« ZurückWeiter »
In the face of those authorities, how can I presume to decide, by omitting its insertion, what law is obsolete or not—what law is in force or not— unless where legislative authority has expressly defined the line of my duty in the case before me? I may (as I shall do) suggest that a law is obsolete, but I cannot leave it out, if it bears on the face of it a public character.
If it be a good rule to be cautious in committing discretionary authority, it is a still better rule to be cautious in assuming it; and I hope to be forgiven if in my own case I feel the necessity of this caution. I have therefore thought fit, on mature consideration, to submit to his Excellency the Governor the following plan of publication, viz:
To insert first, all the laws of a CONSTITUTIONAL character, relaing to South-Carolina as a Province, and as a State.
I have inserted Magna Charta, the Petition of Right to Charles 1st, the Habeas Corpus Act, and the Bill of Rights; partly under the specific enactments, and partly under the authority of the following section of the Act of Assembly of 1712. (Grimke's Public Laws, p. 98) viz:
"Sec. 3. All the, Statutes of the Kingdom of England, relating to the Allegiance of the people to her present Majesty Queen Anne, and her lawful successors, and the several public oaths, and requiring the tests to be subscribed by the, people, and also all such Statutes in the Kingdom of England as declare The Rights And Liberties Of The Subject, and enact the better securing the same; and so much of the said Statutes as relates to the above mentioned particulars of the allegiance of the people to their Sovereign, the public oaths, and subscribing ttie Tests required of them, and The Declaring And
SECURING THE RIGHTS AND LIBERTIES OP THE SUBJECT, are hereby enacted
and declared to extend to, and to be offull force in this province, as if particularly enumerated in tliis act."
It is true, that much of these ancient English documents are now in fact obsolete; the provisions therein enacted have done their duty, and they are in great part superceded; but as the Legislature of South Carolina has thought fit expressly to enact and adopt them, and has not yet seen fit to reject or repeal them, I am bound to insert them; nor can I exercise a discretionary power of rejection in direct defiance of an existing law of the land.
All the Statutes at large of England, in all their editions, commence with the amended Magna Charta of Henry III., as re-enacted and confirmed by Edward I. This was the case with Joseph Keble's edition, adopted by the Provincial Assembly, Dec. 1712. The Great Charter of King John, the charter, by way of eminence, of our Historians, was not then known to the public by any authoritative edition. It has been made known since by the publications principally of Rapin the Historian, Sir William Blackstone, the engraved fac simile of the Cotton library manu script, and the last magnificent edition of the English Statutes at large, recently published by Mr. Cooper, under the authority of the Parliamentary Committee. From these sources now before me, I have thought it desirable to republish it in my first volume, under the authority of the 3d Section of the Act of 1712, and the discussion in the 1st vol. of Bay's Rep. 384 et seq. These documents have undoubtedly suggested our American idea of written Constitutions. The Colonial Charters laying at the foundation of our Laws, I have deemed it necessary to republish with Chief Justice Trott's useful remarks. The Constitution of John Locke, though not formally adopted by the Legislature, I was compelled to republish, because the language employed in some of our early acts of Assembly would be unintelligible without a reference to that document.
All the other acts, constitutions, and illustrations of the legislative proceedings of the State, inserted under the class of CONSTITUTIONAL documents, are well worth preserving as parts of our constitutional and legislative proceedings; and unless contained in this publication, they would in a few years be lost, no more to be collected or remembered.
The second part of this work will consist of our LEGISLATIVE enactments, or public laws properly so called; repealed and unrepealed, obsolete or otherwise; with notes and references designating such laws or parts of laws as may be repealed, or considered as obsolete in a popular sense, although not so declared by any legislative authority; the only existing authority, that has the right to expunge them : an authority, which in my opinion the Legislature cannot delegate to any man or set of men. It is the high and exclusive prerogative of our Legislature; to be exercised by them and by them alone.
TABLE OF CONTENTS.
Judge Trott's introduction to the Charters of the Province.
Table of Contents of the first Charter.
The first Provincial Charter.
Table of Contents of the scond Charter.
The second Provincial Charter.
Extracts by the Editor from the minutes of the Provincial Legislature, rejecting the Constitutions proposed for Carolina.
John Locke's Constitution, with reasons for inserting it.
Act of 23d Dec. 1719, declaring the session of the Assembly valid.
Act of 17th June, 1720, for supporting the present Government, and renouncing the Proprietary Government.
Act of Parliament of 1729, establishing the agreement with seven of the Lords Proprietors, and their surrender of Carolina.
The above three articles relate to the Revolution of 1719.
Notes by the Editor on the various promulgations of Magna Charta.
Table of Contents of the GREAT CHARTER of King John.
The Magna Charta of King John, signed at Runningmede, with a translation.
Table of Contents of the Magna Charta, enacted 9 Hen. 3d.
The Bill of Rights, 1st William and Mary, 1688.
Declaration of American Independence, July 4, 1776.
Act of Cession of Virginia of her title to land north-west of the River Ohio, 1 March, 1784•
. An Ordinance for the Government of the Territory of the' United States north-west of the River Ohio. 13 July, 1787.
Resolution of Congress respecting the'same, July 7,1786.
Supplementary act of Virginia, 30 Dec. 1788.
Constitution of the United States, 17 Sept. 1787, with amendments.
Reportof the Committee of the Senate of South Carolina, Dec. 12,1827, on the nature and origin of the federal government, page 69 of the Reports and Resolutions, in the pamphlet laws of December Session, 1827.
An act to provide for the callipg of a Convention of the People of this State, passed 26 Oct. 1832. (See appendix p. 1 to the Pamphlet Acts of 1834.) The Convention met Nov. 19, 1832.
An Ordinance to Nullify certain acts of the Congress of the United States, purporting to be Laws laying duties and Imposts on the importation of foreign commodities. (See Journal of the Convention, p. 47, 24 Nov. 1832); with the report of the Select Committee, aecompanymg that Ordinance. (See Journal of the Convention, p. 27) 24 Nov. 1832.
An Address to the People of South-Carolina, by their Delegates in Convention, 24 Nov. 1832. (See p. 64 of the Journal of the Convention.)
The Address of the Convention to the People of the United States, 24 Nov. 1832: (See p. 68 of the Journal of the Convention.)
An Act to carry into effect, in part, An Ordinance to nullify certain Acts of the Congress of the United States, purporting to be Laws laying duties on the importation of foreign commodities, passed in Convention of this State, at Columbia, on the twenty-fourth day of November, in the year of our Lord 1832. Passed 20th December, 1832. (See Pamphlet Laws for 1832, page 15.
An Act concerning the Oath required by the Ordinance passed in Convention, at Columbia, 24th day of November, 1832. Passed 20th day of Dec. 1832. (See Pamphlet Laws for 1832, p. 22.)
Second Session of the Convention, March 11,1833.
Report of the Committee, to whom was referred the communication
* See the Collection of Lawn of the United States, relating to public Lands: collected under a resolution of the House of Representatives, 1st March, 1826, and an order dated 19th Feb. 1827; published by Gales <fc Seaton, 1828.
of the honorable B. W. Leigh, Commissioner from the State of Virginia and all other matters connected with the subject, and the course which should be pursued by the Convention at the present important crisis of our political affairs. Adopted 16th March, 1833. (See Journal of the Convention, p. 106.)
The Ordinance passed 15 March, 1833, on occasion of the Compromise Act of the Congress of the United States. (Journal of the Convention, p. 110.)
Report of the Committee, to whom was referred the Act of the Congress of the United States, entitled "An Act further to provide for the collection of duties on Imports." Adopted March 18th, 1833. (See Journal of the Convention, page 121.)
An Ordinance to Nullify an Act of the Congress of the United States, entitled An Act further to provide for the Collection of Duties on Imports, commonly called the FORCE BILL, 18 March, 1833. (See Journal of the Convention, p. 129.)
The present Constitution of South-Carolina, with the amendments to 1834.
Documents, References, and Acts of Assembly relating to the BOUNDARY LINE.
Judge Brevard's Observations on our Legislative history; with additions.
Of the preceding catalogue of acts, statutes, ordinances and documents, the greater part must necessarily be inserted. Concerning some of them, doubts may arise whether they might not be omitted in this edition, altho' (as the Editor conceives) there is indisputable legislative authority for the insertion of every one of them: and as this work is not likely to be undertaken again for many years to come, it seems far better to admit a fewpages more than are absolutely necessary, rather than leave our legislative history incomplete. Nor will the debateable matter now offered and proposed for insertion, occupy more than a third part of the volume at the utmost. When we see the long continued trouble, and the immense expense dedicated by the British Legislature to a work of the same kind, with the most decided approbation of the British public, we can hardly have any reasonable objections to incur a five hundredth part of that expense, in order that we may leave nothing to be desired by a man of legal research, whose professional duties compel him to resort to our collection.
But there is no need on the present occasion to appeal to the liberal example of the British Government in preserving the documents of their legislative history, in the late edition of their Statutes at large ; for, on the 7th day of December, 1827, our Sen-ate
Resolved, That it is desirable and expedient to procure from the Office of the Colonial Department in England, copies of such papers and documeiits as relate to the history of this State; beginning with the Charter ol Charles 2d, in the year 1662. [As the present editor has also done.]
Resolved, That his Excellency the Governor be, and he is hereby requested to take measures for procuring a List of all such papers; also, for ascertaining whether it be practicable to obtain copies of the same, and what will he the probable amount that may be required to pay for them.
Ordered, That it be sent to the House of Representatives for concurrence.
By order of the Senate,
JOB JOHNSTON, C. S.'
In the House of Representatives, Dec. 7, 1827.
Resolved, That the House do concur in the resolution.
R. ANDERSON, C. H. R.
What was done in consequence of this resolution does not appear. But on the 17th December, 1828, the preceding resolution was again passed in the same words, with an additional resolution, that a copy be furnished to His Excellency the Governor by the Clerk.
Which resolutions were concurred in by the House of Representatives, on the 18th Dec. 1828. (See pamphlet Laws and Resolutions for the year 1828, p. 37of the Reports and Resolutions.)
Now, although these resolutions proceeded from a liberal and enlightened view of public expedience, yet the historical documents thus contemplated to be obtained, are not to be compared as to immediate and practical utility with those which the editor proposes to insert in the Constitutional department of the present volume. At any rate, his proposal of preserving these documents as exhibited in the present table of contents, is in perfect harmony with, and in pursuance of the spirit and intentions of the Legislature, twice over expressed in the above resolutions.
It seems to the Editor, moreover, that no future digest, code or collection of the whole or part of our Law, whether under legislative sanction or as a private undertaking, can be accurately or satisfactorily made, unless by the aid of these Statutes at Large with the accompanying notes and references, as a Basis and a platform whereon to build. It will be satisfactory to know what laws have been repealed, rejected, or lost in desuetude, that we may better understand the grounds and reasons of the more modern substitutions. All that can be reasonably required oy any future compiler up to this time, ought here to be found, as I trust it will be. Such, then, are the reasons that induce me to offer this plan for the consideration of the Governor, and through him, of the Legislature; with whom it will ultimately rest to determine how much of it, if any, shall be rejected from the volume.