South Carolina: A Short History, 1520-1948

By David Duncan Wallace | Go to book overview

CHAPTER XLII
THE COURTS AND THE LAW, 1783-1865

SOUTH CAROLINA colonial history supplies an interesting chapter in the development of the judicial nullification of legislation, as outlined above at pages 233-235. The development continued consistently after the Revolution. In 1789 the court declared that "It is clear that statutes passed against the plain and obvious principles of common right and common reason, are absolutely null and void," but avoided formal annulment by ruling that the statute of 1788 on which the case turned was not intended to apply, though by its words it specifically did, where it would work such manifest injustice.1 In 1792 was decided the South Carolina case of Bowman vs. Middleton, the seventh instance (omitting a dubious case in 1778) of American courts after 1775 annulling legislation. In Bowman vs. Middleton the South Carolina court annulled the act of 1712 confirming the title of a grant of lands previously granted to another person as against common right and Magna Charta. This was a reaction against the colonial tendency to regard the Assembly as supreme in legislation (except for the limitation of the royal and parliamentary authority) and as warranted in encroaching according to its own ideas on individuals, the executive, and the courts. During the next six years our courts regularly assumed the right of annulling unconstitutional laws, though exercising it only against a Charleston ordinance. The trial judge in 1787, and again in 1792, declared features of "Sumter's law" unlawful, but both juries disregarded them, and their verdicts stood.

In the reorganizing of the courts in 1798, Governor Charles Pinckney, true to his democratic principles, combatted the courts' annulling power. Ably presenting the argument against that right, he urged that if it really existed, it should be taken away by Constitutional amendment.

Defects of Lower Courts. --The failure of the county court system of 1785-99 left a hardship in the lack of courts for small causes which the county court system of the twentieth century is just beginning to remedy. Governor McDuffie urged county courts in 1836, but this and many another call for such relief or the enlargement of the jurisdiction of magistrates produced no effect.

____________________
1
McGovney as above, pp. 5-6; 1 Bay, 93.

-409-

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