But where are we to gather these constitutional or legal facts? In works of general history, in reports of judicial determinations,* in records of past legislation. Abundance of all this material is at hand; the difficulties will be in the selection. A folio edition of our laws, for instance, was published in 1736, by Chief Justice Trott, who was a great man in his day; a similar one from Judge Grimke in 1790; a continuation by Faust down to 1805; Brevard's digest reaching to 1814. In 1834, a compilation of the State Laws was directed by Act of Legislature. Dr. Cooper, of Columbia, was the man of all others for the undertaking, and he was appointed. He lived to complete the fifth volume, but died before its publication. The part executed by him has many important notes and useful suggestions. To Mr. M'Cord the conclusion of the work was entrusted; who, following in general the plan laid out by his distinguished predecessor, brought down the whole to 1838; adding to it a full and complete index. The profession and the public cannot but be greatly benefitted by such a publication. Not a little will the study of our jurisprudence be facilitated by it: long has something of the kind been demanded. We may expect improvements in the public code, when, at a single view, all the enactments relating to a particular subject may be comprehended. Formerly it would have been a labored undertaking to have attained this: and the result-laws without the clearest reference, and even repugnant to antecedent laws, ultimately-perplexed litigation. Sir Wm. Blackstone complained of this in his day. His work suggested many important changes and improvements; heterogeneous and conflicting enactments were to be harmonized into a single enactment. have lately had a specimen of this ourselves in the Militia and Patrol Laws; in the laws for the regulation of Magistrates, Sheriffs, etc. Could not an intelligent jurist find room for his patriotism to work in such a sphere as this? We suggest the undertaking. As early as 1721, a commit

We

The South-Carolina Law Reporters are in the order stated, and cover the period from 1783 to the present time. Bay 2 vols.; Brevard 3; Treadway 2; Mills 2; Nott & M'Cord 2; M'Cord 4; Harper 1, (extended by Riley;) Baily 2; Hill 3; Riley 1; Dudley 1; Rice 1; Cheves 1; M'Mullan 2; Spears 2-29 vols.

The Equity Reporters are: Desaussure 4 vols.; Harper 1; Bailey 1; Hill 2; Riley 1; Dudley 1; Rice 1; Cheves 1; M'Mullan 1; Spears 114 volumes, extending back to the Revolution.

tee of the Assembly was charged with the revisal of all the laws of the province: nothing further is known of the committee. In 1785 an act was passed providing for a digest. The convention which framed the constitution of 1790, earnestly recommended such a work. "When this edition of the Statutes at Large is finished," says Dr. Cooper, (3 vol. 785) "the labors of a revising committee will be indispensably necessary. What can be the objection to condensing in one single comprehensive law, ten or a dozen acts scat tered through the book?" Est quoddam prodire tenus si non datur ultra. New-York, Massachusetts, Pennsylvania and Virginia, are far ahead of us in these particulars. We leave the matter with whom it may concern,-our business is more with the political, or constitutional, than the legal history of the State.

The charter of 2 Charles (1663) in strictness, should be our starting point. There are some antecedent matters, however, necessary to be understood: an explanation or two, and we dismiss them. The first grant of the country is from England. Whence her right to the territory so lavishly bestowed? If by "prior discovery," was it not defeated by adverse "prior occupancy?" The Cabots under Henry VII. certainly reached the continent before Columbus or Amerigo Vespucci. Oldmixon, and others. deny that they ever reached as far South as Florida. The date here 1497. The Spaniards put in claim to Carolina, or Florida as they call it, in virtue of Ponce de Leon, Vasques de Ayllon, Pamphilio Narvesi, and Fernando de Soto's discoveries. By right of discovery Florida belonged to Spain. She claimed too much, however; in Spanish geography Canada was a part of Florida.* Two colonies of Frenchmen were expelled from Carolina (so called from IX Charles of France) prior to 1565. The Spaniards were the first discoverers the French the first occupants. Then came England, and England is never long in want of a title. She first reached the continent. She had a Papal bull.† She found the country unsettled, and a wilderness. We do not

Bancroft's Hist. U. S., vol. 1, p. 30.

+ So says Mr. Carroll, 1 Hist. Col. S. C. p. x. note. He quotes Bancroft's Hist. U. S., vol. 1, p. ii., as authority; but has strangely misquoted him. Mr. Bancroft does not say that "the claim was founded on a grant of the Roman Pontiff."

stop to settle points of casuistry. Not a Frenchman or a Spaniard had been in Carolina for a hundred years.

The name of Raleigh, says Bancroft, belongs to American history. His great soul looked to the new world and its developments. Elizabeth granted him every thing he could desire a vast empire, and almost unlimited power. His proprietary grant covered part of Carolina under the title of Virginia. In the vicinities of Albemarle and Pamlico were unsuccessful colonies. In 1590 Raleigh assigned his proprietary. In 1606 "The London Company"-noblemen -gentlemen-merchants, obtained a charter; Carolina, north of Cape Fear, was included in it. This, the first colonial charter granted to Englishmen in America, was despotic; it violated magna charta itself. The hardy spirits who were to brave the dangers of the new world, were to do it with the yoke about their necks. James the First drew up a code for this new government. Hence the origin of our chartered governments; hence perhaps, too, the idea of written constitutions so universal in the American States. The pretence under these charters was "the propagation of christianity." Alas that such a "multitude of sins" should be covered under so fair a guize! New England was granted to men jealous of civil and religious freedom-men yearning after liberty. The New England charters were essentially free. Noblemen, knights, and gentlemen coveted wealth from Southern climes; there the rivers washed out golden sand. These men needed plantations-not States; power-not liberty; estates-not homes. The Southern charters contained no element of popular rights.

Sir Robert Heath, Attorney General to the King, obtained, in 1630, a grant covering from 31 to 36 degrees of latitude. It passed through the Earl of Arundel to Dr. Coxe, whose son published an account and map of the country. Tradition says there were attempts under the grant to colonize;-the patent was long after declared void. If Heath did nothing, however, Massachusetts and Virginia did. The former sent a small settlement to Cape Fear ;the latter, in 1663, granted land to George Cathmaid, "as a reward for establishing sixty-seven persons in Carolina.”

The Charter of Charles the Second is at last before us. The constitutional history of South-Carolina, of right, begins with it. To eight of the most distinguished men in England, is secured all the territory south of the 36° parallel

to the St. Matheo (now the St. John's) River. The historian, Clarendon; the novus homo Albemarle, (so celebrated as Gen. Monk at the Restoration;) Craven, a cavalier and a soldier; Ashly Cooper, Chancellor of the Exchequer, (history's dissolute but eloquent and philosophic Shaftsbury ;) Colleton, the royalist; two Berkleys; and Sir George Carteret, were invested by the instrument with almost absolute power, "to enjoy the same," says the charter, "as amply as any Bishop of Durham,"* etc., etc. Allegiance alone was reserved to the crown. "Avarice is the vice of declining years; most of the proprietors were past middle life. They begged the country under the pretence of a pious zeal for propagating the gospel, and their sole object was the increase of their own wealth and dignity." The opposing claims of Spain--the London Company-the Massachusetts settlers, were soon disposed of. Sir John Yeamans, who came over from Barbadoes with a colony of planters about this time, was constituted Governor of all the territory south of Cape Fear. Thus the history of the first charter. There was a second two years after, suited to the ever grasping hands of the proprietors. It extended half a degree further north; southward to 29°; westward to the ocean: covering an almost illimitable territory. All of the present North and South-Carolina, Georgia, Tennessee, Alabama, Missis

* Durham was a County Palatine. The Bishop had in it jura regalia as fully as the King in his palace. All offences were against his peace. All forfeitures accrued to him. He exercised the right of pardoning; appointed judges, etc. Most of these privileges Henry VIII. and Elizabeth abolished; but this did not affect the proprietors; they having all the Bishop's original rights.

The proprietors held by free and common socage tenure, with an annual rent of twenty marks, and one half of all gold and silver ore. They had the fullest powers to constitute a government. To make all laws, etc., analogous to the laws and customs of England, with consent of the freeholders. They might create titles of nobility not used in England; and might-but only if they pleased, for so I understand it-grant liberty of conscience and full toleration to all dissenters. The charter evidently contemplated a large production of tropical commodities, admitting as it does into England for several years free of duty from Carolina, wines, currants, raisins, silks, capers, wax, almonds, oil, and olives. The hope was never realized. A magnificent empire, too, was anticipated, or why those rights of "erecting fortifications," "making war," "exercising martial law," "raising revenues," etc. lodged in the proprietors. From this latter right, however, they expected most to their private fortunes. Every thing was accorded them. "Nothing was neglected," says Bancroft, "but the interests of the English crown and the rights of the colonists." And yet Clarendon, the Chancellor, was impeached not long after for introducing the arbitrary power of the crown into the plantations. 2 Car. Coll. p. 288.

sippi, Louisiana, Arkansas, part of Florida and Missouri, Texas and Mexico, included in it. A noble province this Carolina then!

Between the years 1669 and 1698 five distinct set of laws (or fundamental constitutions) were sent over by the Proprietors for the government af their Province. The object professed was to "prevent the erecting of a numerous democracy." The last set claims to be "with the advice and consent of the Landgraves, and Cassiques and Commons, in this present Parliament assembled." The people in their respective assemblies never ratified these constitutions ;they determined them in 1702 never to have been law in the State-so little disposition had these hardy adventurers to be governed, where they were not represented. Amid the wild scenes of their new homes dreams of liberty soon floated in their fancies; a jealousy of the proprietors at once sprung up, and the seeds of after revolution were sown in that early period. In 1669 came Wm. Sayle as Governor of the Colony; and three years afterwards followed, nineteen "Articles of Instruction" and the model of a town -the Rome doubtless of the new world.

The first set of constitutions are so remarkable, that we design a full notice of them.* Such a notice will not be uninteresting. The early history of the State cannot always indeed be understood, without some knowledge of these; the more ancient statutes have a clear reference to them: titles of nobility.† with large landed interests, were actually created under their sanction. Thos. Smith was created Landgrave with 4,800 acres land. Colleton, Yeamans, and Carteret, were entitled "Landgraves ;"-the same dignity is said to have been conferred upon John Locke. These constitutions, in themselves, are worthy of all attention;-they are worthy of attention, too, from the

There is a manuscript copy of these Constitutions in the Charleston Library; it is a curious old paper, in the hand-writing of John Locke himself. The writing is stiff but very clear; it is not punctuated in any part: a fac simile of Locke's signature is attached to it. The date is 14th July, 1669. The manuscript was presented to the Library in 1833, by Robert Gilmor, of Baltimore. We are indebted to the Librarian for a view of it.

+ The dignities under the Constitutions were to be:

1. Palatine-comes palatii. The term explains itself.

2. Landgrave. A German title, like the Saxon "Thane." 3. Casique. An Indian title. Vide 1 Cooper, 42.