South Carolina

See pp. 181–184, for a discussion of Carolina’s legal history pre-1712.

A. E. Dick Howard, Commentaries on the Constitution of Virginia (Charlottesville: University Press of Virginia, 1974), 1:105; An Act for regulating of Trials in Cases of Treason and Misprision of Treason, 1712, in The Statutes at Large of South Carolina, ed. Thomas Cooper (Columbia, SC: A.S. Johnston, 1837), 2:539 (for the charge of treason).

The 1225 charter, a confirmation of the 1215 charter, amplified Chapter 39 of the earlier document and renumbered it Chapter 29.

Ibid., 401ff.

Ibid., 286.

Ibid., 406–407. The disallowance shows that protecting rights was not a one-way street.

Jack P. Greene, “Bridge to Revolution: The Wilkes Fund Controversy in South Carolina, 1769–1775,” The Journal of Southern History 29, no. 1 (1963): 20–21; Robert M. Weir, Colonial South Carolina: A History (Millwood, NY: KTO Press, 1983), 305.

Greene, “Bridge to Revolution,” 21.

Ibid., 52.

Ibid., 32, 52.

New Hampshire’s constitution, adopted January 5, 1776, and also temporary, was first.

Fletcher M. Green, Constitutional Development in the South Atlantic States, 1776–1860: A Study in the Evolution of Democracy (Chapel Hill: University of North Carolina Press, 1930), 61. The southeast coastal region (low-country) had 144 representatives, while the more populous western region (up-country) had just 40. Ibid.

Horne, “Evolution of a Constitution,” 7.

Ibid.; Const. 1776, preamble: “…other unconstitutional and oppressive statutes have been since enacted by which the powers of admiralty courts in the colonies are extended beyond their ancient limits, and jurisdiction is given to such courts in cases similar to those which in Great Britain are triable by jury; persons are liable to be sent to and tried in Great Britain for an offence created and made capital by one of those statutes, though committed in the colonies…”.

President Rutledge used this power to veto the bill enacting the 1778 constitution. He resigned his position and his second successor approved the new constitution. See Horne, “Evolution of a Constitution,” 11–12.

Act to ascertain the manner and form of electing members, 137.

Ibid., sec. 9, 137.

Horne, “Evolution of a Constitution,” 9.

Const. 1778, Arts. XXV, XXXIV retained the safeguard against the misuse of admiralty courts that protected the right to trial by jury, and the continued validity of the current laws governing the state, which included the common law and its privileges.

Horne, “Evolution of a Constitution,” 12–13; Stevens, “‘Their Liberties, Properties and Privileges’,” 418.

Stevens, “‘Their Liberties, Properties and Privileges’,” 418.

Ibid.

Ibid., 418–419. South Carolina’s ratifying convention rejected a motion to draft a bill of rights and ratified the federal Constitution without one.

Ibid., 419.

James Lowell Underwood, The Constitution of South Carolina, vol. 3, Church and State, Morality and Free Expression (Columbia, SC: University of South Carolina Press, 1992), 77.

This article stipulated that the franchise requirements would remain as they had been under the 1721 Election Act. See footnote 21, above.

This article was meant to remedy a perceived due process violation that had been perpetrated by the British. The royal authority’s use of admiralty courts to prosecute Americans without the benefit of a jury and in some cases to try the accused overseas was a major grievance, as specified in the constitution’s preamble. This article guaranteed that no such breach of due process rights would be allowed in South Carolina.

Protestant Dissenters effectively pushed for equal treatment with a petition to the general assembly in January 1777. Presbyterian clergyman and assembly member Rev. William Tennent III presented the petition, along with a rousing speech against establishment as a violation of civil liberty and the right of conscience. Article XXXVIII embodied the main concessions dissenters were demanding—to be on an equal footing with Anglicans and to be freed from supporting a church they had not joined. See Edward McCrady, The History of South Carolina in the Revolution 1775–1780 (New York: Russell & Russell, 1969), 209–213. This provision introduced and explicitly endorsed the idea of a general establishment. Protestant Christianity became the established religion of the state. Significantly, the only use of the word “right” in this article referred to a collective right: “that the people of this State may forever enjoy the right of electing their own pastors or clergy.” The declaration required of ministers by this article--“That he is determined...committed to his charge”—was derived from The Ordering [Ordaining] of Priests found in The Book of Common Prayer (1662), https://​justus.​anglican.​org/​resources/​bcp/​1662/​Orig_​manuscript/​ordinal.​htm.

Similar to Pa. Const. 1776, sec. 38. There is no record of the debate on the provisions that made up the 1778 constitution as the legislative journals were not preserved. Cole Blease Graham Jr., The South Carolina State Constitution: A Reference Guide (Westport, CT: Praeger, 2007), 11. A successful criminal sentencing appeal to the South Carolina legislature in 1786 cited the English Bill of Rights prohibition against cruel or unusual punishments but failed to mention this constitutional provision, suggesting the unsettled status of constitutional rights. Stevens, “‘Their Liberties, Properties and Privileges’,” 413; “Journals of the House of Representatives 1785–1786,” in The State Records of South Carolina, ed. Lark Emerson Adams and Rosa Stoney Lumpkin (Columbia: University of South Carolina Press, 1979), 455–458, 696. The records do not indicate whether the legislature found the petitioner’s reliance on the English Bill of Rights persuasive, but perhaps they considered it applicable given the incorporation clause (Article XXXIV) that preserved all the laws currently in force. The common law of England was declared to be in force in South Carolina by an act of the assembly in 1712, with its continued validity assured by the 1776 constitution. Act to put in force in this Province the several Statutes, 413–414; Const. 1776, Art. XXIX.

This article proclaimed the due process guarantee that originated in Chapter 39 of Magna Carta (1215). The 1225 iteration of Magna Carta had already been adopted into South Carolina’s statutes in 1712, making it likely the drafters viewed it as a fundamental right that ought to be given prominence in a constitution. This article was identical to the 1776 Maryland declaration’s Article XXI, except for the deletion of the words “ought to” after “That no freeman of this state,” opening the door to judicial enforcement.

This article asserted civilian control over the military, a corollary of the principle that all political power was derived from the people. It ensured that the people would not be subject to a military dictatorship, a collective right protected in many of the early state declarations of rights.

The language of this article offered a more strongly worded version of the 1776 Maryland declaration’s Article XXXVIII. Freedom of the press in South Carolina had been subject to infringement by both the royal executive and the colonial legislature, but as the Revolution drew to a close, printers were becoming bolder in asserting their liberty and the assembly seemed less inclined to prosecute them for breach of legislative privilege. Stevens, “‘Their Liberties, Properties and Privileges’,” 407, 414–418.

This article broadened the suffrage by removing all religious requirements for voting and by providing a reduced tax alternative to the freehold requirement. While the previous two constitutions spoke of persons “entitled to vote” (1776) and “qualified to vote” (1778), the new constitution stated unequivocally that qualified voters had a “right to vote.”

This section replaced the language of tolerance from the 1778 constitution with free exercise, ended the Protestant establishment, and proclaimed religious freedom for all. It was taken nearly verbatim from the New York Constitution of 1777, Article XXXVIII, with one significant alteration. South Carolina’s drafters changed “the liberty of conscience hereby granted” to “the liberty of conscience thereby declared”—a recognition that liberty of conscience was an inalienable right, not one that could be bestowed (or rescinded) by any earthly power. Communitarian norms of civic virtue and the subordination of individual interests to the public good were giving way to the realities of growing diversity, although the framers continued to insist on the overriding importance of the community by stipulating that religious freedom did not extend to immoral acts or threats to the peace and safety of the state.

Section 2 of this article assured Protestant churches that they would retain their “rights, privileges, immunities, and estates.”

The drafters of the 1790 constitution grouped a litany of rights provisions under Article IX. The Pennsylvania Constitution of 1790 had done the same. Since Pennsylvania’s constitution had been printed in South Carolina newspapers in the months leading up to that state’s convention, it seems likely to have influenced the drafters. The first section, declaring the principle of popular sovereignty, was borrowed from Article IX, section 2 of Pennsylvania’s 1790 constitution. Given their thoughts on the subject (see p. 277, above), it is no surprise that South Carolina’s political leaders bypassed Pennsylvania’s first section declaring “that all men are born equally free and independent.”

Section 2 restated the due process clause present in the state’s previous constitution, as well as the federal Constitution’s prohibitions in Article I, section 10 against states passing bills of attainder, ex post facto laws, and laws impairing the obligation of contracts.

Identical to Pa. Const. 1790, Art. IX, sec. 13. This guarantee, derived from the English Bill of Rights, had already been recognized in the state (see Const. 1778, Art. XL).

Similar to Pa. Const. 1790, Art. IX, sec. 24. Section 5 protected the collective right to a democratic government by prohibiting titles of nobility and ensuring public offices were held during good behavior only. The legislative prohibition on granting titles of nobility also echoed one of the federal Constitution’s limits on the states (Art. I, sec. 10).

Both of South Carolina’s previous constitutions had implicitly protected trial by jury. The framers of the 1790 document made it explicit, although they also made it clear that trial by jury was already common practice in the state. The liberty of the press provision was given added weight by another constitutional provision limiting legislative privilege. Unlike the previous constitutions which declared that the legislature “shall enjoy all other privileges which have at any time been claimed or exercised,” Article I, section 13 of the 1790 constitution closed the open-ended character of the protection by spelling out the specific circumstances in which the legislature could imprison a non-member:

Each house may punish, by imprisonment, during sitting, any person not a member, who shall be guilty of disrespect to the house, by any disorderly or contemptuous behavior in its presence, or who, during the time of its sitting, shall threaten harm to the body or estate of any member, for anything said or done in either house, or who shall assault any of them therefor, or who shall assault or arrest any witness, or other person, ordered to attend the house, in his going to or returning therefrom, or who shall rescue any person arrested by order of the house.