 
 form of the shrievalty. There had been one provost 
 marshal for the whole province, a capital grievance, 
 which the Commons carried to the very foot of the 
 throne. The ofBcer was a royal patentee and the office 
 was personal property, transmitted, sold or gambled 
 
 I Com. .lour. K. C., MS., XXXVIII., 274 ; Couiu-il Jour., MS., XXXV., 2{t. 
 
 2S. C. Gaz , May 28, 1772; Dec. 10, 1772. In the Statues at Largo of S.C., in ten 
 volumes, the first part edited by Dr. Thos. Cooper, the latter by Dr. IXavid J. 
 McC'ord, this law, which occurs at VII., 203, is dated by Dr. McCord ,\pril 12, 
 1768. The history of the Act as recouuted ubove shows the mi.stake of this. 
 Theactof 1768 was vetoed by the King. The Act given by Pr. McCord is the 
 one passed in 176)t and approved by the King, for it conforms to the royal re- 
 quirements, except that not the Governor, but the judges, tliemselves royal 
 appointees, should appoint the sherifTs. Judge Brevard in his sivetch of the 
 legislative history of South Carolina gives 1769 as the date of the .\ct. He Is 
 quoted at length in the prefatory portion of the Statutes at Large, I., 431. 
 This volume is edited by Dr. Cooper.
 
 30 CONSTITUTIONAL HISTORY OF S. C. 
 
 with under certain limitations.^ The holder at this time 
 was Richard Cumberland, who had never been in South 
 Carolina, and who exercised his lucrative sinecure 
 through Roger Pinckney, his deputy." In 1768 the As- 
 sembly appropriated ;^3 5. 000 currency, equal to ^5,000 
 sterling, to recompense Mr. Cumberland for the aboli- 
 tion of his oiBce, the money to be paid when the King 
 should assent to the Circuit Court Act. Thus like 
 mediaeval burghers did the South Carolinians buy this 
 liberty. "^ 
 
 The Circuit Court Act of 1769 divided the pro- 
 vince into seven districts, in each of which the common 
 pleas and general sessions were held twice a year, ex- 
 cept in Charleston, where they were held three times. 
 Each district had its own sheriff, a resident within its 
 bounds, who was appointed by the judges. Under the 
 permission granted the judges to make reasonable rules, 
 they divided the six districts out of Charleston into two 
 circuits and apportioned them among themselves. 
 Camden, Cheraws and Georgetown were called the 
 Northern Circuit; Orangeburg, Ninety-Six and Beaufort, 
 the Southern.'' Two judges rode each circuit; often two 
 sat on the same bench . 
 
 All seven courts were of like jurisdiction and power. 
 Yet a distinction was given to that in the capital; in 
 civil causes all writs and process issued from and were 
 returnable to the court of common pleas in Charleston 
 through the sheriff of the district concerned, and all pro- 
 ceedings were conducted in that court until issue was 
 joined. The actual trying of the case was then con- 
 
 1 Pub. Rec. S. C, XXVIII., 195, 197. 
 
 2 Pub. Rec. S. C, MS., XXX., 124; XXXI., 236, 251. 
 
 3 Com. Jour. S. C, MS., XXXVII., pt. II., 661, 675. 
 
 4 S. C. Gaz., Dec. 10, 1772 ; Dec. 20, 1773.
 
 RE G ULA TORS, COUR T ACT 1769. 3 1 
 
 ducted in the district in which it arose. ^ In 1769 this 
 promised to be convenient for the judges, and more- 
 over the fees poured into Charleston. The practice was 
 found to be such a hardship that in 1789 it was abohsh- 
 ed and every court was given complete control of its own 
 writs and process.^ 
 
 The importance of the Act of 1769 was threefold. 
 First, it was the greatest step that had ever been taken 
 for the elevation of the back country. Almost imme- 
 diately the Lieutenant Governor wrote to England that a 
 wonderful improvement had been wrought in the life of 
 the people. Second, it drew the up country and the 
 low country together. Lawyers and judges returning 
 from the first circuit expressed themselves as amazed at 
 what they had learned of these up countrymen, who, 
 they said, would with proper advantages make as fine a 
 population as any upon earth. ^ Third, it was really the 
 first governmental organization of that larger part of the 
 province outside the old parishes. The seven judicial 
 districts were the basis of all later subdivisions. Thus 
 this measure was the parent of all administration of gov- 
 ernment in the greater part of South Carolina ; and 
 when, in the fulfilment of an ideal republicanism, a 
 politically educated people manage the whole of their 
 local affairs in townships, the completed system must 
 look back to the act of 1 769 as its first ancestor. 
 
 1 statutes at Large of S. C, VII., 200. 
 
 2 Statutes at Large of S. C, VII., 253. 
 
 3 S. C. Gaz., Dec. 10, 1772.
 
 CHAPTER VII. 
 
 The Stamp Act. 
 
 The latent determination of the people of South 
 Carolina to resist even the authority of Parliament if 
 that authority touched upon their rights was first brought 
 to expression in the resistance to the Stamp Act. This 
 chapter in the history is so different from all else treated 
 of in the present study, except in the underlying princi- 
 ple of the assertion of the right to be self-governed, 
 that to insert it in chronological order among the events 
 which are next to occupy our attention would break the 
 continuity of development in the consideration of the 
 purely internal history. The Stamp Act agitation 
 serves tnorever more satisfactorily than any other event 
 to exhibit in action the government whose outlines we 
 have sketched. 
 
 South Carolina was driven by England from her 
 attachment to the mother country. The Stamp Act 
 precipitated the struggle which in one short decade was 
 to eventuate in the most sincere devotion to the parent 
 state being supplanted by an irreconcilable antagonism. 
 
 The Stamp Act was to go into effect on November 
 I, 1765. On October 18 the ship bearing the stamps 
 and stamped paper arrived in Charleston harbor. The 
 provincial press had for weeks been full of agitation 
 against the law. Such a state of hostility was manifest 
 in the public mind that Lieutenant Governor Bull se- 
 cured the papers in Fort Johnson and strengthened the
 
 THE STAMP ACT. 33 
 
 garrison. In Charleston popular feeling began its visi- 
 ble demonstrations on the morning after the arrival of 
 the stamps, when effigies and threatening placards ap- 
 peared at the most conspicuous places in the city. 
 
 Processions, concourses, manifestoes, threats against 
 the stamp officers, continued for nine days. These gen- 
 tlemen had taken refuge in the fort, under the same pro- 
 tection as the detested stamps. The continued demon- 
 strations awed the officers into submission, and on Sun- 
 day evening, October 27, a renunciation by them of their 
 positions was read to the Assembled populace. It was 
 greeted with long continued shouting and the ringing of 
 the bells unmuffled for the first time since the i8th. 
 
 On the next morning, Monday the 28th, St. 
 Michael's great steeple was again jubilant and chimed 
 as for a holiday. A number of citizens went to the 
 fort and returned with the stamp officers, Messrs. Saxby 
 and Lloyd. At noon they landed from a boat bearing 
 in its bow a "union flag" with laurel on the staff, and in 
 the centre, "Liberty." At the wharf were gathered 
 seven thousand people, it was estimated, the largest con- 
 course ever assembled in the province. There was read 
 a new and most explicit declaration signed and sealed 
 by Lloyd and Saxby not to exercise any duties of stamp 
 officers nor to aid or countenance such exercise by any 
 other person until Parliament had acted on the united 
 petition of all America. At this, the people shouted 
 and reshouted; the bells rang; hautboys, drums and 
 violins sounded; the ships displayed their colors and the 
 cannon boomed. 
 
 That night the streets were patrolled for the pro- 
 tection of the persons and property of the two obnox- 
 ious officials; but the people, their object accomplished,
 
 34 CONSTITUTIONAL HISTORY OF S. C. 
 
 desired no violence.^ 
 
 The part played by the unorganized populace must 
 not be underestimated. It was this inflexible and all 
 but universal determination to prevent, even by unlawful 
 violence, the execution of the Act which made possible 
 the splendid stand taken by the Commons House of As- 
 sembly and the successful and revolutionary course of 
 the court of common pleas in rendering the law nuga- 
 tory. In all reason, the state of the popular mind 
 should be considered first, as the dynamic source from 
 which all the other organs d^ived their power. 
 
 Lieutenant-Governor Bull expressed to the ministry 
 his apprehension that the Assembly would take measures 
 repugnant to the Parliament of Great Britian. In this 
 he was no bad prophet, as "certain resolutions declara- 
 tory of what they conceived to be their rights with re- 
 gard to taxation in America" abundantly proved. In 
 vain hopes, the Lieutenant-Governor ordered a dissolu- 
 tion; but a new election returned the same old leaders. 
 Dissolutions never helped the royal cause. 
 
 South Carolina was one of the nine colonies rep- 
 resented in the Stamp Act Congress at New York in 
 October, 1765. When the Assembly met on November 
 25, the first four days were devoted to the report of the 
 returned delegates, who were thanked "for the services 
 they had done their country."^ On the 29th the House 
 appointed Christopher Gadsden, Charles Pinckney, John 
 Rutledge, James Parsons and Thomas Wright a com- 
 
 1 S. C. Gaz., Oct. 19-31, 1765. Not only is there no foundation for the tradi- 
 tion published in several places that Ft. Johnson was captured and the stamps 
 Iniiuediately sent back to H^ngland as an alternative to burning them, but the 
 contemporary newspaper accounts, the official correspondence of Lieutenant- 
 Governor Hull, the reports of Chief Justice Skinner, the records of the Court 
 of Conijuon Pleas, all very full, contradict the possibility of such a thing. 
 
 2 Com. Jour. 8. C, MS., XXXVII., pt. II., 15, et sq.
 
 THE STAMP ACT. 35 
 
 mittee to draft suitable resolutions. Their report, made 
 and adopted that same day, forms a bill of rights so no- 
 ble in logic and conception, as it moves with redoubled 
 strength from hight to hight, that it must ever have a 
 place in the constitutional history of South Carolina: 
 
 "This House, sincerely devoted, with the warmest 
 sentiments of devotion and duty, to His Majesty's per- 
 son and government, inviolably attached tD the present 
 happy establishment of the Protestant succession, and 
 with minds deeply impressed by a sense of the present 
 and impending misfortunes' of the people of this prov- 
 ince, esteem it their indispensable duty to their constit- 
 uents, to themselves, and to posterity, to come to the 
 following resolutions respecting their most essential 
 rights and liberties, and the grievances under which they 
 labor by reason of several late acts of Parliament. 
 
 "1st. Resolved, That His Majesty's subjects in 
 this province owe the same allegiance to the crown of 
 Great Britian as is due from his subjects born there. 
 
 "2d. That His Majesty's subjects in this province 
 are entitled to all inherent rights and liberties of his nat- 
 ural born subjects within the kingdom of Great Britian. 
 
 "3d. That the inhabitants of this province appear 
 also to be confirmed in all the rights aforementioned, 
 not only by their charter, but by an Act of Parliament 
 of the 13th George H. 
 
 "4th. That it is inseparably essential to the free- 
 dom of the people and the undoubted right of English- 
 men, that no taxes be imposed upon them but with their 
 consent given personally or by their representatives. 
 
 "5th. That the people of this province are not 
 and from their local circumstances cannot be represented 
 in the House of Commons of Great Britian, and further
 
 36 CONSTITUTIONAL HISTORY OF S. C. 
 
 that in the opinion of this House the several powers of 
 legislation in America were constituted in some measure 
 upon the apprehension of this impracticability. 
 * "6th. That the only representatives of the people 
 of this province are persons chosen therein by them- 
 selves, and that no taxes ever have been, or can be, con- 
 stitutionally imposed upon them, but by the legislature 
 of this province. 
 
 "7th. That all supplies to the crown being free 
 gifts of the people, it is unreasonable and inconsistent 
 with the principles of the British constitution for the 
 people of Great Britian to grant to His Majesty the 
 property of the people of this province. 
 
 "8th. That trial by jury is the inherent and inval- 
 uable right of every British subject in this province. 
 
 "9th. That the late Act of Parliament entitled 
 *An Act for granting and applying certain stamp duties 
 and other duties on the British colonies and plantations 
 in America, etc.,' by imposing taxes on the inhabitants 
 of this province, and the said Act and several other acts, 
 by extending the jurisdiction of the courts of admiralty 
 beyond its ancient limits, have a manifest tendency to 
 subvert the rights and liberties of the people of this 
 province. 
 
 "1 8th. That it is the right of the British subjects 
 in this province to petition the King or either House of 
 Parliament. 
 
 "Ordered that these votes and resolutions be signed 
 by the Speaker and printed and made pubHc, that a just 
 sense of liberty and the firm sentiments of the loyalty 
 of the representatives of the people of this province
 
 THE STAMP ACT. 37 
 
 may be known to their constituents and transmitted to 
 posterity. "* 
 
 Note the calm, irrefragible logic, strengthening the 
 position with each advance, until the climax in numbers 
 6 and 7. The first two resolutions are astute. Num- 
 ber I lays it down that the South Carolinians owe the 
 same allegiance to the King as natural born subjects in 
 Great Britian; number 2 claims as a necessary conse- 
 quence all the rights of those native born Englishmen. 
 The committee that presented these resolutions con- 
 tained three men of national reputation in the Revolu- 
 tionary period; a bill of rights three of whose five 
 framers were Christopher Gadsden, Charles Pinckney 
 and John Rutledge is no insignificant document. 
 
 The Stamp Act early got into the courts in South 
 Carolina. The struggle there was intensified, because 
 the royal and home rule elements in the provincial gov- 
 ernment met there on the same plane and in perfect an- 
 tagonism. On November 13, 1765, Chief Justice Skin- 
 ner,"^ who since his arrival from England had presided 
 alone, ordered that without stamps no legal business 
 could be done, and adjourned the court. In this court, 
 however, was to be fought the best strategic battle of 
 the constitutional struggle. 
 
 Riots, insults and threats against royal of^cers con- 
 tinued. It became unsafe for anyone who failed to join 
 the demonstrations, or to at least give tacit approval. 
 Chief Justice Skinner opposed a bolder front to the pop- 
 
 1 Com. Jour. S. C, MS., XXXVII., pt. II., 26-;il. 
 
 2 .ludge O'Neal, in his "Beudi and Bar of S. C," spells this name "Shinner," 
 and says he so finds it in the court records. Those records are not now in ex- 
 istence, except sucli extracts as are found in other documents. The Public Kec- 
 ords of S. C, copied in England, and the Commons House and the Council 
 Journals, all manuscript, uniformly spell it "Skinner."
 
 38 CONSTITUTIONAL HISTORY OF S. C. 
 
 iilar fury than all the rest of the government combined. 
 He was violent and implacable to carry out the Stamp 
 Act so far as lay in the power of a single man. Against 
 him, indignation was trebly strong. Demonstrations 
 and turbulent assemblies about his house became so 
 serious that his family slept with arms at their beds. 
 
 The stamps lay in Ft. Johnson and none dared touch 
 them. The South Carolina newspapers appeared as usual 
 on plain paper with the words in large letters across the 
 top, "No STAMPED PAPER to be had. " Business was 
 congested. "Though (their interest) is greatly affected 
 by it," wrote Lieutenant Governor Bull to the Lords 
 of Trade, "that inconvenience is submitted to however 
 with great perseverance and constancy. The courts of 
 common law, admiralty and ecclesiastical jurisdiction 
 are all silent; no grants of land are passed; all the ships 
 remain in ihe harbor as under an embargo; every trans- 
 action requiring stamps is at an end."^ 
 
 The harbor of Charleston was a trap into which 
 ships entered but could obtain no clearance papers to 
 get out. By February, 1766, sailors had accumulated 
 to the number of fourteen hundred, about one-fourth 
 the normal population of the town. In December, 
 1765, Lieutenant Governor Bull allowed a ship to clear 
 without stamped papers to take food to the troops. The 
 people seized on this, and demanded so tumultuously the 
 same privilege for every ship that violence was immi- 
 nent. The first sheep had jumped, and all must follow. 
 The forbearing Lieutenant-Governor, loyal Tory though 
 he was, conceded that captains might leave without for- 
 mal clearance papers, but with a "permit," for which 
 
 i Bull to the Board of Trade, Pub. Kec. S. C., MS., XXX., 299.
 
 THE STAMP ACT. 39 
 
 they paid the same amount that stamps on clearance 
 papers would have cost.' 
 
 Dammed up popular feeling is like dammed up 
 waters ; an outlet may relieve the pressure, or it 
 may be but an opening for tearing every obstacle to 
 destruction. The latter was now the case. Lawyers, 
 merchants and populace determined that. Skinner 
 and the Parliament to the contrary notwithstanding, 
 the courts must act. Chief Justice Skinner had 
 on November 13, 1765, declared that no business 
 could be done without stamps, and therefore adjourned 
 court to March 3, 1766. The gentlemen of the 
 bar waited upon his Honor and desired to present a pe- 
 tition praying that business might be conducted with 
 ordinary unstamped paper. This petition was, perhaps, 
 one degree bolder in its assertion of American liberty 
 than any other utterance in South Carolina. The law- 
 yers now, as on many noteworthy occasions in the his- 
 tory of England and America, vindicated their title to a 
 place among the foremost leaders and boldest cham- 
 pions of constitutional liberty. We "have ever 
 thought," they say, "the principal excellency of the 
 British constitution consists in the subject's not being 
 bound by any law to which he himself doth not con- 
 sent by his representative. " We claim our rights, they 
 continue, under "Magna Charta, the Petition of Right, 
 etc., ... which were made of force here 
 
 by Act of our Assembly. . . . We cannot 
 
 think ourselves bound by the Stamp Act, which annihil- 
 ates our natural as well as constitutional rights. "- 
 
 But learning that there was no hope of the judge's 
 
 1 Bull to the ministry, Feb. 6, 1766; Pub. Rec. S. ('., MS., XXXI, 23-25. 
 
 2 Pub. Rec. S. C, MS., XXXI., 225.
 
 40 CONSTITUTIONAL HISTORY OF S. C. 
 
 granting their petition, they hit upon a strategy. In 
 1765 the bench of common pleas and general sessions in 
 South Carolina consisted practically of Chief Justice 
 Charles Skinner. Four assistant judges were allowed, 
 but only one was in commission, Robert Pringle, who 
 scarcely ever appeared in court. Two, four and five 
 days respectively before the 3d of March, 1766, the 
 appointment was secured from the Lieutenant Governor 
 of three assistant judges. These were sworn in secretly, 
 without the knowledge of Judge Skinner. When, on the 
 morning of the 3d of March, the Chief Justice walked 
 into the court with his opinion snugly prepared, like a 
 loaded bombshell that would shatter the last charge of 
 the enemy, he was astonished to see Messrs. Rawlins 
 Lowndes, Daniel Doyley, Benjamin Smith and Robert 
 Pringle take their seats beside him. " I knew how it 
 would go with me," he says. From that moment the 
 assistants became the digits and the chief justice the ci- 
 pher, adding importance to the whole, doubtless, but 
 individually having no significance whatever. 
 
 Mr. Bee, attorney for the plaintiff in Jordan vs. 
 Law, moved for judgment by default, as the defendant 
 had not appeared. Questions arising, a division of the 
 bench was observed in the uniform proportion of one to 
 four, Mr. Chief Justice in the minority maintaining a 
 lonesome isolation. All the leading lawyers spoke in 
 favor of proceeding without stamped paper. A petition 
 from almost one hundred Charleston merchants urged 
 earnestly the same prayer, as their prosperity was 
 being ruined. 
 
 The court reserved its opinion and adjurned to 
 April I. On that day the decision was rendered. The 
 court decided that, since it was against Magna Charta
 
 THE STAMP ACT. 41 
 
 to deny or delay justice, as it was impossible to obtain 
 stamps, business should proceed on plain paper despite 
 the Act of Parliament. The clerk was therefore ordered 
 to issue judgment. But this official refused, and drew 
 down upon himself immense judicial thunders in a peti- 
 tion for removal, and' a lightning stroke of a fine of 
 ^100 proclamation money. He feared to violate an Act 
 of Parliament that launched special penalties against 
 clerks of court in particular who should dare to disobey 
 its provisions. But the Lieutenant Governor declined to 
 suspend Mr. Campbell, and Majesty graciously remitted 
 his fine. 
 
 As Campbell refused to issue papers, Mr. William 
 Mason was appointed by the court as clerk pro tonpore. 
 He feared not the King and Parliament. 
 
 Chief Justice Skinner read a contrary opinion and 
 handed it to the clerk to be entered in the records of the 
 court ; but the assistant justices refused to allow it to 
 be recorded.' 
 
 There iire two decisions during this period that have 
 an important bearing on the function of the courts to 
 judge Acts of the legislature by a supreme written con- 
 stitution. One is the opinion rendered by the attorney 
 general of England, William de Grey, in the ^10.500 
 matter, regarding the right of the Commons House of 
 Assembly by its sole vote to appropriate money ; the 
 other is the judgment of the common pleas court of 
 South Carolina on the Stamp Act. The former will 
 come up in its place. Let us see now how these South 
 Carolina judges came very near formally annulling an 
 Act of Parliament. 
 
 Chief Justice Skinner held that the Court had no 
 
 1 Pub. Rec. S. C, MS., XXXI., 106, 144 ; Council Jour.. MS., XXXII., 739-50.
 
 42 CONSTITUTIONAL HISTORY OF S. C. 
 
 power to question the authority of an Act of Parliament, 
 and that the plea of impossibility to get stamps was spe- 
 cious, since it was wholly impossible simply by the un- 
 lawful demonstrations of the people; it was a principle 
 of law, he said, that no man should derive benefit from 
 his own offense.^ 
 
 The assistant judges considered that certain parts of 
 Skinner's opinion implied reflections upon them ; they 
 therefore at the next sitting of the court. May 13, deliv- 
 ered through Mr. Justice Lowndes a long argument in 
 defence of their decision. There will be observed as the 
 groundwork of this paper an ingenious misapplication of 
 a principle of judicial interpretation of the common law 
 courts of England — i. e. the principle which Otis sought 
 to warp and extend in his argument against writs of 
 assistance, that an act of Parliament which is in the na- 
 ture of the case unreasonable or impossible of applica- 
 tion does not bind the courts. 
 
 Judge Lowndes maintained that since the stamp 
 distributor had forsaken his office, it was impossible to 
 obtain stamps. But the law neither requires impossibil- 
 ities, nor seeks to punish the innocent by closing courts 
 and other public offtces for the dereliction of an official. 
 Moreover, the object of the Act was to raise a revenue, 
 and not to stop courts. To do the latter because of the 
 impossibility of obtaining stamps would in no sense be 
 carrying out the intention of the Act. 
 
 The court went on to show that there are many in- 
 stances in which the operation of a law might be sus- 
 pended ; e. g., by the ist Edward II., breaking from 
 prison is a felony ; but if the prison be on fire, it is no 
 felony for the prisoners to break out. If a tailor, e. g., 
 
 1 Pub. Rec. S, C, MS., XXX., 54, 109 ; Council Jour., MS., XXXII., 745.
 
 THE STAMP ACT. 43 
 
 is ordered to make a coat, he rests under no obligation 
 to make it until he has been furnished with the cloth. 
 So this court is under no obligation to use the stamps so 
 long as the proper official refuses to furnish them. Mr. 
 Chief Justice maintains that it is no "act of God" that 
 makes the obtaining of stamps impossible. It certainly 
 is an act of God that all America is united in its deter- 
 mination not to pay the stamp tax! 
 
 All the business of the court was now carried on by 
 the assistant judges, and to them went all the fees. 
 Skinner writes that he was reduced to a French half 
 crown and eighteen pence English silver. He bought 
 the necessaries of life on credit. Every man to whom 
 he owed a bill seemed to make a run upon him. 
 
 On May 3, 1766, unofficial information arrived that 
 the Stamp Act was repealed. Popular demonstrations 
 were renewed, now not of sorrow, but of joy. On May 
 5, two days after the news, "the mob," says Skinner, 
 declared that they would insult any house not illuminated 
 that night in their grand demonstration. Skinner was 
 alarmed. His house was illuminated as a matter of 
 necessary precaution, and his only discomfort was that 
 "he was saluted between the hours of nine and ten 
 o'clock with cheers and huzzas and damns." 
 
 All the other King's servants, glad of an excuse, 
 seized upon the news of May 3d and opened their offices 
 of admiralty, chancery, etc. But not so Skinner. He 
 had only contempt for those who sought such loopholes 
 to escape the popular fury and yet not offend the King. 
 
 On July I, 1766, Skinner announced in court that 
 he had received such information as satisfied him of the 
 repeal of the Stamp Act, and that he was ready to pro- 
 ceed to business. The assistant judges refused to allow
 
 44 CONSTITUTIONAL HISTORY OF S. C. 
 
 his paper to be recorded. ^ Similarly the Chief Justice's 
 order rescinding his order of November 1 3 closing the 
 court was denied entry upon the book, since it would 
 have admitted the validity of the original order. ^ 
 
 Two of the King's servants requiring a word of com- 
 ment are Chief Justice Skinner and Lieutenant Governor 
 Bull. The Chief Justice, deprived of his income, the 
 most hated man in the province, and his personal safety 
 threatened, was yet perfectly unyielding in what he con- 
 ceived his duty. Violent and dictatorial though he was, 
 yet in this matter loyalty to his master and determina- 
 tion to preserve the British constitution as he understood 
 it controlled his acts. He is a type of the Englishman 
 sent over to maintain the royal prerogative.'^ 
 
 To judge of the position of Lieutenant Governor 
 Bull is less easy. Skinner was an Englishman and acted 
 dogmatically as an Englishman throughout. Bull's posi- 
 tion was one of weightier responsibility. Momentous 
 consequences depended upon whether he conducted him- 
 self with fanaticism or with prudence. Besides, he was 
 a native of South Carolina. We must consider how far 
 his official duty to the King laid him under uncompro- 
 misable moral obligation to do everything in his power to 
 secure the execution of the Stamp Act; how far wise com- 
 promise could go without becoming unfaithfulness to his 
 master ; how far sympathy with his neighbors might 
 justly influence him ; and how far he might look with 
 complaisance upon the overthrow of a law unwise and 
 
 1 Pub. Rec. S. C, MS., XXXI., 171-(i. 
 
 2 lb., 256. 
 
 3 On the address of the Commons House of Assembly, Governor Lord Mon- 
 tagu, with the advice of the (Council, suspended Hklnner in 1768, for ignorance 
 of the law and arbitrary conduct. He died while final investigation was pend- 
 ing. (Com. .Tour. S. C, MS., XXXVII., pt. II., 35; Pub. Rec. S. C, MS., 
 XXXII., 7.)
 
 THE STAMP ACT. 45 
 
 bad in every particular, violating his own rights as a cit- 
 izen and as a man and those of his fellow-countrymen. 
 He saved the stamps from destruction and conformed in 
 his own duties to the law. He refused to suspend Uugal 
 Campbell. But he appointed the three judges who he 
 doubtless knew were enemies to the Act, and he furnished 
 the official certification on which they based their decis- 
 ion, simply that "there were no stamps to be had." He 
 failed to do all he could have done as royal Lieutenant- 
 Governor to carry out the law. Tory though he was in 
 the Revolution, yet in 1766 he gave a great foothold to 
 the colonists in opposing the Stamp Act. All his utter- 
 ances were characterized by the greatest prudence, his 
 acts sometimes by firmness and sometimes by concilia- 
 tion. Had some violent Englishman been at the helm, 
 the royal government would have been steered much less 
 safely through the storm. 
 
 The people of South Carolina yielded not one jot or 
 tittle in the contest, unless allowing ships to pay for 
 "permits" be so considered. Says Lieutenant Governor 
 Bull, they considered that they were not only resisting a 
 burdensome tax, but were contesting for a principle for 
 the future.^ They blockaded and practically destroyed 
 the stamps ; they captured the courts and annihilated 
 there the authority of the crown, and they uttered a bill 
 of rights which, with those of sister colonies, formed the 
 prelude to the Declaration of Independence. 
 
 As a mark of their gratitude to the great English 
 champion of American liberty, the Commons House of 
 Assembly in May, 1766, voted i^5,ooo sterling for a mar- 
 ble statue of William Pitt for his exertions for the repeal. "-^ 
 
 1 Pub. Rec. S. C, MS., XXXI., 50. 
 
 2 Com. Jour., S. C, MS., XXXVII., pt. II., 121, 171, 198, 209.
 
 46 CONSTITUTIONAL HISTORY OF S. C. 
 
 This togated figure still stands — now in Washington 
 Square — less its right arm by a British cannon in 1780. 
 The gun burst ; tradition says with the monstrous shot 
 that broke the arm of Pitt. 
 
 I have gone beyond the strict requirements of con- 
 stitutional history in treating the Stamp Act ; but it has 
 been to give a view of how the royal and democratic ele- 
 ments in the government were related ; how the people con- 
 trived to circumvent what they could not prevent ; how 
 they strove to control and punish their oppressors — in 
 short, to give a picture of the province of South Caro- 
 lina in action.
 
 CHAPTER VIII. 
 
 Relations of Commons and Council 
 from 1725 to 1765. 
 
 In the opposition to the Stamp Act, the determina- 
 tion of the people of South CaroHna to be self-governed 
 burst forth overpoweringly, in the terrorizings of the mob, 
 in the resolutions of the Commons House of Assembly, 
 and in the annihilation of the authority of the crown in 
 the common law courts by the assistant judges. But 
 the sentiment of home rule was no new one. The 
 Stamp Act was two things: first, it was a very import- 
 ant incident in a long course of development; and 
 second, it did not leave the development where it found 
 it, but gave it an immense advance. Oppression came 
 just at the stage of the colony's history when oppres- 
 sion could least be brooked. 
 
 The legislature of South Carolina consisted of two 
 elements distributed among three parties: first, the pure- 
 ly home rule element, in the Commons House of Assem- 
 bly; second, the purely royal element, in the King-ap- 
 pointed Governor; and third, a compromise between 
 these two elements in a body to whom the interests of 
 the province would appeal as natives and the interests 
 of the King as champions of the prerogative — the 
 Council.
 
 48 CONSTITUTIONAL HISTORY OF S. C. 
 
 There was a slow revolution going on in the gov- 
 ment of South Carolina; a revolution purely domestic 
 in its field of operation, though reaching across the sea 
 in its relationships; different from the American Revo- 
 lution, but born of the same spirit; a slow process of 
 change, which, but for the greater and more startling 
 one, would have completed itself in the same theatre in 
 which it began. 
 
 By the formal constitution of the province of South 
 Carolina, that is the royal instructions to Governors, 
 there was but one way in which money could be paid 
 out of the treasury — by the vote of both Commons and 
 Council and the concurrence of the Governor. In deal- 
 ing with money bills, as in all other particulars, the two 
 bodies were given exactly similar privileges. The Coun- 
 cil, however, never went so far as to originate a money 
 bill. For some time this plan went on smoothly. In the 
 early years of the royal government the Council was com- 
 posed almost or quite entirely of native South Carolin- 
 ians, and seats were sought as an honor by the best citi- 
 zens.' There appeared no great reason to apprehend 
 danger to the liberties of the people from the upper 
 house, as it was then called, made up, as it was, of the 
 most respected men in the province. Those were the 
 days when Thomas Broughton might be indifferently 
 Speaker of the Commons House of Assembly or a mem- 
 ber of His Majesty's Council. The two houses of the 
 Legislature — for at that time they were properly two 
 houses — audited the public accounts by joint commit- 
 tee, and made the estimates and framed the tax bill in 
 perfect equality. Either offered amendments as a mat- 
 ter of course. The terms Upper and Lower House were 
 
 1 Pub. Rec. S. C, MS., XIV., 148 ; XXII., 160 ; XXXVlf, 162, etc.
 
 RELATIONS OF COM. AND COUNCIL. 49 
 
 constantly used by both Houses in speaking of them- 
 selves and of each other. ^ 
 
 But even so early as 1725 the Commons House of 
 Assembly began to measure it privileges by those of the 
 British House of Commons. In that year the right of 
 the Council to amend or change money bills was totally 
 denied by the other branch of the legislature. Surely, 
 they say, the King did not intend the Council to have 
 more power than the English House of Peers. The 
 dispute waxed high and was ended by the aggressive 
 Commons being knocked into limbo by a dissolution. - 
 
 In 1735 occurred the next clash. Suggestions, mes- 
 sages, recommendations, and formal amendments to the 
 tax bill continued up to the very moment of collision.'^ 
 Who could cast a stone at a patriotic "Upper House" 
 that sent down a warm recommendation to reimburse a 
 South Carolinian who had spent his substance in Lon- 
 don frustrating the designs of the greedy Lords Pro- 
 prietors to regain possession of their lost Carolina .'' The 
 memories of 17 19-1729 still drew the Houses together. 
 
 The shock was startling. In the days of February 
 and March, 1735, are strewn over the pages of the Com- 
 
 1 In tlie earlier years of ttie royal government the bill to raise the funds to 
 meet the expenses was passed at the beginning of the year whose expenses 
 were being provided for. Each House appointed members of a joint commit- 
 tee, who estimated what amounts would be necessary. The Commons framed 
 the tax bill in blank, and filled out the amounts after the report of the Joint 
 committee. 
 
 At a later date, it became customai\y to frame the tax and supply bill at 
 the end of the year whose expenses were being provided for. This nietlnHi at- 
 tained more accurate results, since the bill was Iramed, not to meet what it was 
 estimated the expenses would be, but what it was discovered they had been. 
 The joint committee now inspected all claims against tlie government for the 
 past year for salaries, administration, extraordinary expenses, etc., and au- 
 dited these accounts. When the gross amount was arrived at, the blanks in 
 the tax bill were filled. 
 
 The system of providing revenue for the past, instead of for the coming 
 year, continued to the Revolution. 
 
 2 Com. Jour. iS. ('., MS., Vll., 320, 333, etc. ; Pub. Rec. S. C, MS., XL. 301. 
 
 3 E. g.. Com. Jour. S. ('., 1734, XL, 17, 64, 67, 70, 107, lOH, etc. ; Council Jour. S. 
 C, MS., v., 534, 543, 640, etc.
 
 50 CONSTITUTIONAL HISTORY OF S. C. 
 
 mons Journal grumblings that the Upper House was 
 keeping the tax bill altogether too long. The Council 
 grumbled back. Evidently there was to be trouble. It 
 so happened that Chief Justice Robert Wright had in- 
 curred the enmity of the Commons House of Assembly, 
 and for three years they had withheld his pay. Now 
 this Robert Wright was a member of the Council.' In 
 the tax bill of 1735 the Commons also provided that 
 their clerk should receive twice the amount allowed the 
 clerk of the Upper House. When the tax bill went to 
 the Council, the gross sum was ^42,992, 13s., 6d. ; 
 when it was returned, the figures read, ^45,092, 13s., 
 6d.^ The Council did not relish the discrimination 
 against their own clerk, and they desired to force the 
 Commons to pay Wright his salary. 
 
 The Council had offended in two particulars: they had 
 added £2, 100 to the people's taxes, and they had at- 
 tempted to wrest from the hands of the Commons their 
 only weapon against obnoxious royal officers. The 
 amendment was unanimously rejected {iieviinc contra- 
 dicente). On the next day, March 28, 1735, the House 
 resolved in similar ncmine coiitradicente style, "That 
 His Majesty's subjects in this province are entitled to all 
 the liberties and privileges of Englishmen {;vidc Charter 
 to the Lords Proprietors; vide Statute 31 Ed. I., Chap. 
 I and 4); (and) that the Commons House of Assembly 
 in South Carolina, by the laws of England and South 
 Carolina, and ancient usage and custom, have all the 
 rights and privileges pertaining to money bills that are 
 enjoyed by the British House of Commons"; and 
 further, that after the tax bill is closed, no addition can 
 
 1 I'ub. Hec. H. C, MS., XIV., 28. 
 
 2 Com. Jour. S. C, MS., IX., HO, 126, 178, 188.
 
 RELATIONS OF COM. AND COUNCIL. 51 
 
 be made thereto "but by and in the Commons House of 
 Assembly."' 
 
 The right to all the liberties of the inhabitants of 
 England, and, by necessary implication, the exercise of 
 their parliamentary practices, and not the ro}al instruc- 
 tions alone or completely, the Commons considered their 
 constitution. Note, however, that in the earlier years 
 of the struggle, and sometimes even towards the end, 
 they plead the intentions of the King in justification of 
 their claims. This was a very constitutional people; 
 they professed to abhor revolution while constantly work- 
 ing it. At last they were forced to desert the plea of 
 the King's intentions, as His Majesty declared most em- 
 phatically that he was against them. Whether the Gov- 
 ernor and Council cited the royal instructions, or the 
 Commons the charter and the statute extending to the 
 colonies all the liberties of Englishmen, it was equally 
 the archetype of the American system of a supreme 
 written Constitution by which the acts of the various 
 branches of government are to be tested. 
 
 At this early stage of the royal government, with the 
 title of the Proprietors only six years dead, the movement 
 for absolute home rule was thus far advanced. Evi- 
 dently the colonists did not exchange the weaker over- 
 lordship for the stronger in order that their liberties 
 might be curtailed. 
 
 In the battle of 1725 the Commons gained nothing, 
 except the moral energy for the future that came from 
 
 1 Lieutenant-Governor Hull, in a very lucid sketch of the relations of tlie 
 Commons and Council, written in 1770 at the direction ol" the pjiri ol" Hills- 
 borough, makes a mistake of a year and a half in the date of this clash, and 
 also is in error in saying that it was the first. Rut his sketch is very excellent, 
 altogether invaluable. I am largely indebted to it. It is much superior to 
 that of the attorney genei-al of England, William de Gi-ey, written about the 
 same time for the same purpose.
 
 52 CONSTITUTIONAL HISTORY OF S. C. 
 
 asserting their rights. The battle of 1735 was of real 
 strategic importance in the long campaign. After it the 
 Commons moved their banners forward and camped one 
 march nearer the citadel of the enemy. From that 
 time the public accounts, which had before been audited 
 by a joint committee of the two Houses, were audited 
 by the Commons alone. 
 
 The determination of the Commons House to estab- 
 lish for themselves the privileges of the British House 
 of Commons is emphasized by the trifling incidents that 
 could occasion a conflict. In 1739 the mere omission of 
 the word "honorable" before the name of Councillor 
 Hammerton and its use before that of Mr. Pinckney, 
 Speaker of the Commons, precipitated a general contest 
 on rights and privileges. The conflict was fiercer than 
 ever before. The great strategic position was money 
 bills; the Commons claimed sole control, and the Coun- 
 cil asserted their right to amend. The privileges of the 
 British House of Commons was the slogan of the Lower 
 House; the royal instructions that of the Upper. The 
 sun of their official life set, and went down upon their 
 wrath; the Assembly's triennial term expired with no 
 tax bill passed, each House holding its pretentions high. 
 The newly elected Assembly took up the battle without 
 a lull, and flew into resolutions on the undoubted rights 
 of Englishmen. Only the thunder clouds of real war 
 gave surcease to the war of words; threatened hostili- 
 ties with Spain forced the Assembly to provide a public 
 revenue against the galleons that would not fail to creep 
 from the shadows of the Morro to harry the coast of 
 Carolina. 
 
 With an express reservation of their respective priv- 
 ileges, which were not to be considered as in any wise
 
 RELATIONS OF COM. AND COUNCIL. 53 
 
 committed, the two Houses agreed upon a temporary 
 compromise. The Council was not to amend money 
 bills, but might recommend in a message any necessary 
 addition or change. If the Lower House approved, 
 they threw out the original bill altogether, after a simi- 
 lar occasional practice in England, and brought in anew 
 bill embodying the suggestions. The Commons saved 
 the principle and stationed their outposts one furlong 
 nearer the entrenchments of prerogative.' When the 
 accomplishment of particular objects required, the Com- 
 mons denied to the Council even the privilege of sugges- 
 tion. For the sake of peace, the Council acquiesced, 
 and the Commons, says Bull, "thus coming off victo- 
 rious, soon felt their strength to consist in holding the 
 purse strings of the people." 
 
 In 1756 the contest was again on, and the Commons 
 gained most important victories on two points. The 
 diplomatic corps of the province of South Carolina con- 
 sisted of but one ambassador, and he at the honorable 
 court of St. James. This was the regular "agent," who 
 was kept in England to attend to the general interests of 
 the colony. Before the days when "the undoubted 
 rights of Englishmen" began to be doubted^ and while 
 the Council was still a passable legislative body, the 
 agent was appointed by both Houses, and the business 
 with him was conducted by a joint "committee of cor- 
 respondence." In 1749 Charles Crokat was thus ap- 
 pointed. In 1756 he wrote that his private affairs for- 
 bade his longer attending to the colony's business, and 
 begged to be relieved. Mr. Charles Pinckney, wealthy, 
 able, upright, was then in England, and to him the eyes 
 
 1 Com. Jour. S. C, xMS., IX., 711 ; Pub. Uec. S. t'., MS., XXXII., 3i!t5.
 
 54 CONSTITUTIONAL HISTORY OF S. C. 
 
 of the Council turned. But Mr. Pinckney, sometime 
 chief justice of South Carolina by gracious appointment 
 of Majesty, was himself a member of the Council. The 
 Commons preferred Mr. Crokat, and to enable him to 
 continue his services, inserted in the tax bill an item of 
 ^1,400 currency for his salary. The Council asserted its 
 old right of amendment, and refused to pass the tax bill 
 with the item for Crokat. Time after time the bill was 
 rejected; neither side would yield. The Commons pub- 
 lished the whole affair, together with a long vindication 
 of their rights, and an arraignment of the other House. 
 Great popular resentment was excited against the oppos- 
 ers of the people's representatives. The Council, though 
 responsible only to the King, yet feeling the stress of 
 public opinion, issued a long rejoinder. Three causes 
 conspired to the victory of the Commons: popular ac- 
 clamation, the arrival of a new Governor, and the be- 
 ginning of the Seven Years' War. To give the new Gov- 
 . ernor a smooth start, and as the royal part in the gov- 
 ernment was anxious to keep the Commons in good 
 humor for the King's requisitions for the war, says Lieu- 
 tenant-Governor Bull, the Council yielded and passed 
 the tax billfes sent up by the Commons, thus surrending 
 their right to strike out the ;^i,400.^ 
 
 The estrangement between the two Houses now be- 
 came almost complete. From about this time friendly 
 conferences and joint committees totally ceased; Lieu- 
 tenant-Governor Bull says in 1770 that he thinks that 
 there has not been one in ten or fifteen years. - 
 
 The change regarding the agent and the conmiittee of 
 correspondence was also of great importance. The 
 
 1 Pub. Rec. S. C MS., XXXIl., 328. 
 
 2 Pub. Kec. .S. U., MS., XXXII., 372.
 
 RELATIONS OF COM. AND COUNCIL. 55 
 
 Council would none of Mr. Crokat, and the Commons 
 continued to correspond with him alone. The stubborn- 
 ness of the Council lost them more than they realized. 
 The monopoly of the committee of correspondence re- 
 mained with the Commons. When in the years pre- 
 ceding the Revolution the colonies began their commun- 
 ications, which ended in the American Union, these com- 
 munications were naturally referred to the standing com- 
 mittee of correspondence, which had by a kind of acci- 
 dent fallen into the hands of the Commons. At first 
 a part of it (nine, e. g. , on one occasion) was delegated 
 to write such sporadic letters to sister colonies as were 
 necessary. Afterwards the whole committee, as a ready 
 prepared instrument, became one of the organs of rev- 
 olution. The House directed it to communicate to all the 
 other colonies every particular grievance against the 
 Governor and Council, as well as South Carolina's sen- 
 timents on general American liberties, and it was ordered 
 to continue to act after the House had adjourned.^ This 
 regular committee of correspondence continued this un- 
 til superseded by the extralegal organizations of revolu- 
 tion of 1774-76. 
 
 In 1754 the designation of the two Houses changed. 
 Until then the Commons called the Council the Upper 
 House and themselves the Lower, or said Commons and 
 Council indifferently. The Council and everybody else 
 did the same thing. But after 1754 the use of these 
 terms is rare and very dangerous to parliamentary peace. 
 As above pointed out, the Council was becoming more 
 distinctively an administrative board than a legislative 
 house. This was largely due to the great increase of 
 
 1 Com. Jour. S. C, MS., XXXIX., pt. II., 27, U3.
 
 56 CONSTITUTIONAL HISTORY OF S. C. 
 
 wealth and population. It will be remembered also that 
 the Council had come to be composed largely of Eng- 
 lishmen, royal officeholders subservient to the King. 
 To be ruled by such a body was insufferable. The ques- 
 tion was no longer one merely of parliamentary priv- 
 ileges between two houses of the legislature, but one of 
 home rule versus being ruled by a clique of placemen, 
 the creatures of a distant autocrat. In the very nature 
 of the situation, the struggle hightened in intensity. The 
 following important and altogether unique occurrence, 
 involving equally Governor, Commons and Council, will 
 make plain the state of affairs at the period of the 
 Stamp Act: 
 
 In May, 1761, Thomas Boone, an Englishman, was 
 commissioned Governor of South Carolina, In Decem- 
 ber he arrived.^ Soon he refused to administer the 
 "state oaths" to a member-elect of Assembly, because 
 he questioned whether the gentleman had been duly 
 elected. A high dispute raged; Boone dissolved the 
 House. The Commons denounced Boone to the King 
 for presuming to infringe on their sole right to judge of 
 elections, and published a 78-page pamphlet, which they 
 distributed in South Carolina and England.^ The newly 
 elected House denounced Boone's original act, and also 
 his dissolution of their predecessors, and refused even to 
 furnish resistance against the Indians, who were taking 
 the war path, until he had given satisfaction. Boone 
 prorogued them and, contrary to law, held no Assembly 
 for eight months.'^ 
 
 1 Pub. Rec. S. C, MS., XXX., SOS; XXIX., 210; Com. Jour. K. C, MS., 
 XXXIV., 270, 271. 
 
 2 Com. Jour. S. C, MS., XXX VI., 29; Pub. Kec. S. C, MS., XXX., 154, 164, 
 l(i7. 
 
 3 lb.
 
 RELATIONS OF COM. AND COUNCIL. 57 
 
 By the advice of the ministry, the King reprimanded 
 Boone very severely; but before the Commons he was 
 hypocritically endorsed, and they were told that Gover- 
 nor Boone was right in maintaining the "royal preroga- 
 tive," and that they had been guilty of a violation of 
 duty to their sovereign with which he was highly dis- 
 pleased.^ 
 
 After his singularly insolent words and conduct. Gov- 
 ernor Boone was "surprised" to find that the appropria- 
 tion bill contained no item for his salary. Imniediately 
 after his arrival in December, 1761, before he had trod- 
 den upon their privileges, the Assembly had paid him 
 for the few remaining days of the year iJ^86, 6s. cur- 
 rency, about $61, the exact proportion of the annual 
 allowance of ^3,500. Further than this, during the 
 two and a half years that he remained in South Caro- 
 lina, no shilling did he get.'- No royal Governor of 
 the province had ever before been denied his pay. 
 In 1764 the Council sent in a message to the Commons 
 threatening to throw out the tax bill unless the sum of 
 i^7,ooo for Governor Boone's salary was added. This 
 brought down the heaviest blow that the Council had 
 ever received. Said the Commons, in substance: 
 
 \\^e would be surprised at your effrontery if repeated 
 offences had not accustomed us to it. As for your "in- 
 structions" from the King, you certainly need instruc- 
 tions from somebody; in this particular matter, however, 
 we question the reliability of your statement. We do not 
 need you to tell us that no Governor was ever deprived 
 of his allowance since this became a royal colony; that 
 only emphasizes his demerits; never before has any Gov- 
 
 1 Pub. Kec. S. C, MS., XXX., 172-o. 
 
 2 Com. Jour. S. C, MS., XXXV., pt. I., 161 ; Pub. Rec.S.C, MS., XXX., 296.
 
 58 CONSTITUTIONAL HISTORY OF S. C. 
 
 ernor been so enormous in his "repeated insults and 
 attacks upon the rights and privileges of the people." 
 The money "is ?tot a salary, but a gratuity from the peo- 
 ple, which they would be stupid to bestow upon a Gov- 
 ernor who has endeavored to deprive them of what 
 ought to be valued by every Englishman more than life 
 itself." But that we may give even you your dues, we 
 must ' 'most highly applaud your most profound sagacity 
 in discovering the" virtues of a Governor whose "haught- 
 iness and despotism" South Carolina has never seen ex- 
 ceeded. We can easily understand your his syco- 
 phants' "utmost . . . suppleness ... to 
 avoid that suspended rod, which the least refractoriness 
 would inevitably bring" down. We do not know how 
 much you are being rewarded for this, you disinterested 
 "volunteers"; but know "that we will not restore the 
 
 sum of ^7,000 NO! not even for your 
 
 favorite GOVERNOR!"^ 
 
 Such were the relations of the Commons and the 
 Council at the period of the Stamp Act. The character 
 of the Council had been radically changed. Our ne.xt 
 chapter will see a still more startling advance in this 
 revolution which was going on within the government of 
 the province of South Carolina. 
 
 1 Com. Jour. S. C, MS., XXX VI., 342-6. 
 
 Withholding Governor Boone's salary was not a measure of econ- 
 omy to save the money involved. After Boone's departure, the Commons re- 
 solved that the withholding of the salary was perfectly right and "must always 
 remain unimpeached ; . . . but as our truly Patriotic Sovereign has been 
 pleased to discountenance oppression by removing that arbitrary and impe- 
 rious Governor for daring to trample on the people's- liberties," we will, In 
 deference to His Majesty's request, and not from any obligation, insert the lit- 
 tle £7,000 in our next budget. And as for you, Governor Lord Montagu, we 
 will say, that we cannot establish any regular salaiy, as His Majesty urges : 
 but we have no doubt that at the proper time this House will allow you what 
 has been customary for the gentleman filling the position you have come to 
 occupy. Com. Jour. S. C, MS., XXXVII., pt. II., 165.
 
 CHAPTER IX. 
 
 Appropriation of Money on the Sole 
 Authority of the Commons. 
 
 Far reaching was the influence of John Wilkes of 
 Middlesex. Not only did he sorely vex George III. in 
 old England, but he played a large part in overthrowing 
 the royal prerogative and the power of His Majesty's 
 Council in South Carolina. 
 
 As before remarked, by the formal constitution of 
 South Carolina, i. e. the royal instructions to Gover- 
 nors, there was but one way of issuing money from the 
 treasury — by vote of the Commons and the Council 
 and the concurrence of the Governor. But a fateful 
 variation from the strict letter of the law was some- 
 times allowed. Mark the small steps of a progress 
 which when completed worked a revolution. To pass 
 an appropriation bill through three readings in each of 
 two Houses, have it signed by the Governor, and for- 
 mally ratified by both Commons and Council was a 
 process requiring more or less time. Therefore in great 
 emergencies the following quick method was sometimes 
 practiced: a simple resolution, requiring but one voting, 
 was passed by Commons and Council and was con- 
 curred in by the Governor, the Commons at the same 
 time resolving to replace the money by the next tax bill. 
 It was a kind of borrowing from the treasury in an 
 informal way and repaying in the prescribed constitu- 
 tional form. We have already observed how the con- 
 trol of the budget had been gained by the Commons.
 
 6o CONSTITUTIONAL HISTORY OF S. C. 
 
 How easy, therefore, was the next step of making 
 appropriations still more expeditiously by the Commons 
 alone resolving that the treasurer should pay certain 
 sums on the requisition of the Governor, and resolving 
 also, as before, to make provision in the budget. So 
 far there was nothing to alarm or offend the royal con- 
 stituents in the government. But how easy was one 
 more step, for the Commons to order the treasurer to 
 advance certain sums to a committee of themselves, 
 resolving, as always, to make good the amount. If the 
 money was for the King's service and time was very 
 pressing, His Majesty's Council and the royal Governor 
 would hardly make serious objection on the score of 
 mere technical irregularity. Of late years, says Lieuten- 
 ant-Governor Bull in 1770, even this method had been 
 allowed to go unchallenged, because of the reasonable- 
 ness of the service or the reluctance to raise one of 
 those struggles on "the undoubted rights of English- 
 men." When the Council had made any objection, 
 they had always come out the worse for it. 
 
 So in 1770 there were three methods of drawing 
 money from the treasury: first, by the concurrence of 
 the Commons, Council and Governor; second, by the 
 Commons ordering the money to be paid on the requisi- 
 tion of the Governor; and third, by the Commons 
 ordering the money to be paid to anybody they should 
 designate.' But when the appropriations of the Com- 
 mons reached the ;^io, 500 point currency and had 
 John Wilkes mixed up in it, it was time to call a halt. 
 Majesty himself personally commanded that a halt 
 must be called. The runaway team of a Commons 
 
 1 Pub. Rec. S. C, MS., XXXII., 132.
 
 APPROPRIATION OF MONEY, 6i 
 
 House having gotten well beyond control, it would evi- 
 dently require an immense amount of pulling and coax- 
 ing and tugging and jerking to bring them back to an 
 orderly constitutional jog trot, if indeed they did not 
 utterly tear to pieces the antiquated vehicle. 
 
 How John Wilkes, of Middlesex, was elected to the 
 British Parliament, how he was expelled, and how he 
 became the black beast of George HI. and the glorified 
 champion of the party of liberty, is known to the world. 
 "Bill of Rights Societies" were organized all over Eng- 
 land, and indeed the British empire. Their proceed- 
 ings, and everything else concerning John Wilkes, fill 
 the South Carolina newspapers in those years. The 
 attachment to the cause of liberty as represented by 
 Wilkes was intense in South Carolina. Societies in the 
 interest of him and violated British liberty were organ- 
 ized in the province, and enthusiasm went to a hight. 
 Take, e. g. , the following advertisement, which ap- 
 peared in the South Carolina Gazette of December 
 
 2, 1772: 
 
 Charles Town, Nov. 21, 1772. 
 THE FRIENDS OF LIBERTY 
 Agreeable to the English Constitution, 
 Who are members, and particularly the Stewards, 
 
 OF CLUB No. 45. 
 The meeting of which was adjourned to the Day 
 whereon certain advice should be received of the intre- 
 pid patriot 
 
 JOHN WILKES, Esq., 
 
 Being advanced to the high dignity of 
 
 LORD MAYOR of London, 
 
 are desired to meet at Mr. Holliday's Tavern at Six
 
 62 CONSTITUTIONAL HISTORY OF S. C. 
 
 o'clock THIS EVENING, to choose Stewards, and 
 otherwise prepare for the Celebration of their sincere 
 joy upon so glorious and important an event. 
 
 "The Supporters of the Bill of Rights" in England 
 sent requests for aid to all parts of America. On 
 December 8,' 1769, the Commons House of Assembly 
 of South Carolina responded by sending to England 
 ;,{^i,500 sterling of the public money for this cause. ^ 
 In their Journal it reads, that the public treasurers 
 should pay to a committee of members the sum of 
 ;{^ 1 0,500 currency, to be sent to England, "for the 
 defense of British and American Liberty."- From the 
 Public Records we learn that the money actually arrived 
 in England. 
 
 Here then was an offense that smelt rank in the nos- 
 trils of Majesty. The representatives of the people of 
 South Carolina, in the Commons House of Assembly, 
 had defied the concurrent authority of the Governor 
 and Council, completely ignored them, and had sent 
 ;^i,500 good sterling money to England to support the 
 cause of the arch enemy of George III. The King was 
 outraged. He gave the matter his personal attention. 
 The attorney general of England, William de Grey, 
 was ordered to investigate the constitutional history of 
 South Carolina from 1662 and report whether any 
 shadow of pretext existed, ever had existed, or by any 
 possibility could be construed to exist, for the action of 
 the Commons. Lieutenant-Governor Bull across the 
 water was given the same task. The ventilation of 
 this affair between London and Charleston for the next 
 five years fills hundreds of pages in the Public Records 
 
 1 S. C. and Amer. Gen. Gaz., Dec. 4-13, 1769. 
 
 2 Com. Jour. S. C, MS., XXXVIII., 215.
 
 APPROPRIATION OF MONEY. 63 
 
 to the overshadowing of all 'other subjects, until the 
 Revolution was fairly upon the empire. 
 
 On February 13, 1770, de Grey handed in his report. 
 It is an admirable constitutional sketch, clear and con- 
 cise, and, if its premises are admitted, thoroughly con- 
 clusive. He assumes the royal instructions to Gov- 
 ernors, which define the branches of government and 
 the functions, privileges and limitations of each, to be 
 the constitution of South Carolina. He cites these 
 instructions by sections, just as now our supreme courts 
 cite the sections of the written Constitution, and decides 
 that, "by the Constitution of that Colony," no warrant 
 exists for the Commons House of Assembly to appro- 
 priate money or do any other legislative act by their 
 sole authority. The Council had co-ordinate powers, 
 he says, in amending and passing money bills.* The 
 significance of this theory of colonial constitutional 
 law will be considered later." 
 
 Lieutenant-Governor Bull's paper is an abler docu- 
 ment than de Grey's. It is much more historical in 
 method. In tracing the actual relations of the Com- 
 mons and the Council, e.xhibiting the ever growing 
 power of the former, it is doubtless the most valuable 
 single document in the Public Records on the constitu- 
 tional development of the province. Bull's own life as a 
 public man covered much of what he described, and he 
 could therefore explain the movement of many causes 
 and motives that do not appear in the official Journals. 
 He took the same ground as de Grey, but recognized 
 that as a practical question, to set this wrenching of the 
 
 1 Pub. Rec. S. C, MS., XXXII., 166-181. 
 
 2 Some consideration of this is found in Chapter XI. below ; the full discus- 
 sion, however, by the very nature of the case is found in the portion of the 
 thesis not published at this time.
 
 64 CONSTITUTIONAL HISTORY OF S. C. 
 
 instructions constitution right would require the most 
 prudent firmness and the most masterful tact; that it 
 was a task of the utmost difficulty, if indeed it were 
 possible at all. 
 
 On the strength of his various advices the King ordered 
 sent to the Governor or Lieutenant Governor of South 
 Carolina his supremest mandate, known as the "Addition- 
 al Instruction of April 14, 1770."^ By it, the claims of 
 the Assembl}^ were forbidden in the most emphatic terms, 
 and the absolute coordinate power of the Council in 
 amending and passing money bills was reaffirmed with 
 the greatest positiveness possible to employ. The King 
 emphasizes his emphasis and italicizes his italics. The 
 Governor, or Lieutenant-Governor, and Council were 
 forbidden under pain of the highest displeasure and in- 
 stant removal to allow any bill to pass which appro- 
 priated a single farthing except for specified services of 
 the King's government in South Carolina or for his di- 
 rect specified service elsewhere. — "For the defence of 
 British and American liberty!" A pretty governmental 
 service!— By forbidding the reimbursing of the treas- 
 urers, the King hoped not only to win the constitutional 
 point at issue, but to be able to sue the officers, as the 
 law provided, for thrice the amount, and so accomplish 
 their punishment and ruin as an example for the future. 
 
 So here is the battle fairly and specifically joined be- 
 tween the King's most personal Majesty armed wath 
 the prerogative, and the Commons House of Assembly 
 armed with the determination to maintain the undoubted 
 rights of Englishmen, which are getting to be consid- 
 erably doubted, among others to dispose of their money 
 
 1 Pub. Rec. S. C, MS., XXXII., 236, 249.
 
 APPROPRIATION OF MONEY. 65 
 
 as they pleased, and particularly to replace the ;^i 0,500 
 currency as they had promised. 
 
 The Council did not require the additional instruction 
 to oppose the growing pretentions of the Commons. 
 Their own dignity, their very existence, was at stake. 
 Lieutenant-Governor Bull instructed them that they 
 should reject the tax bill if the item of i^i 0,500 to re- 
 imburse the treasurers appeared. — Instructed what to 
 pass and what to reject, and yet claiming to be a coor- 
 dinate House of the legislature.^ — On April 5, 1770, be- 
 fore the arrival of the additional instruction, or reitera- 
 tive amendment of the constitution as we might call it, 
 the Council sent in to the Commons a message on the 
 tax bill, making certain suggestions but not attempting 
 to propose any formal amendment. The message was 
 in substance as follows: 
 
 We are surprised that you make provision for reim- 
 bursing the public treasurers for the ^10,500 sent to 
 England. All moneys are granted expressly for the 
 King's service; but this ^lo, 500 "tacitly affronts His 
 Majesty's government." We do not desire any contest 
 as to the constitutional rights of the two Houses in deal- 
 ing with money bills, nor to raise the question of our 
 right to amend; we simply wish to intimate that if the 
 tax bill stands as it is, it will likely fail to obtain our con- 
 currence, which is certainly necessary. Do not be so 
 stubborn to have your own way and thus stop govern- 
 ment and destroy public credit. We do not enter upon 
 the question of your power to appropriate the £\o, 500 in 
 the first instance by your sole resolution. But we cannot 
 let the affair pass without at least this notice, lest it 
 
 1 Pub. Kec. S. C, MS., XXXII., 298.
 
 66 CONSTITUTIONAL HISTORY OF S. C. 
 
 should, as would be inevitable, finally come about that our 
 legislative power should be interpreted away and con- 
 strued into mere advice to the Governor, "according to 
 the ingenious distinction of a Governor many years ago. "^ 
 The Commons ordered this message expugned from 
 their Journal as an injurious and indecent insult. — Gen- 
 tlemen of the Council, we do not wish a conflict; to 
 avoid any altercation, we return to you your paper for 
 your calm consideration." — But instead of calmly con- 
 sidering their message, the Council sent it back again. 
 Then waxed the anger of the Commons. Business was 
 dropped; they refused to hold any further communica- 
 tion, even of the most formal character, with the Coun- 
 cil, and entered upon the consideration of the conduct 
 of that body. Lieutenant-Governor Bull, believing that 
 it is idle hands that Satan finds mischief for, urged the 
 Commons to consider the flour and tobacco bills: — Very 
 interesting, gentlemen; very important; commercial 
 prosperity. But immediately, he says, there arose a 
 storm of "No! No!" On April 9, the House appointed 
 a committee of ten of the leading men of South Caro- 
 lina to report what steps were necessary. The next 
 morning they reported, in substance, thus, answering the 
 arguments of the Council and arraigning them for at- 
 
 1 Com. Jour. S. C, MS., XXXVIII., 387. 
 
 It seems that this "ingenious distinction" was made in about 1745 or 1750. 
 On one occasion (I gather about the date just named) several members of the 
 Commons went to the Governor and informed him tliat there were a sufficient 
 number in tlieir House willing to pass the tax bill, and asked whether he 
 would sign it if brought to him without having been submitted to the Council. 
 The Governor however declined to consent to such a proceeding ; what "ingen- 
 ious distinctions" lie then uttered as private opinions I do not know. Since 
 this whole proceeding was extralegal there is liardly any likelihood tliat any 
 trace of it can be found in any of tlie contemporary Journals, though tlie Pub- 
 lic Records, from which I have gathered these details, which are given by Bull 
 in his official correspondence in 1770, may contain further information. 
 
 2 Com. Jour. S. C, MS., XXXVIII., 384.
 
 APPROPRIATION OF MONEY. 67 
 
 tempting to deny the rights of the people's representa- 
 tives: 
 
 The Council's seeking to usurp the just rights of the 
 Commons is responsible for whatever injury has come to 
 the government and the public credit. Further, we re- 
 port : 
 
 ist. Their message is without truth or justice, and 
 is a mean attempt to bring the Commons House into 
 contempt before their sovereign and the people. 
 
 4th. It is altogether contrary to truth and to the un- 
 deniable privileges of this House to assert or insinuate 
 that it has not power to appropriate money for such pur- 
 poses as that for which we appropriated the i^io, 500. 
 
 5th. The contention of the Council to control 
 money bills is a "seditious doctrine ... for the 
 interposition of some power to raise money upon the in- 
 habitants of this province other than their own repre- 
 sentatives." 
 
 6th. This House has always "exercised a right of 
 borrowing moneys out of the treasury, . . . which 
 right no Governor has ever attempted to control." 
 
 7th. The defense of the constitutional liberty of the 
 people of Great Britain and America is a proper, and 
 not a disloyal purpose. 
 
 8th. A former Governor's opinion concerning the ad- 
 visory character of the Council's votes only confirms our 
 contention that you are no Upper House, as with du- 
 plicity you claim to be. We hope that we can induce 
 His Majesty to appoint a real Upper House, distinct 
 from the Council, which shall be composed of men of 
 independence and property.
 
 68 CONSTITUTIONAL HISTORY OF S. C. 
 
 9th. We will prepare an address to His Majesty to 
 grant this return to our original constitution. 
 
 loth. We will address the Lieutenant-Governor to 
 provide some immediate remedy for the Council's "insult 
 and indignity offered to this House," and to prevent 
 their mischievously stopping the public business.^ 
 
 These resolutions were as obnoxious to Lieutenant- 
 Governor Bull as to the Council. Yet his prudence and 
 conciliatory mien, unlike the high conduct of the English 
 Governors, had not allowed him to come to a clash with 
 the Assembly. But he was on the alert. He knew 
 well, he wrote to the Ministry, the danger of allowing 
 "popular assemblies . . . to be hurried by their 
 heated imaginations into wanton and extravagant reso- 
 lutions, from which they rarely can be brought after- 
 wards to recede." But to the Commons he said, in sub- 
 stance: Gentlemen, your private affairs at this season of 
 the year doubtless require your attention. You have 
 earned my thanks by your close attention to the public 
 business. Therefore, on this iith of April, 1770, being 
 planting time, I do prorogue this General Assembly. — 
 And "may God save the King!" This prorogation pre- 
 vented the Commons from coming to a vote on their 
 resolutions; but greatly to. Bull's chagrin, almost all the 
 members, though deprived of official character, joined 
 in publishing them in the newspapers, along with much 
 other matter of the same kind." When the resolutions 
 were at last voted on months afterwards, those desiring 
 the King to take away the legislative power of the Coun- 
 cil were omitted.^ 
 
 1 Com. Jour. S. C, MS., XXXVIII., 389. 
 
 2 Com. Jour. S. C, MS., XXXVIII., 393 ; Pub. Rec. S. C, MS., XXXII., 256. 
 
 3 Pub. Rec. S. C, MS.. XXXII., 316.
 
 APPROPRIATION OF MONEY. 69 
 
 As we remember, a few instances of the Commons 
 alone ordering money out of the treasury in times of 
 crisis had been allowed to pass ''S2ib silent 10,'' because 
 of the notorious reasonableness of the service. 'Now 
 the Commons claimed these instances as proving their 
 undoubted constitutional right, as established by the 
 usages of the past, which the usurping Council were 
 trying to wrest from the representatives of the people. 
 They had their London agent, Charles Garth, to pre- 
 sent their claims to the King and prove that they had 
 not been appropriating money by their sole authority, 
 but only borrowing it.^ But Majesty's ears were sealed 
 like a granite mountain side against pleadings for a prac- 
 tice in which lurked John Wilkes and a whole host of 
 abominations. 
 
 So this is the plan: Commons to "borrow" money 
 from the treasury for such purposes as the Governor and 
 Council would never approve, and insert enough in the 
 next tax bill, to be passed by Commons, Governor and 
 Council, to replace the borrowed funds, apprehending 
 that the Governor would not veto the whole budget and 
 stop the government just for that one item. We see 
 too how necessary it was to deny the Council's power of 
 amendment and force them to pass or reject the whole 
 as it stood. 
 
 A new Assembly met, but there was no break in the 
 deadlock. The Commons declared that unless the 
 additional instruction of April 14 was revoked, they 
 would raise no money, even for years to come. The 
 Governor and the Council had from the first set them- 
 selves, considering whether it were not well to die in this 
 last ditch of their old time prerogative. By the addi- 
 
 1 Pub. Rec. S. C, MS., XXXII., 422; XXXIII., 142.
 
 ^o CONSTITUTIONAL HISTORY OF S. C. 
 
 tional instruction they were trebly fortified, and 
 when Majesty's own pats on the back began to come 
 with every mail from London, they were elevated into a 
 sort of ecstatic stiff-neckedness unto eternal unyielding- 
 ness. My Lord, writes Bull in substance, we will 
 never yield now. I have informed the Council of the 
 King's approbation of their conduct, "and they have 
 desired me to inform your Lordship in the most express- 
 ive terms that the King's approbation of their conduct 
 fills them with the deepest sentiments of gratitude and 
 animates them with firmness to support every measure 
 that can demonstrate their zealous attachment to His 
 Majesty's person and government."^ 
 
 No tax bill was passed and funds to carry on the gov- 
 ernment began to be lacking. Only the general duty 
 law continued. In 1771 writes Governor Lord Montagu, 
 who arrived in September, "The King's officers suffer for 
 their salaries."^ The Commons would make no conces- 
 sion of their claim to issue their own money as they 
 pleased. In October, 1771, they repeated their de- 
 fiance by ordering the public treasurers to advance 
 ^3,000 currency, to be reimbursed to them, for pur- 
 chasing raw silk for export for the encouragement of the 
 production of that staple in the province. The treasur- 
 ers, between the devil of a King and the deep blue sea 
 of an Assembly, knew not what to do. Prudence forced 
 them humbly to refuse, as their bonds would be sued 
 and they themselves utterly ruined. Whereupon, for 
 this violation and contempt of their authority and privi- 
 leges, the House ordered the treasurers into the ' 'com- 
 mon gaol in Charles Town." Such an offence by the 
 
 1 Pub. llec. S. C, MS., XXXIII., 39. 
 
 2 Pub. Rec.8. C, MS., XXXIII., 87.
 
 APPROPRIATION OF MONEY. 71 
 
 Commons against the express letter of the King's in- 
 struction merited nothing less than the parliamentary 
 death penalty ; a dissolution instantly put a period to 
 their existence.^ 
 
 How striking is the parallel to English history, where 
 the British Commons are calling to account some royal 
 servant who has acted with contempt towards their 
 House or has been guilty of some more serious act of 
 enmity against the people, and who is rescued from the 
 Commons by a royal prorogation or dissolution. 
 
 For some time the Earl of Hillsborough, Principal 
 Secretary of State for America, was unstinting in his en- 
 dorsement of the Governor's position. We must bring 
 these unreasonable Commons to terms, he says.^ But 
 he little knew the nature of his task. By the spring of 
 1772 he is looking around for some loophole by which 
 the King can escape and yet win the victory over the 
 Commons. While such hints and compromises were 
 being held out, the new Assembly met, in the early 
 part of April, and showed their own uncompromising 
 spirit by beginning their career with an absolute refusal 
 to proceed to any business so long as the additional in- 
 struction remained unrevoked. Dissolution was in- 
 stant.^ Many of the members then met in a kind of 
 caucus and resolved, first, that they would pass no tax 
 bill without the iJ^i 0,500 being included in it ; second, 
 nor any tax bill containing any allusion to the King's of- 
 fer to compromise by allowing a special separate bill for 
 the contested sum ; third, that they would on no ac- 
 count pass any act declaring the Council to have an 
 
 1 Com. Jour. S. C, M.S., XXXVII., 54.?, 582-1 ; Pub. Rec. S. C, MS., XXXIII., 
 89. 
 
 2 Pub. Kec. S. C, MS., XXXIII., 105-7. 
 
 3 Pub. Rec. S. C, MS., XXXIII., 140.
 
 72 CONSTITUTIONAL HISTORY OF S. C. 
 
 equal voice in the passing of money bills. ^ You may 
 believe this like inspiration, My Lord, says Governor 
 Lord Montagu. 
 
 To have the advances of a King, made through an 
 Earl, thus flouted was not pleasing to a Principal Secre- 
 tary of State. Lord Hillsborough began to grow im- 
 patient with Lord Montagu, like Spanish monarchs 
 with explorers who kept returning without the gold, 
 which monarchs knew could be got if the stupid ex- 
 plorers would only go at it right. He sends such mes- 
 sages as wound the heart of the faithful Governor. On 
 July I, 1772, he writes, in substance, thus: You must 
 not be so violent ; you must carry the King's point, yet 
 conciliate the Commons ; you must be unbendingly firm, 
 but perfectly unantagonistic ; you must carry water on 
 both shoulders at once, sir ! Now, when that new As- 
 sembly meet, you must let them have their say, and 
 only after calm and temperate treatment fails to bring 
 them to reason are you to dissolve them. We can't re- 
 voke that additional instruction of April 14, 1770 ; but 
 if the Assembly would of its own accord pass a declara- 
 tion to the effect that the Council has equal rights in 
 amending money bills, and that no funds can be issued 
 without their concurrence, why then, you see, the addi- 
 tional instruction would just fall into desuetude of itself. 
 This trouble will soon be over ; for I am sure that the 
 substantial, thinking men don't uphold the usurpations 
 of the Commons.'^ 
 
 In nothing could Lord Hillsborough have been more 
 in error than in his closing opinion. It was the men of 
 education and wealth in the province who were the 
 
 1 Pub. llec. S. C, MS., XXXIII., 175. 
 
 2 Pub. Rec. S. C, MS., XXXIII., 161-4.
 
 APPROPRIATION OF MONEY. 73 
 
 quickest and most unyielding in defence of their own and 
 America's rights. To the Speaker of the Commons 
 himself, Hon. Rawlins Lowndes, is recorded a single 
 grant of thirty thousand acres. Untitled barons these 
 great planters were, who counted their servants and cat- 
 tle after the arithmetic of Job. 
 
 In the summer of 1772 Lord Montagu hit upon a 
 strategy for conquering the Commons miraculous in its 
 clumsiness. As he knew they would never omit the 
 ;^io, 500 while in Charleston, he says, he would convene 
 them in the remote village of Beaufort, where members 
 could ill afford to go at all and where they might be 
 shaken, as it were, into compliance by a series of short, 
 jerky prorogations.^ In Beaufort, therefore, he sum- 
 moned them, expecting a sparse, weak attendance. In 
 this small town, some fifty miles in a direct line down 
 the coast, the Assembly met, on October 8, 1772. 
 There was the fullest attendance for the first day of an 
 Assembly ever recorded in the history of the province. 
 The Governor now had two lights on his hands ; the old 
 matter of theiJ^io, 500 and its attendant constitutional 
 questions, and the new one of calling the Assembly in an 
 unusual place, a thing which had never been done ex- 
 cept for causes of public necessity. On the lOth Lord 
 Montagu made the Commons a well worded speech 
 and prorogued them for twelve days, to meet at their 
 accustomed place in Charleston. His plan had been 
 worse than a failure ; it had given a new vantage ground 
 and additional strength to the enemy. 
 
 On the 22dof October the Assembly reconvened, ac- 
 cording to prorogation, in the capital. On the 23d they 
 
 1 Pub. Rec. S. C, MS., XXXIII., 167, 174.
 
 74 CONSTITUTIONAL HISTORY OF S. C. 
 
 appointed a committee to draft a message to the Gov- 
 ernor. Usually the few prompt members had to wait 
 several days, perhaps more than a week, for a sufficient 
 number to make a house and proceed to business. But 
 not so now. Lord Montagu was demanded his reasons 
 for calling the Assembly away from the capital, in the 
 remote village of Beaufort. For the public benefit, an- 
 swered the Governor. Your explanations do not ex- 
 plain, replied the House, and proceeded to draft very 
 strong resolutions denouncing the conduct of Lord 
 Montagu. The report of their committee is very vig- 
 orous. They say in substance : 
 
 The Governor's conduct calls for the utmost resent- 
 ment. It was intended to intimidate or weary the peo- 
 ple into compliance with his oppression ; but let him 
 know that nothing could cause them to deviate "in 
 the minutest degree from the rights and privileges of the 
 people." Sir, such conduct shall not become a pre- 
 cedent. The troubles of this province are not due to 
 the people's representatives, but to you, who veto their 
 good laws and violate their privileges. And as for that 
 matter of the i^io, 500 which started all this, we would 
 state that it is an undoubted constitutional principle that 
 the Commons have the control in framing money bills. 
 And as for your Excellency's reflection regarding the 
 duty of "a wise senator to annihilate an unconstitution- 
 al claim," we would remark that the same observation 
 might apply with equal propriety to a truly patriotic 
 Governor. 
 
 During this session Lord Montagu sent for the Jour- 
 nals every day, so as to prevent any high schemes the 
 Commons might have in view. On October 29, when 
 his messenger went as usual to the clerk of the House,
 
 APPROPRTATION OF MONEY. 75 
 
 that functionary replied that the speaker had himself taken 
 charge of the Journals. This made the Governor very 
 angry ; he did not succeed in getting the wished for re- 
 cords until ten minutes before the convening of the 
 House the next morning. They were so blotted and in- 
 terlined as to be almost totally illegible.' Then the 
 Governor was still more angry. But his ire was to 
 know a yet hotter flame. When he did succeed in de- 
 ciphering the blotted, scrawling pages sufficiently to 
 gain the drift of things, he loaded his gubernatorial can- 
 non with an immense bombshell of a prorogation and 
 summoned the Assembly into immediate attendance, to 
 be blown into the middle of week-after-next. He dared 
 not discharge at them a dissolution ; for the ministerial 
 hand had only recently smitten him for so angering the 
 Commons. 
 
 But for Lord Montagu there were still greater sur- 
 prises and still greater anger, rising even to the 
 "unprecedented" point. When the summons arrived, 
 whose significance the members well knew, the House 
 was just coming to a vote on the resolutions. They 
 were not to be thus wheedled out of denouncing the viola- 
 tor of their rights. As in a somewhat similar case dur- 
 ing the resistance to Charles I., they ordered the Speak- 
 er not to quit the chair until their business was finished. 
 But no Holies and Valentine were needed now to seize 
 a reluctant presiding officer and force him back into his 
 
 1 The Commons deny that their .fournal was put In this condition for the 
 purpose of concealing anytliing. It was, they said, ttie rough, untranscribed 
 draft. Quite true, doubtless; but note that on former days the Governor had 
 met no such difficulties. (Pub. Rec. S. C, M8., XXXIII., 208.) Speaker 
 Lowndes appeared in a newspaper article in the South Carolina Gazetlv for 
 November 12, in reply to the aspersion of Lord Montagu, and maintained 
 that he had as good a right as the Governor to inspect the Journals over night. 
 To my mind there is hardly a doubt that there was a desire to keep the Gover- 
 nor in ignorance in order to prevent an adjournment.
 
 ^6 CONSTITUTIONAL HISTORY OF S. C. 
 
 place. ^ The House refused to come until it had passed 
 its resolutions. This was an unprecedented action of 
 the most serious character. If the Commons began to 
 disregard the summons of the Governor and continued 
 to transact business, it was a short road to destroying 
 the royal prerogative of prorogation and dissolution. 
 Having passed their resolves, the House attended the 
 Governor in the Council chamber, where they were 
 angrily reprimanded and then prorogued. 
 
 Governor Montagu recognized the gravity of the 
 crisis in which the royal government in South Carolina 
 stood. On November 4, 1772, he wrote to the minis- 
 try that the state of affairs was most alarming and un- 
 less arrested would shake the very power of the King. 
 The Commons, he said, had made three innovations 
 that would bring about a revolution in the "very nature 
 of the constitution." First, for three years they had 
 maintained their right to dispose of the public money on 
 their sole authority ; second, they had proceeded with 
 business after being summoned instantly to attend the 
 Governor ; third, their committee of correspondence 
 had continued to act after a prorogation.^ On this last. 
 Lord Montagu put special emphasis, as it put it utterly 
 beyond his power to stop schemes of agitation or combi- 
 nation that were hostile to himself or to the King's 
 interests. 
 
 1 In 1628-9 the British House of Commons summoned a tax collector for con- 
 tempt; the King prorogued them for the protection of his servant. On their 
 reassembling he again ordered them to adjourn. Eliot rose to propose resolu- 
 tions ; the Speaker left the chair, saying that the King had ordered him to do 
 so if anyone attempted to speak. Holies and Valentine seized him and forced 
 him down into the chair, the former exclaiming, "God's wounds, you shall sit 
 here till wp please to rise !" The resolutions were passed and the House ad- 
 journed. In an angry, threatening speech the King dissolved them. (Taswell- 
 Jjangmead, 576.) The similarity in tlic South Carolina case was, of course, no 
 slavish imitation of the above instance, hut a similar result from similar causes 
 in a House which professed the British House of Commons to be its model. 
 
 2 Pub. R«c. S. C, MS., XXXIII., 191.
 
 APPROPRIATION OF MONEY. 77 
 
 Further details of the contest are needless. On Sep- 
 tember 13, 1773, the Commons again manifested their 
 defiance of the additional instruction and their determi- 
 nation to control their own money affairs by ordering 
 the treasurers to issue ^1,500 currency to the Commis- 
 sary general for poor Irish immigrants. A few days 
 later they ordered three thousand pounds.^ 
 
 Just at this time occurred the grand climacteric in the 
 revolution which had been going on for fifty years in 
 the relations of the Commons and the Council. The 
 occasion was so interesting and the outcome so im- 
 portant that we must open another chapter. 
 
 1 Com. Jour. S. C, MS., XXXIX., pt. II., 76, 98; Pub. Rec. S. C, MS., 
 XXXIII., 305.
 
 CHAPTER X. 
 
 Attempt of the Commons to Abolish the 
 Legislative Character of the Council. 
 
 In the many contests to wrest power from the Coun- 
 cil, the Commons had always denied their authority in 
 framing money bills, but had admitted the necessity of 
 their concurrence for the passage of those and of all 
 other regular acts of legislation. Demurrer was often 
 made by members as a matter of private opinion ; but 
 no official declaration against the necessity of the Coun- 
 cil's assent occurred until very late in the provincial 
 history. 
 
 When in their message of April, 1770, the Council 
 said that they could not allow the action of the Commons 
 regarding the ^10,500 to pass unnoticed, lest their own 
 legislative power should be construed into mere advice 
 to the Governor, they showed their apprehension of 
 such a claim. 
 
 As early as about 1745 or 1750, in a dispute between 
 the two bodies, certain Commoners waited upon the 
 Governor to ascertain whether or not he would accept 
 and sign the tax bill if sent to him from the Commons 
 without having been passed by the Council. But this was 
 too radical and sudden. The Governor replied that he 
 could not. From then on the theory of the Commons, 
 asserted from time to time with more or less explicitness, 
 but never brought to the test, was that the vote of the 
 Council was mere advice to the Governor to pass or re- 
 ject a law, which he might follow or ignore as he
 
 COMMONS TO ABOLISH. 79 
 
 pleased.^ He could certainly refuse to accept the "ad- 
 vice" of an affirmative vote, and veto the bill; but whether 
 he could ignore the "advice" of a negative vote and 
 pass an act against the will of what the King declared to 
 be a coordinate lawmaking body with the Commons, 
 was quite another question. As the third quarter of the 
 1 8th century advanced, the opinion became more and 
 more general that the Council was not properly an inde- 
 pendent branch of the legislature. Though the Com- 
 mons never attempted to pass laws simply by their own 
 authority and the concurrence of the Governor, they yet 
 about 1754 dropped the appellation of "Upper House" 
 and "Lower House," and refused to carry on any com- 
 munications in which those terms were used. In the 
 year 1763, e. g. , a message was sent to them signed 
 "Speaker of the Council." The Commons refused fur- 
 ther intercourse with the Council until the offensive 
 words were replaced by the accustomed "President"; for 
 the term "Speaker," they said, implied that the Coun- 
 cil was a House of the legislature.'- In their resolutions 
 of April, 1770, the Commons formally declared that the 
 Council was no upper house ; but, they said, an upper 
 house was needed ; they expressed a desire that there 
 might be such a true upper house, and announced their 
 intention of petitioning that one should be appointed by 
 the King. 
 
 The great ;,{^i 0,500 contest brought the whole consti- 
 tution of the province of South Carolina into examina- 
 tion. Never before had the royal elements scrutinized 
 so closely the letter of the law to justify their privileges ; 
 never before had the Commons gone so far in the asser- 
 
 1 Pub. Rec. S. C, MS., XXXIII., 306. 
 
 2 Cora. Jour. S. C, MS., XXXVI., 30.
 
 8o CONSTITUTIONAL HISTORY OF S. C. 
 
 tion of their powers. Each instance of derogation by 
 the Commons from the authority of the Council was to 
 gain some specific end. It was to be expected that the 
 most protracted and serious contest that ever occurred 
 between the two bodies would leave some new and 
 important change in their permanent relations. Such 
 was the case. In 1773 a judicial decision and the ac- 
 tion of Commons united to deny the legislative charac- 
 ter of the Council with a deliberation and emphasis 
 which make this one of the most important incidents in 
 the long struggle. This was not precipitated directly 
 by the money bill, though the highly charged state of 
 public feeling due to the still pending ^10,500 was the 
 efficient cause. 
 
 In 1773 the Council was composed of eight members, 
 not including two who had long been absent in England 
 and the Lieutenant-Governor, who after March 10 
 administered the government. Three of these were in- 
 dependent South Carolinians; five were royal officehold- 
 ers, mostly if not altogether Englishmen. This latter 
 group was composed of the chief justice and an assistant 
 judge, both Englishmen, the secretary of the province, 
 the receiver general of His Majesty's quit rents, and the 
 superintendent of Indian affairs.^ John Drayton, his 
 son William Henry Drayton, and Bernard Elliott, all 
 independent South Carolinians, maintained in the Coun- 
 cil the same doctrines their fellow citizens preached 
 in the Commons. 
 
 Part of the proceeding of the Council on August 26, 
 I773» ws^s a protest by two of the minority against the 
 business blocking conduct of that body. This paper 
 
 1 Pub. Rec. of B. C, MS., XXXIII., 256; XXXIV., 228; XXXVI., 279.
 
 COMMONS TO ABOLISH. 8i 
 
 they gave to Mr. Thomas Powell to publish in his 
 journal, the South Carolina Gazette, which on August 
 30 he accordingly did. The Council considered 
 Printer Powell's act a violation and contempt of their 
 privileges and committed him to the common jail in 
 Charleston, on a warrant signed by their President, Sir 
 Egerton Leigh. 
 
 When the Habeas Corpus Act was made of force 
 in South Carolina by the Assembly in 17 12, it was pro- 
 vided that any two justices of the peace (one being of 
 the quorum) should have authority to grant the writ. 
 On September 3, 1773, Messrs. Rawlins Lowndes and 
 G. G. Powell, formerly assistant judges but now only 
 magistrates, in accordance with this law granted the 
 confined printer his liberty. Now, it happened that 
 Rawlins Lowndes was Speaker and Col. G. G. Powell 
 a member of the Commons House of Assembly, which 
 was at that time in session. For their "most atrocious 
 contempt" upon the Council, that body requested the 
 Commons to withdraw from these two gentlemen the 
 protection of their privileges of membership, that they 
 too, doubtless, might be committed to the common jail. 
 This the House refused to do, though both members 
 desired it. On the contrary, the Commons ordered all 
 the papers in the case to be laid before them and pro- 
 ceeded to summon and examine persons. Thus Mr. 
 Lowndes's and Mr. G. G. Powell's decisions are 
 preserved verbatim, and most important and interest- 
 ing decisions they are; for that of Mr. Lowndes is the 
 most complete and deliberate statement of the consti- 
 tutional theory of the Commons regarding the legisla- 
 ture of the province that exists. Moreover, it forces the 
 issue to its logical conclusion, as had never been done
 
 82 CONSTITUTIONAL HISTORY OF S. C. 
 
 before. The substance of Mr. Lowndes's opinion is as 
 follows: 
 
 I hope that my connection with the Commons House 
 of Assembly does not prevent my according to every 
 other part of the community their just rights. The 
 laws provide for the safety of every man's person, liber- 
 ty and estate. By the Great Charter no man shall 
 be imprisoned but by the judgment of his peers or the 
 law of the land. This and all similar statutes for the 
 security of the subject were made of force in this province 
 by act of Assembly in 171 2. 
 
 Both Houses of Parliament have from time immemor- 
 ial exercised the right of imprisoning during their sit- 
 tings persons guilty of contempt, and it is the uniform 
 practice of the courts never to interfere, but if appealed 
 to, always to remand the prisoner to confinement, as the 
 Houses of Parliament are the supreme judges of their 
 privileges. Let us therefore enquire what resemblance 
 exists between the Council in South Carolina and the 
 House of Lords in England, that the former should 
 arrogate to themselves the privileges of the latter. 
 
 "The Lords are a permanent body, inheriting their 
 right of legislation independently of the crown." They 
 are the supreme court of judicature of the realm, ^ and try 
 their own members on life and death without beinsr 
 upon oath. The Council, on the other hand, are mere 
 appointees of the K^ing, removable at his pleasure. 
 Therefore they lack the greatest essentials of a legisla- 
 tive body to approximate them to the Lords, permanen- 
 cy and independence. Whereas the British Peers are 
 
 1 We remember that the Governor and Council were by the royp.l In- 
 structions the supreme court of appeal in South Carolina, but that this juris- 
 diction was never exercised.
 
 COMMONS TO ABOLISH. 83 
 
 numerous and are the bulwarks for the people against 
 tyranny, the Council are few, only three at a meeting 
 often determining matters of the greatest import; and 
 besides, "the object of their care is more particularly 
 the Prerogative.'' True, the Governor is restrained from 
 passing any law to which the Council has not assented. 
 From this single circumstance of the Governor's being 
 subjected to their advice they have arrogated to them- 
 selves the position of an upper house of the legislature. 
 "As if a right to advise the Governor to pass or reject a 
 bill involved in it of necessary consequence all other 
 privileges belonging to the Upper House of Parlia- 
 ment 
 
 ' 'I am of opinion that there is no foundation in law 
 for the commitment" of Printer Powell. It is a "usur- 
 pation of power in the Council. . . . The commit- 
 ment is therefore in my opinion to be considered merely 
 as a commitment by the Privy Council, and in that case 
 has no other authority than if done by a private magis- 
 trate. The subject has his remedy by habeas corpus 
 in either case, and we are now to consider whether the 
 matter charged is an offense at law, and if an offense 
 whether bailable or not. 
 
 "I am of opinion that it is no offense at law. 
 
 "I am therefore for ordering the prisoner discharged. " 
 
 Col. G. G. Powell's much shorter judgment to the 
 same effect was then read. The House unanimously 
 endorsed the opinions of the two justices, and addressed 
 the Lieutenant-Governor to suspend all the Councillors 
 who had been concerned in this usurpation of power and
 
 84 CONSTITUTIONAL HISTORY OF S. C. 
 
 unparalleled insult to the Commons. Of course the 
 request was refused.^ 
 
 Printer Powell brought suit against Sir Egerton Leigh, 
 who signed the warrant, for assault and false imprison- 
 ment." The court, presided over by King-appointed 
 judges, two of whom as Councillors had helped order the 
 arrest, naturally declared that the Council was an upper 
 house of the legislature, and discharged the suit. 
 
 In the spring of 1775, William Henry Drayton was 
 suspended from the Council on the address of the place- 
 men there, because he had published aspersions upon the 
 King's officers and government in his "Letter from 
 Freeman," August 30, 1774, and had denied that the 
 Council was an upper house of Assembly. In his 
 defense he seeks to put his persecutors in a dilemma. 
 Judges Gordon and Gregory, he says, themselves Coun- 
 cillors, dismissed the suit of Printer Powell against Sir 
 Egerton Leigh, on the ground that the latter could not 
 be questioned outside the Council for any acts or words 
 in its proceedings, because that body was a house of the 
 legislature analogous to the House of Lords. Now 
 these judges, as members of the Council, contradict 
 their own decision by indicting me before an outside 
 jurisdiction, the Lieutenant Governor.^ 
 
 Drayton's argument proves that the Council was 
 no fit legislative body, but it does not prove that it was 
 no legislative body. The general principle that its 
 members were not to be questioned by any outside juris- 
 diction did not exclude the right of the Council itself to 
 arraign a member before some authority constituted for 
 
 1 Com. Jour. S. C, MS., XXXIX., pt. II., 70-88, 96; S. C. Guz., Sept. 2, 6, 
 13, 1773. r , , , , i- , , 
 
 2 This seems to have been a civil suit for damages. 
 
 3 Com. Jour. H. C, MS., XXXIX., pt. 11., 254-69.
 
 COMMONS TO ABOLISH. 85 
 
 the purpose by the same law that created the Council 
 itself. This was really not trying a member before 
 an outside jurisdiction, but was simply requesting that 
 outside power to execute upon him the sentence the 
 body itself had come to after conducting the trial, 
 or discussion, by itself. True, the Governor 
 could suspend a Councillor independently without this 
 process, but only under extraordinary circumstances; 
 this phase of the law was not under discussion. 
 
 In their commitment of the treasurers in 1771 for 
 refusing to advance ;^3,ooo on the sole order of the 
 Commons, that body was wholly outside the formal 
 constitution. Their contentions were just, but not 
 legal. The disorder to which final disruption from 
 England was due was that law and justice had ceased 
 to be the same. In all their efforts to destroy the power 
 of the Council, it was an independent, very constitution- 
 al people struggling against an unnatural external 
 authority and seeking to find constitutional justification 
 for their acts. The root of all the trouble lay in 
 the fact that the Council was the organ of a foreign 
 autocrat, who sought by means of them and his equally 
 obedient Governor or Lieutenant-Governor to reduce 
 the province to a kind of royal apanage. The two 
 extremes of republicanism and absolutism met in a con- 
 test not susceptible of compromise. 
 
 When the Earl of Dartmouth, who had succeeded 
 Hillsborough in the superintendence of American affairs, 
 heard of the action of the Commons in the Printer 
 Powell case, he despaired of ever reestablishing the 
 power of the Council.^ Lieutenant-Governor Bull, 
 
 1 Pub. Rec. S. C, MS., XXXIV., 2.
 
 86 CONSTITUTIONAL HISTORY OF S. C. 
 
 wisest of all the King's servants in South Carolina, had 
 long been without hope, since the Commons refused 
 to defer to the King's express command in the additional 
 instruction. 
 
 It is useless to detail the many parliamentary strate- 
 gies by which the Commons sought to pass the tax bill 
 with the ;^ I o, 500 inserted ; but the Council had been 
 roused to the highest resentful vigilance and could not 
 be entrapped. Peril from the Indians, who were again 
 on the war path, from bankruptcy, from imminence of 
 the suspension of government, could move neither party 
 to concession in the struggle that had already lasted for 
 four years. The Council became such objects of op- 
 probrium that scarcely a respectable citizen could be 
 found to fill vacancies. 
 
 On March 22, 1774, the Council again rejected the 
 tax bill, because of the item of ;^io, 500 to reimburse 
 the treasurers for the sum they had given the commit- 
 tee of the Commons to send to England in 1769 for the 
 defence of British and American liberty. The Com- 
 mons did not go to the logical extent of their theory 
 that the Council was no branch of the legislature and 
 send the bill to the Lieutenant-Governor for his appro- 
 val. To have done so would have been a farce. But 
 they invented a new way to ignore the lawmaking 
 power of the Council and enforce their own sole will. 
 The clerk of the House was ordered to issue to the 
 public creditors certificates of indebtedness signed by 
 himself and five members. These were taken in pay- 
 ment of debts and passed as money among the people, 
 Lieutenant-Governor Bull of all men in South Carolina 
 alone refusing to accept them. He had received not 
 one farthing of salary since 1769, preferring to suffer
 
 COMMONS TO ABOLISH. 87 
 
 deprivation rather than countenace the assumptions of 
 the Assembly by treating their paper as having lawful 
 value. ^ 
 
 On the 23d of March, 1774, the Commons did by 
 their sole authority an act that was more purely legisla- 
 tive and more assertive of their supreme control of all 
 money matters than any former instance. There was a 
 law at that time that the owner of an executed slave 
 should be paid i^200 currency for the loss of his proper- 
 ty. On the above-mentioned day the Commons resolv- 
 ed that the value of the negro should be appraised by 
 the magistrates and freeholders conducting the trial, and 
 that the sum they named should be paid the owner. 
 The attention of public officers was directed to this reso- 
 lution, and they were ordered to conform to its require- 
 ments. Inspection of the public accounts shows that 
 the resolution of the Commons was observed as law, 
 and that two or three times the amount of money was 
 taken from the treasury under the new rule as under the 
 old.- Another act, at least semi-legislative in character, 
 consummated by the Commons alone, was that on 
 August 2, 1774, they called for a loan of ;{^ 1,500 ster- 
 ling for the expenses of their delegates to the Continent- 
 al Congress and promised to repay the amount with 
 interest.'^ 
 
 These acts have a deep significance. The question 
 What is the state in any government .' can be answered 
 by ascertaining what power can dispose of the public 
 money and have its mandates carried into effect. The 
 theory that the King of England, or even the whole 
 
 1 Pub. Rec. S. C, MS., XXXIV., 24, 36. 
 
 2 Com. Jour. S. C, MS., XXXIX., pt. II., 159, 211. 
 
 .3 Cora. Jour. S. C, MS., XXXIX., pt. II., 172; Pub. Rec. S. C, MS., XXXIV., 
 188.
 
 88 CONSTITUTIONAL HISTORY OF S. C. 
 
 Parliament, was the state in the colonies was bein^ 
 rapidly proved to be fallacious; the state had shifted to 
 America. The only logical consequence was a radical 
 political reorganization which would give a true express- 
 ion to the changed actuality. This reorganization took 
 place in 1776. In the light of these considerations, we 
 see plainly the essential relationship between the events 
 we have been tracing in the provincial history of South 
 Carolina and the American Revolution. 
 
 For almost exactly four years there is a complete 
 blank in the statutes of South Carolina. Between 
 March 20, 1771, and March 4, 1775, not one law 
 was passed. An act reviving certain general duties and 
 an act against counterfeiting the money of other colon- 
 ies, both passed within a few days of each other in 1775, 
 were the last laws enacted under the royal government. 
 After 1769 no general tax bill was passed, with or with- 
 out the £\o, 500.^ 
 
 The dispute between the Commons and the Council 
 regarding their powers and relations was never settled. 
 When Governor Lord Campbell arrived in June, 1775, 
 he addressed his message to "The Lower House of 
 Assembly." Instantly the old furies leaped up. — May it 
 please your Excellency! We cannot receive any com- 
 munication so addressed. "It implies that there is 
 another House in this colony dignified with the appel- 
 lation of Upper House of Assembly, which we utterly 
 
 deny We cannot receive or admit on our 
 
 Journals an address derogatory to the honor and dignity 
 of this House." For five days the Commons simply 
 met and adjourned. At last the Governor returned his 
 message, addressed to "The Commons House of Assem- 
 
 1 statutes at Large ot S. C, IV., 331, 355.
 
 COMMONS TO ABOLISH. 89 
 
 bly," and disclaimed any special reason for using the 
 term "Lower House." He was a stranger.^ On 
 September 15, 1775, Lord Campbell dissolved the last 
 Assembly that ever sat in South Carolina under the 
 British Government, and that same day fled to a man- 
 of-war in the harbor.- The next lawmaking body that 
 met was a single house of revolutionary origin, which 
 could enjoy without hindrance the supreme power 
 for which the Commons had so long striven. 
 
 1 Com. Jour. S. C, MS., XXXIX., pt. II., 302-.5. 
 
 2 Com. Jour. S. C, MS., XXXIX., pt. II., 314 ; Charleston Year Book 
 for 1884, 335.
 
 CHAPTER XI. 
 
 Conclusion. 
 
 We have seen the EngHsh constitution in its new 
 home reproduced and adapted to local requirements. 
 It was the spirit of that constitution, and not its mere 
 forms, that worked in the history of the province. 
 
 Americans of the present day are accustomed to con- 
 ceive of an ordaining convention as necessary to estab- 
 lish a constitution, and may even fall into the absurdity 
 of forgetting that the colonies before the Revolution 
 had any constitutions. On the contrary, "the constitu- 
 tion," and "constitutional" were among the commonest 
 phrases, though, as is necessary under an "unwritten 
 constitution, " exactly what was meant depended largely 
 on the individual speaking. Viewed from the juristic 
 standpoint, the royal instructions to Governors must be 
 considered the written constitution of South Carolina. 
 In no respect did they clash with the letter of acts of 
 Parliament. They were divided into sections relating 
 to the frame of government, the privileges and relations 
 of the branches, the duties of officers, rules of admin- 
 istration, miscellaneous and temporary matters, and 
 sometimes even contained a virtual bill of rights — a 
 bill of rights, however, which, like "The Joyous 
 Entrance" and other Netherland charters of liberties, 
 was the grant of a sovereign as of grace, and not an 
 assertion on the part of the people as of right. As 
 Motley remarks, there is an essential difference between
 
 CONCLUSION. 91 
 
 liberties and liberty. There is much similarity between 
 some parts of these instructions and royal charters, and 
 the early State Constitutions. The frame of govern- 
 ment of South Carolina was created by the instructions, 
 and was carried on in strict accord with them save inso- 
 far as the Commons House of Assembly was able to 
 vindicate a more democratic system. 
 
 The position of the Governor and Council was logi- 
 cal. They observed the instructions in all particulars 
 as the constitution. The position of the Commons did 
 not have the same consistency. When, in the early 
 years of the development we have traced, the Commons 
 pleaded that the intention of the King in the instruc- 
 tions was thus and so, they admitted in effect the valid- 
 ity of those articles as the colonial constitution. Even 
 in recognizing the existence of the Council the Com- 
 mons made the same admission. The only law creating 
 the Council was the royal instructions. To acknowl- 
 edge the sections creating the Council and deny those 
 defining its functions was wholly illogical. The Coun- 
 cil's right to existence and its right to coordinate legisla- 
 tive power were derived from the identical document. 
 The Commons treated the instructions as the constitu- 
 tion where it suited their purposes, but refused to regard 
 those sections that contradicted their interest and 
 desires. 
 
 The significance of the fact that the colonists had 
 been accustomed to written constitutions was great 
 when they were thrown upon their own governmental 
 resources. It was exemplified in the immediate and 
 universal adoption of written frames of government as 
 things already familiar. 
 
 What the Commons really made their model was the
 
 92 CONSTITUTIONAL HISTORY OF S. C. 
 
 constitution of the British House of Commons. They 
 claimed, and with varying success vindicated, almost 
 every privilege of their prototype. This claim they 
 based on the laws extending to the colonies all the 
 rights of Englishmen, and occasionally on the royal 
 charter to the Lords Proprietors. The actual constitu- 
 tion of the province cannot with accuracy be designated. 
 It can be exhibited but not defined; for it was not a set- 
 tled thing, but was in process of becoming. To learn 
 the full significance of the events we have witnessed, 
 we must look beyond the Revolution to the constitution 
 as expressed in the formal documents of 1776 to 1790. 
 
 Not until the Council began to be filled with placemen 
 and ruled by a foreign element did the Commons at- 
 tempt to deprive it of its legislative power. The history 
 of that King-appointed body is one of continual decline. 
 Before 1725 it amended money bills, appointed its quota 
 of the committee of correspondence, and helped elect 
 the agent. Gradually its power of amending the budget 
 is taken away. In 1754 it ceases to be styled regularly 
 the Upper House; in 1756 it loses its part in the control 
 of the agent and the committee of correspondence. 
 The Commons begin to grant the Governor funds with- 
 out consulting the Council, and finally without reference 
 to any other party in the government presume to appro- 
 priate money for their own purposes. The Council 
 make a final stand from 1769 to 1775, and is formally 
 declared by two judges and the unanimous vote of the 
 Commons to be no branch of the legislature, but a mere 
 Privy Council to the Governor. 
 
 This revolution in the internal government of the col- 
 ony was independent of the American Revolution. There 
 can be no doubt that if South Carolina had remained
 
 CONCLUSION. 93 
 
 for a few years more a British province, there must have 
 been a great change in the constitution of its legislature. 
 When the Revolution came and the opportunity was 
 given the Commons to put their theory into practice, 
 they were perfectly consistent in dealing with the Coun- 
 cil. The historical continuity of the constitutional de- 
 velopment before and after the Revolution was unbroken. 
 When the Constitution of 1776 was formed, the old 
 Council of twelve was maintained as a Privy Council of 
 seven, with all the functions of its predecessor except 
 the legislative. As the Commons had desired the King 
 to create a real Upper House, in 1776 they ordained 
 that the House of Representatives, standing for the new 
 sovereign, the people, should elect such a body, to be 
 called the Legislative Council. In the Constitution of 
 1778 the Privy Council was still continued, with nine 
 members, and a Senate elected by the people took the 
 place of the Legislative Council. The old Council as 
 the Carolinians understood it at the outbreak of the 
 Revolution still existed; but this body was not the model 
 for the Senate. In 1790 the Privy Council was abolished, 
 and only for a short time, as the Executive Council of 
 1 86 1, did any remnant of the once powerful legislative 
 and executive Council reappear in South Carolina history. 
 In the Constitutional Convention of 1895 there was a 
 proposal to create a board of pardons to assist the Gov- 
 ernor; but this attempt to revive a system of shackling 
 and propping the executive found no favor. The Senate 
 of the present is the descendent of His Majesty's Coun- 
 cil in its early and better days. Thus does the fittest 
 survive in American constitutional history and the unfit 
 drop away as its uselessness is demonstrated.
 
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