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Sir : — I herewith submit to your consideration, a digest of the 
Koad-Law of the State, which I undertook to make at your request 
as President of the Agricultural Society. The plan pursued has 
been to copy, under proper heads and sections, all the various clau- 
ses of Acts of the Legislature, believed to be of force, which relate to 
the subject of roads and the powers and duties of the Commissioners 
of Roads. To these I have added, by notes, the decisions of our 
Courts, and such explanations as the subject seemed to require. — 
There has been much and very confused legislation on these sub- 
jects. So much that I do not hope I have been able to make every 
thing plain. I have omitted nothing which I supposed was still the 
law, and I flatter myself that the labor of determining what the 
law is, will be much lessened by what I have done. I have added a 
short compendium of the law on the subject of private ways, a sub- 
ject becoming every day of increased interest to the people, and in 
general very little understood. 

Your Excellency's obedient servant, 

9th October, 1850. 


Sec. 1. A road is an open way or passage — ground appro- 
priated for travel. ^°^^> ^^^^^^• 

Sec. 2. A roAd existing over the land of another is a mere 
easement; and, therefore, if the road be discontinued, or the A road is an 
right in any way becomes extinct, the owner of the land is easement, 
entitled to the soil over which the road passed, discharged 
from the easement. So, also, if a road be a dividing line be- 
tween two proprietors, each is the owner of the soil on his 
side to the middle of the road. Witter v. Harvey, 1 McC. 67. 

Sec. 3. Roads or ways are of two kinds — public and pri- „ j 

All 1 -u... 11- 1-^1 Roads are 

vate. All persons have a right to use a p\|y3lic way, but only public or pri- 

particular individuals have a right to use a private way. vate. 


Sec. 4. In the early Acts of the Legislature, there is some 
confusion arising from the use of terms, not the most appro- 
priate to convey the idea intended, such as highways, paths, 
broad paths and private paths. These are all manifestly 
used as descriptive of public ways, although private paths ^^'^ ^""^ ^'^^'^ 
would seem to indicate what we now understand to be a pri- ^^'" ' 
vate way. I find in several of the old Acts : see 9 Stat. p. 
2, 18, 146, the word path used as synonymous with road. 
By the Act of 1703 (9 Stat. 3.) a common road or highway is 
directed to be laid off from the broad path on the north side 
of Ashley river, and another cornrnon road or path is ordered 
to be laid off from the plantation of Thomas Rose to Will- 

From a careful examination of these old acts, I think it 
will appear that highways mean the larger roads, which, in Highways, 
general, are directed to be laid off of a particular width, and ^ at are. 
lead to market towns ; and that broad paths are such other Broad paths 
roads as were laid out and kept in repair at the equal charge what are. ' 
of all the inhabitants residing within certain limits. It would 
be more difficult to determine what is meant hy private paths, 


Private paths, but for the legislative interpretation given by the act of 1741, 
what, and how /g gt^t. 127.) The 5th section recites that by a former act 

laid out, and. ^,., .-'.. , iiii i -c 

kept in repair, high roads and private paths are so blended together as it 
both were designed to be kept in repair by the equal labor of 
the several persons inhabiting the said parishes respectively, 
which, it is conceived, was not the intention of the said act, 
nor onght to Le so interpreted or understood ; therefore, for 
removing doubts concerning the same, and to the intent that 
private paths may be made and kept in repair at the just and 
proportional expense of the several persons concerned and 
interested therein, and at whose application such private paths 
are, or shall be, hereafter laid out, Be it further enacted, 
That all roads laid out, or to be laid out, made, or to be made, 
at the instance or by the applicatio7i of particular persons, 
are hereby declared to be private paths ; and shall be made 
and kept in repair by the proportionable labor and exjjcnse of 
such person or j^ersotis as shall apply for and shall use the 
same in common with that neighbourhood, and by no other 
j)erson whatsoever ; which working upon such private paths 
shall not exempt or excuse the persons working thereon from 
working on the highways," &c. The Gth section authorizes 
the Commissioners to decide all disputes which might arise 
as to which shall be private paths, and which are higliways. 
In the case of Singelton v. Commissioners of Roads, 2 N. 
Private paths & McC. 526, it was decided that these private paths did not 
are not indi- mean individual roads or private ways. According to my 
'^M"f''^'^' understanding, they are not the great roads or paths leading 
°roads. to market towns or public places, but neighbourhood roads, 
connecting one highv/ay with another, or leading to church- 
es, mills, or villages. They are sometimes called thorough- 
fares. 1 McC. 404, State v. Duncan. 

2Q Note 1. States. Sartor. 2 Strob. 61. The road had been used 

with occasion- ^^^ many years, more than twenty, by all persons 'who chose, and had 
al working on, been occasionally worked on by the neighbours. It led from one 
evidence of public road to another, but the Commissioners of the roads had 
pubhc road by jjg^gj. exercised any jurisdiction over it. It was decided that the 
^ ' public had a right to use the road by prescription, and the defend- 
ant was convicted for obstructing it. 

2. In the case of the State v. MoUey, the road had been laid out 
by order of the County Court of Chester. It led from one public 
road to another — passing by a mill. It had not been under the 
control of the Commissioners, and there had been frequent changes 
made by those through whose lands it passed, but it was held to be 
a public road, which the defendant had no right to obstruct. 

3. Prince v. Welbourn. 1 Rich. 58. This was an action for ob- 
structing a private way. The evidence was that the plaintiff, and 
those under whom he claimed, had used the road for thirty years ; 
but the road was common to all the surrounding country. Every 
one used it, and had the same right as the plaintifi". It was held 


that such a use might establish the road as a public road, but not as 
a private way. 

4. In the case of the State v. Go-egg, it is intimated that the pub 
lie character of a road depends on whether it is under the control of 
the Commissioners of roads. This is certainly a good test, and iu 
general would be conclusive that the road was public. But in the 
more recent decisions, this has not been regarded as conclusive evi- 
dence that the road was not public. State v. Sartor, State v. Mo- 
hhy, ante. 

5. Glover v. Simons. 4 McC. 67. The Commissioners of Roads 
have authority over those roads in which there is a right in two or 
more persons, and which are called private paths ; as contra-dis 
tinguished from public highways. 

6. These authorities clearly establish that the private paths men - Private paths 
tioned in the acts of 1721 and 17S8 are not roads used by single are public 
individuals, but are a species of public road. They are public i^ 

their use and origin, but are called private because laid out for and 
kept in repair by a particular neighborhood or by those who use 
them. In relation to them, the Commissioners have the same pow- 
er as to laying out, as in relation to other public roads. Whether 
the Commissioners have the power to designate who shall work on 
these private paths — whether a Commissioner would be liable to in- 
dictment for not keeping them in repair, or whether they are to be 
repaired by the voluntary contributions of labour by those who use 
them, are questions not decided. 

7. Commissioners of Gcorgetoton v. Taylor. 2 Bay, 282. To Use makes a 
constitute a street or a road it is necessary it should be laid oif and highway, 
used as such, for it is the use that makes it a highway, but non-user '^^''l.^^i^]^ 
for twenty years or more will forfeit the right to a highway. non-user.^ 

State V. Sartor. 2 Strob. 61. From the use of a road for twenty 20 years use 
years, it will be presumed it was laid out originally by competent will authorize 
authority. presumption. 

8. State \. Carver. Columbia, May T. 1850. One Poole had laid One may dedi- 
out a piece of his land adjoining the village of Spartanburg, into cate his land to 
lots, with streets, one of which the defendant obstructed. There P"'^^^*^"^^'^"';^ 
was no proof of use by the public, or that the Town Council or the ^ use4 u^be^*^ 
Commissioners had ever accepted the same. It was held that an comes a high- 
individual may dedicate his land to the public use, as roads or streets, way or street, 
but to give them the character of public highways there must be use 

by the public, or some clear act of acceptance by those who are 
bound to repair. Otherwise, an individual, by his act of dedication, 
might impose a burden on the public without their consent. 

9. It would seem from these views, that roads are of three kinds : Public roads 

1. Highways, which are laid out for the use of the public generally, of 3 kinds. 

2. Private paths, laid out for, used, and kept in repair by particu- 
lar persons. 3. Private ways, or individual roads. The two first Remedy for in- 
are public, and the last entirely private. For an obstruction to a J"''y '° ^^*^"- 
public road, the remedy is by indictment. . For a private way by 

civil action. 


How Roads are Established, and of the powers of 
THE Commissioners of Roads. 

. Sec. 5. In the early times of the Colony all roads were 

roadsTaid out c'sated by Act of the Legislature. I do not find any clear 
by the Legis- authority given to the Commissioners anterior to the acts of 
lature. 1735 and the Act of 1788. The Act of 1721 gave the pow- 
er to alter, but not to lay out an original road. By the 5th 
Po^^^J^g^^n^ed section of the act of 1825 (9 Stat. 559) the Commissioners of 
sionersToopen ^o^^s "are authorized and required to lay out, make and 
and repair keep in repair", all such roads, bridges, causeways, and water 
roads. courses, as have been, or shall hereafter be established by 
law, or as they shall judge necessary in their several parish- 
Mustgive r.o-gg j^j^(j districts; provided, however, that no Boai'd of Com- 

ticG 01 new • 

road 3 months, iiiissionei's of Roads shall hereafter have power to open any 

new road until they shall have given three months previous 

Cannot open notice, by advertisement, in the settlement througli which the 

new road if intended road is to be opened ; nor shall any new road be 

objected to. opened through the lands of any person who shall signify to 

the said Board of Commissioners any opposition, unless by 

permission of the Legislature ; nor shall the Legislature here- 

How the Leg- after grant any new road, unless upon the representation of 

grant roads ^''® Board of Commissioners of the district, parish, or division, 

and on what where the road is to be laid out, certifying the propriety and 

notice. utility thereof, and also that three months notice had been 

given to the persons opposed thereto, to enable them to make 

counter representations to the same, if they see fit to do so."- 

NoTE 1. The powers granted by this Act are the same as by the 
former Act of 1785 (9 Stat. 293) and the Act of 1788, except that 
the words used are more general. The words of the Act of 1788 
(9 Stat. 309, sec. 5) are : " lay out, make, and keep in repair, all such 
high roads, private 2^aths, bridges, cavseivays, and tvater courses as 
have been established by law, or they shall judge necessary." The 
proviso is copied from the Act of 1817, 9 Stat. 438. 

Commission- '^ Maddox \ . Ware. 2 Bailey, 314. The Commissioners, under 
CVS may make the Act of 1 825, have power to make slight alterations in the direc- 
shght altera- tion of an old road, for the bona fide purpose of avoiding obstacles, 
tions without a^Q(j remedyino' defects, without the consent of the owner of the land 
consent or no- . . .1 , • • i i .1 a i. 

tice. °'' g^'^i'^g *"6 notice requii-ed by the Act. 

Under the authority to make bridges, the Commissioners are not 

1 ^^^ H 1 '^^^^'^ ^'^ make a bridge at the precise spot where the road crosses 

tor die roads ^^^ water course, but may build or rebuild a bridge at the nearest 

to them. suitable point, and may alter the road so as to afford access to the 

bridge by the nearest and best way. 

May make al- 3. Commissioner s of Roads y. Murray. 1 Rich. 335. The Com" 

terations with- migsioners have a right to make alterations in a road without eivinff 
out notice. „„.• „ & 6 


must lie by"ihe Where a single Commissioner undertook to make an alteration in 


a road, and summoned the hands to do it, it was held he had no right, Board, and not 
and they were not bound to obey him, because a single Commission- '^^^'"Sle Com- 
er has no such power — it belongs to the Board. missioner. 

4. State V. Commissioners of Roads. 4 McC. 5. The Commis- May make 
sioners have power to alter or change a road for a short distance, ^''g^' altera- 
particularly when the alteration is made at the request of him over '°"^" 
whose land the road runs, and where it is productive of no great in _,, 
convenience to the public. ^'^^ restramts 

\ on power of 

5. Capers V. Wilson. 3 McC. 170. The prohibition which re-Com'sionersto 
strains the opening of roads through the land of any person, with- "^P^" ""^^^j 
out his consent, extends to every description of roads. ^TaU r^ads 

6. When the Commissioners have opened a new road and shut up when Com'- 
the old one, they have not the power to discontinue the new way, sioners have 
and re-open the old one. Idem. But I suppose they may, under "■'^<^® 'VY^^ 
the act of 1830, (9 Stat. 587) discontinue the new road, and re-open cTnUmred the" 
the old one as a new road, by pursuing the act of 1 825. old, they can- 

7. Co7nmissioners \. Murray. 1 Rich. 335. The provisions of not abandon 
the Act of 1825 requiring three months notice to be given before '^ggf°5^^,jgU^^g' 
opening a new road., cannot be dispensed with by obtaining the con- new. 
Bent of the owner of the land, through which the road is to pass. 

But when the road has been opened, the presumption is that all legal 
prerequisites have been complied with ; but this presumption may be 
rebutted by proof 

8. The fact that notice was given may be proved by any compe- Notice, how 
tent evidence. It is not required to be proved by the record of the proved, 
order, or a copy of the notice. [Idem.) 

Sec. 6. All public roads must be laid out by some compe- 
tent authority ; but there are many roads now existing, and 
especially those which come under the denomination of pri- 
vate paths, which cannot be traced in their origin to any act 
of the Legislature, or any order of the County Court (which 
during its existence had the control and supervision of the Public road 
roads) or to any authority derived from the Commissioners maybeestab- 

of Roads. In such cases we must, as in other matters of an- ^'^^^'^'^^^^ P"^®' 
, , ' 1 , • 1 sumptive use. 

tiquity, resort to legal presumptions to supply the evidence ; 

and accordingly in the case of the State v. Sartor, and in 
other cases, it has been decided that where a road has been 
used and treated as a public road, and worked on as such, for 
twenty years and more, no other evidence of its origin need 
be given. The law will presume, from such use and acquies- 
cence, that it had its origin in soiTie legal authority. — The 
/State V. Sartor, ante. 

Sec. 7. From the infancy of our colonial history the pub- Commission- 
lie roads have been under the control of certain persons styled ""^ formerly 
Commissioners of Roads, except in those parts of the State the°Le^'^isla^ 
■where County Courts existed for a time. The earliest oei-^. mre. » 
eral law on the subject is the Act of 1721 (9 Stat. 49.) By 
that act Commissioners were appointed for such parts of the 


State as were then settled ; and as the settlements extended 
new road districts were laid out, and Commissioners appoint- 
Electedby ed. The mode of appointment Varied. In general, they were 
people, appointed by special Acts of the Legislature; but from 1783 
to 1788 they were elected by the Freeholders. But by the 
J, g , Act of 1788 (9 Stat. 308) the power to fill up vacancies was 
to fin vacan- given to a majority, of each Board. From that time, with oc- 
cies. casional alterations in special cases, by Act of the Legislature, 
this continued to be the law until the year 1S43. By the 
14th clause of the Road Act of that year, p. 269, it was en- 
By Act 1843, acted "that the Commissioners of Roads and Cuts of the 
appointed by several parishes and districts, shall hereafter be appointed by 
'^^'"^[on""" jo^"'^ resolution of both branches of the Legislature, in the 
same manner as Commissioners of Free Schools now are. 
The term of office of the said Commissioners of Roads shall 
be the same as now required by law. They shall be liable 
to perform the same duties, and be subject to the same penal- 
ties, as are now prescribed by law ; and that in case of the 
death of any Commissioner, or removal from the parish or 
district, or refusal to serve, the several and respective Boards 
of Commissioners shall appoint a Commissioner to fill such 
vacancy, who shall serve the unexpired term. The Commis- 
sioners now in office to continue in office until the first day of 
January, 1845; provided, that nothing herein contained shall 
be considered as applying to the Commissioners of Cross 
Roads of Charleston Neck." 

Note 1. Before the passage of this act, the law was that every 
Commissioner, when appointed, was obliged to serve for three years, 
but the real tenure of the office was during pleasure. I presume, 
■ however, that the Legislature in saying the term of office shall be 
the same as heretofore, had reference to the three years for which 
the service was compulsory, and that the meaning was that each 
Commissioner, u hen appointed, should serve for that term, at the 
expiration of which, new appointments should be made. And such, 
I understand, has been the practice under the act. The first appoint- 
ment was made in 1844, which has been continued every third year. 

If aCommis- By the Act of 1835, (9 Stat. 604) whenever any Commis- 
senuliVchak- ^^°"^'' °^ ^^^^ Roads in any of the Boards of this State shall 
man to ap- be absent from his district or parish, so that the public roads 
pointan over- in his division are neglected or badly repaired, it shall be the 
^^^roads.'"^ duty of the Chairman of the Board, where such neglect oc- 
curs, to appoint some fit and proper person as overseer of said 
division, and to cause the roads of such absent person to be 
put in propel repair. 

Sec. 8. The powers, duties and liabilities of the Commis- 
sioners will be found in general to be embraced in the Act of 
1825, which, as its title imports, was intended to embrace all 


the law on the subject into one Act. The power to lay out, and 
the duty to repair the roads, bridges, causeways and water 
courses, given and required by the 5th section of that Act, 
has been already stated. The right of the Legislature to lay Legislature 
out roads through the lands of individuals, or to delegate that ^^ power to 
power to the Commissioners of roads or streets, has been re- aiXodVle^ate 
cognized by a great many adjudications. AH agree that pri- the power to 
vate property may be taken for public use. This is a portion Commission- 
of the sovereign power, called the eminent domain, which is ^'^ ° ^^ 
essential to every government. By the Constitution of the 
United States, it is provided that just compensation in such 
cases shall be made, and that is the law of many of the 
States. But except in one or two instances, I do not recollect 
that the Legislature has ever made compensation for land 
taken for public roads, or timber or earth used for repairing 
them. The instances which have occurred are a recognition 
of the duty of the Legislature to make compensation in cer- Compensa- 
tain, cases, and there is certainly no good reason why com- tion. 
pensation should not be made where valuable land or timber 
is appropriated to the public use, or the owner subjected to 
great inconvenience and expense in keeping up lane-fences 
in consequence of the opening of new roads through his 
land. In early times the roads were mostly laid out through 
the public domain, or when the land was of little value, and 
that was probably the reason why compensation was not 
made. But lands have now become valuable, and the same 
reason no longer exists for withholding compensation. Be 
this as it may, tliere is no doubt that according to all our cases 
the public right to lay out roads through any man's land, 
without his consent, is clearly established. The only differ- 
ence of opinion is, whether the public are not bound to make 
compensation. If the right exists, there is no legal process 
by which it can be enforced. It rests, and must rest, in tlie 
justice of the Legislature, to grantor withhold it. See Lind- 
say V. Co?nniissio7iers, 2 Bay. 38; Stark v. McGoiven, I N. 
&- McC. 387 ; State v. Dawson, Riley's Cases, 103 ; Patrick 
V. Commissioners, 4 McC. 541. 

Sec. 9. Each Board of Commissioners of Roads shall meet Commission- 
to form a Board for their respective parishes, districts and di- erstomeet 
visions, at least twice in each year, on snchdays and at sucli twice a year, 
places as they have heretofore been directed by law to meet, •^^^'^^j^f. '^^®'' 
and that a majority of each Board shall be necessary to con- Majorkyto 
stitute a legal meeting. (2 sec. Act 1825, 9 Stat. 558.) form quorum. 

Note 1. By tbe oOth section of the same Act, twelve members of „ 
the Board of Commissioners, for St. Paul's Parish, shall form a ^^ g|_ paui'g. 
quorum to transact business. 9 Stat. 5G6. And by the 20th section g^ John's 
of the Act of 1845, p. 349, twelve membeis of the general Board of Colleton. 
St. John's Colleton, shall form a quorum. 


Eachboard to Sec. 10. Each Board, or a majority of such Board, shall 
appoint time [^j^yg power to chanse the tune and place of their meeiinsr, to 
and place 01 , K ,,° w-.i •• ,• t->i 

meeting, siich time and place as any Board, or a majority ol any Board, 

may appoint. Act 1825, 9 Stat. 558. 

Note 1. Prior to thi^ Act tlie times and places of mpeting were 
regulated by various Acts of the Legislature. All of which are 
omitted, as each Board may now appoint its own time and place. 

Fine on Com- Sec. 11. Whenever the Commissioners of the Roads, in any 
missionerfor parish or district, shall fail to meet and form a Board as by 
non-attend- j^^^^ directed, the several persons being Commissioners, who 
shall fail to attend, for the purpose of forming snch board, 
slnll be fined twelve dollars; and if any person being a 
Commissioner of the Roads, shall neglect to appear at any 
time when the Board to which lie belongs is required to meet, 
and such Board shall have formed a meeting, such absent 
Commissioner shall be fined in the sum of six dollars. Pro- 
vided, nevertheless, that nothing in this Act contained shall 
be construed to impose any fine on any person who may have 
a reasonable excuse or justification, to be approved of by the 
Board of Commissioners. 4 sec. of Act 1S25, 9 Stat. 558. 

Sec. 12. If any person who is now acting as a Commis- 
sioner of the Roads, or shall hereafter be elected or appoint- 
_,. . . ed a Commissioner of the Roads, shall refuse or fail to act, 

x* in6 lor rciu- • 

sal to act, and without a Sufficient excuse, after having received notice of 

neglect of such election or appointment, or shall neglect his duty after 

'^"'y- acting, he shall forfeit and pay, for the use of the Roads, the 

sum of fifty dollars, to be recovered by indictment at law. 8 

sec. Act 1825, 9 Stat. 559. 

Note 1. State x. ChappeH, 2 H'lW. 39 \. Every road or bridge is 
the subject of a particular duty — a neglect of which subjects the 
Commissioner to a particular fine, and however long a road or bridge 
may be out of repair, it is but one offence. But if after indictment, 
the road or bridge is still neglected, the Commissioner may be in- 
dicted again. Where no particular penalty is provided, it is safest 
to conform to the punishment imposed by the 8th section of the Act 
of 1825. 

Sec. 13. If the Commissioners of the Roads, for any dis- 
trict, parish or division, shall not form a Board to transact 
Board dissolv- business in any one year, the said Board shall be considered 
^V^ ^^'^■"^^ as dissolved, and each member of the said Board, who shall 
ygjjr fail to attend the meeting of the said Board, for the space of 
one year, when the Board becomes dissolved as aforesaid, 
Penalty on shall be considered as refusing to act, and be subject to the 
Com'sioners. penalty imposed by the 8th section of this Act, without he 
has a sufficient excuse for such absence. And in case of the 


dissolution of any Board, then fit and proper persons shall New board to 
be nominated and appointed by the members of the Legisla- ^^^ ''^ppomted 
ture, for the time being, in such district or parish, as the case beis of Legia- 
may be, which persons, when appointed, shall act as Com- lature. 
missioners of the Roads, and shall have the same power un- 
til the next meeting of the Legislature, and shall be subject 
to the same penalties, as are prescribed by the 8th section of 
this Act, in case he or they shall refuse to perform all the 
duties required of Commissioners of high Roads. 28 Sec. 
Act 1825, 9 Stat. 566. 

Sec. 14. All the male inhabitants of this State from 16 to 
50 years of age, are declared liable to work on the public -who liable to 
roads, bridges and causeways. That the Commissioners of work on roads, 
the roads in the several parishes and districts in this State 
shall have power to direct and prescribe how far and on what 
roads the persons and slaves within their respective districts 
shall be compelled to work. Provided, nevertheless, that no 
person, or his or her or their slaves, shall be compelled to work 
on any road, unless some part of the said road shall be or Within what 
pass within ten miles from his, her, or their place of residence, ^^^"j!}^ '^ 
or within ten miles of the plantation whereon such slaves are 
employed the greater part of the year. 9 sec. Act 1825, 9 
Stat. 559. 

Note 1. The limitation as to distance in this proviso was altered 
by the Act of 1827 (9 Stat. 576) so as to exempt all persons from 
working on any part of a road at a greater distance than ten miles. 
This was repealed by the Sth sec. of the Act of 1828, (9 Stat. 581.) 
but by the 20th section of the Road Act of 1841, the Act of 1827 
was re-enacted, and the 8th section of the Act of 1828 was repealed. 
By the 24th section of the Road Act of 1843, p. 270, the same pro- 
viso is made as by the Act of 1827, with the addition that where 
there is no public road within ten miles, the public hands may be 
summoned to work beyond ten miles, or to commute at the rate of 
fifty cents per day. 

By the 20th sec. of the Act of 1846, p. 371, it is enacted 
that the 20th sec. of the Act of 1841 be amended to read as 
follows : " that from and after the passage of this Act, no per- 
son or persons, or his or her or their slave or slaves, shall be 
compelled to work on any part of any road at a greater dis- 
tance than ten miles from his, her, or their place of residence, 
or the plantation whereon such slave or slaves usually reside ^°^^'^'^"^^ 
or are employed the greater part of the year; and that the ted. 
said distance be measured by a dnect line running from the 
residence of such person or persons, or the plantation where- 
on such slave or slaves usually reside or are employed, to any , 
part of the road, which such person or persons, slave or slaves, 
may be called on to work. 


Note 1. In the case of the Com7)iissioncrs of Rnads v. King, 
tried before me at Beaufort, the road in a straight line was seven 
miles from the plantation, but the straight line was through an im- 
passable morass. The nearest that could be travelled was fourteen 
miles. I held the defendant was liable. The rule prescribed by 
the Act was an arbitrary one, and must be literally construed. 

2. If no part of any road be within ten miles, measured in a 
straight line, then I presume such a contingency is provided for by 
the Act of 1843. The persons thus situated may be called on to 
work beyond that distance, or to commute at the rate of fifty cents 
per day. 

Who exem t ^^^- ^^- ^^ ^^® ^^^'^ ^^^- ^^ ^^® ^^^ °^ ^^^^' (^ ^^^^' ^^^^ 
from road the following persoiis, and no others, shall be exempted from 

duty. all liability to work on roads and bridges, viz : All Ministers 
of the Gospel, Millers and Ferrymen. By the Act of 1829, 6 
Stat. 381, the Superintendent of Public Works, Toll Collec- 
tors, and Toll Keepers on Canals, are exempt ifrom working 
on the roads. 

Note. 1. By the 14th clause of the Act of 1824 (9 Stat.) shep- 
herds were exempt from militia, patrol, and road duty ; and by a 
decision of the Court, in the case of Harrington v. the Co?Jivds- 
sioners of Roads, 2 McC. 400, the Clerk of the Court was held to 
be exempt ; but these, and all other exemptions, prior to the Act of 
1825, must be considered as taken away by the words of the Act, 
" the following persons and no others." See Cheves, 210. 
^*L^^°'^\v°[r' 2. Jenkins \. Co7nmissioners. Cheves R. 109. Persons required 
Cut not ex- by law to work on Wall's Cut are not exempt from ordinary road 
empt. duty. 
- Or on Rail Luten V. Commissioners. Cheves, 95, Persons working on the 
Road. Rail Road are not exempt. 
Nor Post 3. Campbell v. Commi&sioncrs of Roads. Cheves, 210. Post 
Masters. Masters are not exempt. 
Nor those who ^- Commissioners Y. Murray. 1 Rich. 335. It is no exemption 
work on Cuts, from road duty that a man works on a Cut, unless exempted by law 
from working on one because he works on the other. 

Commission- Sec. 16. The several Boards of Commissioners of Roads 
to divide the throughout this State, shall, at the first meeting after the 
Xmselve"^ P^^ssing of this Act (where it has not already been done) di- 
vide their respective districts and parishes into as many road 
divisions as there may be Commissioners, and assign to each 
Commissioner one division, over which he shall have the su- 
perintendence, and each Commissioner shall be responsible for 
^bkf "roads ^'^® '°^^ "^ ^^^® division which shall be assigned to him. 
in his division. And if, at any time, the road shall be in such order as may 
require the interference of the judiciary of the State, the said 
Commissioner shall be liable to be proceeded against in the 
same manner and subject to the same penalty as the several 


Boards are now liable for similar delinquences ; (1) and that 

each Board of Commissioners of Roads are hereby author- Board to de- 

ized to declare what inhabitants are liable to work on any clarewhoto 

road or part of a road, subject, nevertheless, to the restriction ^^°' road!^*^ 

of time and place as aforesaid ; and that each Commissioner, 

in his respective division, is hereby authorized to call on all ^^'^^^ Com'- 

the inhabitants within the same, to make a return (on oath, if fo°"re'turn of 

required) of all the male slaves belonging to them, or under hands liable to 

their management or direction, from IB to 50 years of age, "^o^k. 

and who reside in such parish or district for the most part of 

the year, to such person, at such place, and within such time, 

as he shall appoint ; and the said Commissioner is hereby 

authorized to administer this oath. I, A. B. do swear or affirm, 

that the return made by me of the number of male slaves from Oath to return 

16 to 50 years of age, owned by me, or under my management 

or direction, in this road division, belonging to C. D. is true, to 

the best of my knowledge. 11 sec. Act 1825, 9 Stat. 560. 

Note 1. Keckley ads. Commissioners. 4 McC. 463. Although 
the Act of 1825 requires the Commissiouers to parcel out the road, 
yet where this had not been done, and a person required to make a 
return to the whole board, he was held to be bound to do so. 

A Commissioner is not separately liable to be indicted for not re- Commissioner 
pairing his division of a public road, which the Commissioners had not liable if 
discontinued, but all the members of the Board may be indicted road discon- 
jointly, because the discontinuance was the act of the whole Board, tinued by 
and they had no such authority. This was before the Act of 1830, ^^"^ ' 

9 Stat. 587, which gave the Commissioners the power to discontinue. 
See post. sec. 32. State v. Broyles, 1 Bail 311. ^ 

2. State \. Chaj)2)eU.'^^^^l\\\'i'^\. Where the repair of a bridge ^IP^ 
requires greater labor than is at the disposal of one Commissioner, 

or where a bridge requires to be rebuilt, for which the ordinary labor , 

under the control of the Commissioner is insufficient, the Commis- 
sioner of that division is not alone indictable, but the whole board. 
Quere. In such case would not the Commissioner be liable unless 
he had given notice to the whole Board that the bridge required re- 
pair or rebuilding, that they might make an assessment or appro- 
priation for that purpose, and would the Board be liable without 
such notice ? 

3. The only mode of punishing a Commissioner for neglect of Commissioner 
duty is by indictment; he is not liable to a private person, by civil punishable by 
action, for an injury sustained by reason of a bridge or road being indictment 
out of repair. See Young y. Commissioners of Roads, 2 N. & only, not lia- 
McC. 537, and McKenzie v. CJuroin, 1 McMul. 222. acaon."" 

4. Keckley ads. Cojnmissioners. 4 McC. 463. If a parish line run 
through a plantation, leaving the dwelling and some negro houses 
in one parish, and the rest in another parish, the slaves are bound 
to do road duty in the parish in which the dwelling house is. 

5. Luten v. Commissioners of Roads. Cheves, 95. Where 
slaves, hired by the month, had been employed the greater part of 


the year, working on the Rail Road, they are liable to road duty, 
where they are so employed, and the hirer is accountable to the 
Commissioner. The road duty of hired slaves is due where they are 
employed the greater part of the year. 

Fordefault of Sec. 17. If any inhabitant shall neglect or refuse to make 
return, party such return as aforesaid, (sec. 16) the Commissioners, or a 

to be assessed. j-j^,,jo,.ity of them, for said district, parish or division, in which 
such default shall be made, are hereby authorized to make 
an assessment on such defaulter, accorduig to the best 
information they shall receive, of four dollars, for every such 
male slave so refused or neglected to be returned. 

Note 1. Co?7iJ}vssioncrs of Roads v. Morris. The fine must be 

Fine barred sued for within the period fixed by the Statute of Limitations. — 

^tions '^''' '^^^^ Statute begins to run from the time of the default. 2 Rich. 

These principles, I presume, will apply in all cases where fines 
are sought to be recovered for any default in road duty. 

Quere. Is the period of limitation four years or six months ? I 
suppose the latter. 

Commissioner Sec. 18. Each Commissioner, in his respective road divi- 
to summon sion, is hereby authorized, whenever he shall think it expedi- 
handsby two gj-jj j^,-,^ necessary, to summon, by two day's previous notice, (1) 
^^^ ' all the male inhabitants within his division, liable to load duty, 
to be and appear at such time and place as the Board of 
Commissioners may have assigned for such male inhabitants 
to work on, except on the following emergencies, viz : — 
Exceftbn. , where a bridge may require to be r^aired, a tree removed, 
^* and other obstructions in the road recpTiYing immediate remo- 
val, in any of which cases, one day's notice only shall be 
necessary ; and the work done at one day's notice shall be 
credited to the hands that work at one days notice, when the 
hands are called out generally to work on the road. And if 
any person or persons shall neglect to go, or to send their 
male slaves, when thereunto summoned by the Commission* 

Penalty for gj. aforesaid, or by any person by the Commissioner to be 
not worKin*' ^ j j i j ^ 

°' appointed, every such person shall forfeit and pay, for the 

use of the roads, the sum of two dollars for himself, and one 
dollar per day for every male slave so neglected or refused 
to be sent. — Provided, that it shall be lawful for each Corn- 
May exempt missiouer, in his division, to exempt the domestic slaves era- 

domestic ser- , , ' . . j i . u 

vants. ployed as waitnig men and house servants by any persons. 

on such persons substituting, in the room of every such male 

slave so exempted, one able-l3odied female slave, and making 

oath, if required, before the Commissioner, that they are not 

field slaves or other labourers, whom they desire to screen 

from the operation of this law. 13 sec. Act 1825, 9 iSiat. 

560, 561. 


Note. 1. Keckley v. Co7nmissioners of Roads. The notice re- Notice must 
quired by the Act of 1825, must pi-escribe the time and phice, and ^^ personal, 
the service must be personal. Advertising in the newspaper will 
not do. 

Quere. Must it be in writing, or will verbal notice suffice ? 

2. Commissioners v. Murray^ 1 Rich. 335. The defendant was Notice to ap- 
warned to work on the road, and at the same time was notified, in pear before 
case of default, to appear before the Board at a certain time and -board, 
place to make his excuse. This was held to be sufficient notice. 

S^ffhe 7th sec. of the Act of 1788, from which this clause seems jjands liable 
to hWe been copied, contains a proviso, that " no white person or for duty, 12 
slave shall be liable to work on any road, path, bridge or causeway, days work, 
for more than twelve days in one year," which, I presume, is still the 
law. 9 Stat. 310. It was, probably, omitted in the Act of 1825, 
as that Act professes, by its letter, to include only such Acts as re- 
lated to the powers and duties of the Commissioners. 

Sec. 19. Each Commissioner of Roads, in his respective Each Com- 
road division, shall be authorized to appoint warners, whose missionerto 
duty it shall be to warn the inhabitants when they are to appoint wam- 
work on the roads, (l) and to summon any freeman who ^'^^' 
makes default in road duly, to summon the owner or person Their duty, 
who may have the management of any slave or slaves who 
may make default in road duty, by two days notice, to ap- 
pear at the next meeting of the Commissioners of Roads, in 
the district, parish, or division, in which he may be appoint- 
ed a Warner. And if any peison shall refuse to act as war- Pe^ait 
ner, or neglect his duty after acting, he shall forfeit and pay 
a sum not exceeding twelve dollas ; provided no person shall 
be compelled to act as warner more than one year in three. 
And it shall be the duty of the warner to attend the meeting To attend 
of the Board uf Commissioners of the district, parish, or di- "^toard ° 
vision, in which he may be appointed, to prove that any de- 
faulter was warned to work or to appear and make his ex- 
cuse for any default. (1.) And each Commissioner of the Overseers to 
Road is authorized to apooint such overseers in his division, ^^**PP°'"'^'^" 
on such roads or parts of roads, whilst the inhabitants are 
working on the same, as to him shall seem necessary; and ^j^^ °^"p^"^._ 
the overseer or overseers so appointed are hereby empowered seer, 
moderately to correct all such slave or slaves as shall refuse or 
be negligent of tlieir work. And if any white person liable To report 
to road duty shall fail to be and appear at the time and white persons 
place to which he shall be warned to work, or shall refuse or ^g,]^ j^'^'^.g^^g'^J" 
neglect to work, or to do his duly when in place, (2) the said to work. 
overseer shall return the names of such white persons to the 
next meeting of the Board of Commissioners of the Roads, To warn de- 
in the district, parish, or division, in which he acts as over- fruiters, or to 
seer ; and the overseer is also required either to warn the de-^ames to war- 
faulters himself, or to furnish the warner with the name or ner. 
names of all defaulters, in order that they may be warned to 


appear and make (heir excuse or excuses for their defaiih, he- 

^^dfou^Am^^^''® ^^^^ "*^^^ Board of Commissioners of Roads for the dis- 

or refuse to trict, parish, or division, in which such default was made ; 

work. and the said Board are authorized to fine the said persor^s 

two dollars for the first default, and ten dollars if repeated. 

Penalty on ^Yi(\ [[ ^ny person shall refuse to act as overseer, or shall ne- 

notseTviiT^^orS^®^^ ^^^^ duty as an overseer, not giving a sufficient reason 

neglectt for sucli refusal or neglect, every such person shall forfeit and 

pay a sum not exceeding twelve dollars ; provided that no 

No person to person shall be compelled to serve as an overseer mor^han 

serve as over- qj^q ygar \n three, except in the Parishes of St. Johns iferk- 

TyTaThf 3 " ^^Y' St. James Santee, St. Thomas and St. Dennis, St. Ste- 

exreptincer- pheus. St. Pauls and St. Andrews. 14th sec. Act 1825. 9 

tain parishes, gtat. 561. 

Note. 1. This clause of the Act does not give to each Commis- 
sioner the power to appoint waruers to summon the inhabitants to 
make return of hands liable to road duty. This defect was sup- 
plied by the Act of 1845. See sec. 41, post. 

2. By the 1st section of the Act of 1741, if any white person 
' ^'ken'ness'^""' ^^^^^^ ^^^ drunk during the time they are working on the road, 
he shall forfeit the sum of five pounds, current money. &c. This is 
omitted in the General E-oad Laws of 1785, 178S, and 1825. 

Sec. 20. Each Commissioner is authorized to prescribe 
Commissioner ^vhat tool or tools each hand shall furnish himself with, and 
^° tools'^ ^ ^^ ^'^y freeman liable to work on anyroad, having been regu- 
larly warned, shall fail so to be equipped, he shall forfeit and 
Penalty for pay the sum of fifty cents; and if the owner or owners of 
"^\oois^"^^ any slaves, after due notice for that purpose, shall fail to fur- 
nish them with such tools as may be required, he or she shall 
in like manner forfeit and pay for each tool which they may 
so fail to furnish, the sum of fifty cents. Provided, tbat in 
cases where it shall be shewn to the satisfaction of such Com- 
missioner, that the person complained of was not in posses- 
Except where siou of the tool or tools required, no forfeiture shall be exacted, 
no rucTiToolT '^"'' ^"y other suitable tool or tools shall be received in lieu 
'thereof.— 15 sec. Act 1825, 9 Stat. 562. 

Comm'rs.may Sec. 21. The Commissioners of the Roads, or either of 

use materials them, according to their respective divisions, shall have full 

iiiencT Roads power to cut down and make use of any timber, earth, wood 

or stone, in or near the roads, bridges or causeways, for the 

Penalty for purpose of making or repairing the same, as to them shall seem 

opposing necessary ; (1) and if any person or persons, by themselves, 

Comnu s. gjaves or servants, shall, by ar.y ways or means, hinder, forbid 

or oppose the said Commissioners of Roads, or either of them, 

obstructing their servants or workmen, from cutting down and making 

Roads. "^ use of any timber, wood, stone or earth, in or near the said 

roadsj bridges or causeways, for the purpose of making or 


repairing the same, or in any manner stop up or obstruct the 

passages on the said roads, bridges or causeways, by gates, Or forbidding 

ditches, fences, or any other obstruction, (except where they use of them b^y 

are authorized by law to do so,) or shall hinder, forbid or travellers. 

threaten any traveller from travelling any public road, every 

person, for every such offence, shall forfeit the sum of fifty 

dollars, to be recovered by indictment at law.— IG sec. Act 

1825, 9 Stat. 562. 

This clause is restramed and restricted by the 23d sec. of 
the Road Act of 1826, by which it is enacted that the 16 sec. t?'S Va°de 
of the Act of 1825 shall not be construed to extend to au-and ornamen- 
thorize the said Commissioners to cut down any timber or ^^al trees, nor 
trees reserved by the owner in clearing his land, or planted eSthor'stonJ 
for the purpose of shade and ornament, either in the fields, from culd- 
around the spring or about the dwelling house and appurte- ^^^'"^ ''^"ds, 
nances, nor the cutting of any rail timber, when other timber, "^'I'T' *'°"' 

1 I •■*'-'**»i.**»-'%>«j sent 01 owii6r 

adequate to the purpose, may be procured at or near the same 
place; or to take stone or earth from within the grounds 
of any person enclosed for cultivation, without the consent 
of the owner of the same.— 9 Stat. 569, 570. 

Note 1. The right of the Legislature to take the land as well as 
the timber of any person to make and repair the public roads, has 
already been considered. — Ante, sec. 8. 

2. Eaves v. Terr?/, 4 McC, 1 25. The Commissioners of Roads 
are authorized, under the Act of 1788, (the Act of 1721 and the 
Act of 1825 give the same power.) to cut down and use such native 
forest trees as are unappropriated to any particular use and nearest 
to the highwasy, for the jjurpose of making and repairing them, not- 
withstanding the trees are enclosed in a fence : Trees for ornament 
and use have always been exempt. 

This case was decided on the law as it stood before the Act of 

3. Daioson's case, before referred to, was decided since the Act of 

1826. The Commissioner set the hands to sawing boards of pine 
timber, to repair the bridges on the road leading through the defen- 
dant's land. The defendant drove them away. The trees were 150 
yards from the road, and there was plenty of oak between these trees 
and the road, but the Commissioner refused to use them, as unsuit- 
able. The Circuit Judge charg-ed the jury, that under the Act of 
1825, the Commissioner had a right to use any timber adjacent to 
the road, for the purpose of repairing it — that the Act of 1826, as 
applied to this case, restricted this general power as to rail timloer 
only. _ The questions submitted to the jury were, 1 : Was the tim- 
ber rail timber? 2, If so, could other and adequate timber be pro- 
cured at or near the road ? The jury found the defendant guilty, 
and a new trial was refused. 

In that case, the power of the Legislature to lay out roads and to 
use timber and other materials to repair them is discussed.— Riley's 
Law Cases, 103. 


4. State V. Huffman^ 2 Rich. 617. The power to use timber, earth 
&c., is given by the clause above quoted to the Commissioner^ but 
where earth and gravel had been taken from the same place before, 
for the repair of the road, it was held that it might be presumed 
that the place had been set apart by the Commissioner for that pur- 
pose, and therefore that the overseer might use it for the repair of 
the road, without the presence or express direction of the Commis- 
sioner, and that an indictment would lie for obstructing the overseer 
in the use of them, under the 16 sec. of the Act of 1825. 

Sec. 22. If any person or persons shall at any time stop 
Fine for stop- 11 P, alter, or do any maner of damage by stopping of water 
ping up, alter- or any otherwise, to any of the highroads, private paths, 
ing or injuring |^j.j(-^ggg qj. ^y^ter courses, which have been or shall be laid 
out by the Commissioners, every such person so offending 
shall be summoned and required by the Commissioner of 
that part or precinct where the default was committed, forth- 
with, to amend, repair and clear the same, and in case of 
their refusal or neglect, shall be fined in any sum not excee- 
ding five pounds, for each time the commissioner shall give 
such persons notice to amend, repair and clear the same, al- 
lowing three days between each notice, and on nonpayment 
to issue an immediate warrant of distress against the goods 
and chattels of the said defaulter, and after ten days public 
notice, to sell the same, for payment of the fine aforesaid, 
and the charges accruing thereon. Returning the overplus, 
if any, to the said defaulter. (I) sec. 13 of Act 1788. 9 Stat. 
311, 312. 

Note 1. This is omitted in the Act of 1825, but as that Act only 
repeals so much of former Acts as are inconsistent, I apprehend it 
is not repealed. The mode of enforcing payment of the fine by 
warrant of distress, is inconsistent with the subsequent legislation, 
which requires that the Commissioners shall bring an action to re- 
cover all fines exceeding twenty dollars. This, I presume, must 
now be done, but in all other respects the Act is of force. 

Of Bridges, and Assessments to Build them. 

P : ,. »Sec. 23. The Commissioners of Roads, within their respec- 

ers to contr ict tive parishes and districts, shall have full power, and are here- 
to build bridg- by authorized, to agree with any person or persons to under- 
^^- take the building of any bridge or bridges they may think 
May levy as- uecessary, and to levy, as hereinafter directed, such sum or 
sessments. sums of money for detraying the charges of the same, by an 
assessment, to be made as herein also afterwards directed. 
IIow briilge And where any river or creek lies between two parishes or 
over dividing (jistricts, and either of the parishes or districts shall desire a 
built. bridge to be built over such river or creek for the convenience 



of the inhabitants, or to repair any bridge heretofore built, 
lying as aforesaid, the Commissioners of the Roads, or a ma- „ i u (i . 
jority of each Board, of both the said parishes or districts, are make assess- 
hereby authorized and required to meet and assess all the tax- mems. 
able inhabitants of each of the said parishes or districts, in 
proportion to the last general tax paid by said taxable inhab- 
itants, with such sums of money as may be necessary to build 
or to repair any bridge lying as aforesaid. 17 sec. of Act 
1825. 9 Stat. 562. 

All assessments to be made by any Board of Commission- Assessments 
ers of Roads in this State, for the building or repairing of any to be made on 
bridge, causeway, or road, shall be assessed on the amount ^^^^ general 
of the last general tax paid by the inhabitants of the district 
or parish where the assessment becomes necessary to be made. 
Provided, however, that where there are more than one board 
of (Commissioners of Roads in any district or parish, it shall 
be the duty of all such Boards of Commissioners as may ex- 
ist in any district or parish, to meet on the first Monday in If moret'.ian 
January, in every year, to form a General Board, at the Court o"<^ board, all 
Honse of the district, or in the parish, at sach place as the make^assass- 
Boards may agree on, for the purpose of making assessments, ments. 
where necessary to be made, and reporting tlie state of funds 
of each Board, and applying any balances that may exist, to 
the order and direction of the said General Board. IS sec. 
Act 1825, 9 Stat. 562, 563. See note (3.) 

To enable any General Board, where there is more than Tax Collector 
one Board, or only one Board, to make correct assessments, to furnish the 
where assessments are necessary, it shall be the duty of the -'amount of 
i^everal Tax Collectors in the district or parish, to furnish, 
when required, said general or single Board of Commission- 
ers of Roads with the amount of tlie last general tax paid by 
the taxable inhabitants of the district or parish where the as- 
sessment may be necessary to be made. And it shall be the 
duty of the Tax Collector or Collectors in the district or pa- Duty of Tax 
rish where the assessment may be made, when fmnished with Collectors to 

.1 II /^ 11^ 11 ,1 • COllGCt (iSSGSS- 

the amount assessed by any General Board, where there is ments. 
more than on Board, or by any single Board, where there is 
only one Board, to proceed to collect the same in proportion To have same 
to the general tax as aforesaid. And the Tax Collector or power and 
Collectors shall have the same power and authority to enforce subject to 
the payment thereof, as is authorized by law for collecting the ^s in relation 
public tax. And the Tax Collector or Collectors shall collect to general tax. 
such assessments, and pay the same over to the Clerk of the ,„. , 
said General Board, where there is more than one, or to the f^^jsiied with 
Clerk of the Board where there is only one Board of Com- amount, 
missioners, at or before the time fixed by law for paying the 
general taxes into the treasury of the State; and in case of 
default, he shall be liable to the same pains and penalties as 
are provided by law for any similar default in collecting and 


paying over the public tax. Provided that the Tax ColleGtor 
or Collectors shall be furnished the amount of such assess- 
ment at least three months before the time fixed by law for 

makinff returns of the public taxes, And the Tax Collector 
His compen- , ,, • r i ■ ■ .i 

saiion. shall receive lor his services the same per centage on any sum 

he may collect for any single or general Board of Commis- 
sioners of Roads, as is now allowed him by law for collecting 
the public taxes. 19 sec. of the Act 1825, 9 Stat. 563. 

Commission- ^^'^^ ^- ^^ *^^ ^^*^ section of the Act of 1827, 9 Stat. 576, 

ers may an- the Boards of Commissioners of Roads mentioned in this clause are 

point tlicir authorized, after receiving the returns from the Tax Collectors, and 

own agent, making the assessment. " by their own agent, if they choose to do so, 

T ■ bo d *° collect the assessment so made, which said collector shall be obli- 

'ged to enter into bond for the faithful discharge of his duty, and, in. 

Liable as Tax case of default, shall be liable to the same pains and penalties as are 

Collector, ^qw provided by law, in the case of a default on the part of a Tax 


2. The 19th sec. of the Act of 1825 requires the assessment when 
Offices of be- j^^de to be paid over to the Clerk ; but by a subsequent Act passed 

Treasurer dis- ^'^ 1831, 9 Stat. 593, it is enacted that the ofHces of Secretary and 

united. Treasurer shall in no case be united in the same person by any of 

the Boards of Commissioners of Roads in this State. So that I 

suppose since that time all assessments and fines are paid to the 


3. As to the powers and liability of the Tax Collectors in relation 
to the road tax, these are defined by " an Act to define the duties of 
the several ofiicers in the collection of supplies," &c., passed the 19th 

Power of Tax December, 1843, page 248. By that Act it is declared to be "the 
Collectors. ^Ju^y Qf li^Q ^r^s Collectors in the several districts and parishes re- 
spectively, to collect all sums of money assessed by any of the 
Boards of Commissioners of the said districts and parishes, who are, 
or may hereafter be, authorized by law to assess and levy moneys, 
for the furtherance and execution of the purposes for which such 
Boards, respectively, have been or may hereafter be established and 
appointed; which sums of money, so assessed, shall be collected in 
the same manner, and the Tax Collectors, respectively, shall have 
the same power and authority to enforce payment thereof, and have 
a right, for that purpose, to use the same compulsory means and 
process as are authorized by law for the collection of the general 
Execution not j.^^^ . j^^^ qq execution shall, be issued by any Tax Collector against 
a"-ainst non- ^^^^ person or property of any person non-resident in the district or 
residents till parish wherein such assessment is made, until written notice of such 
after notice, assessment, and the amount thereof, shall have been given to such 
person, or his or her agent, by personal service of such notice on 
such person, or his or her agent, or by leaving the same at his 
or her place of residence ; and if such person shall have no known 
. . residence or agent within the State, then such notice shall be posted 
"■iven of the ^*' ^^'^ ^'^^^ ^^ *^^6 Court House of the district wherein such assess- 
amount to be ment has been made. Provided ahvai/s, that it shall be the duty of 
collected on the said Board of Commissioners, respectively, to furnish to the Tax 


Collector a notice, in writing-, of the assessment to be collected by t-he pro rataon 
him, specifying the amount to be paid by each person liable therefor, "^^ general 
or the rate per centum of the last general tax which is to be collect- 
ed by him. And the Tax Collector of the Parishes of St. Philip Tax Collector 
and St. Michael shall also be furnished by the several Boards of of St. Phillip 
Commissioners of the Poor, Commissioners of Roads, and Commis- ^ "" ^ • ^^' 
sioners of Cross Roads for Charleston Neck, with a list of all the f^,j.,^jg|^g^ ^^j^ 
persons liable to the payment of any assessment made by them, re- assessments, 
spectively, and the amounts respectively for which each person is 
liable. And the said Tax Collectors, respectively, shall receive as a 
compensation for collecting such assessment, the same per centage as 
is allowed by law for collecting the general tax. And they shall 
make return to the said Board of Commissioners, respectively, of To 'nake re- 
their collection of any such assessment, and shall pay over the j^^^^'^j. ^^^-^^ 
amount of money collected by them to the said Boards of Commis- 3 months after 
sioners, respectively, within three months after the day on which no- notice of as- 
tice of such assessment shall have been given to them, respectively, sessmentmade 
as aforesaid, by any of the said Boards of Commissioners ; but when ^ '^Ma^cli' ° 
any such assessment shall be made between the first day of January 
and the first day of March, in any year, then such return may be 
made at any time before the first day of June, then next ensuing. 
And if any Tax Collector shall make default in collecting any such 
assessment, or in making return thereof, or in paying over the mo- 
ney collected to any Board of Commissioners, he shall be liable to ^'^^' "on-pay- 

tlie said Board of Commissioners, in the same manner, and to the f„„ „„„„^,i 
11 1 • 1 T 1-11 ^'"^ ereneral 

same extent, and be subject to the same remedies, as he is by law tax. 

liable to, for a similar default in the collection, return or payment of 
the general tax. 

Note A. The power of the Tax Collector, in the collection of the Power of Col- 
general tax, is to issue execution in default of payment, and by the lector to issue 
clause above recited, it is presumed he has the same power in rela- execution for 
tion to any assessment made by any of the Boards of Commissioners. taxes. 

B. His liabilities, as declared by the 9th clause of the Act of Liable for five 
1843, are: 1. I( any Tax Collector shall neglect or refuse to make per cent per 
his return and pay the tax within the time specified by law, which ™°"''^ ^""^ "'^*_ 
shall have been received by him, it shall be the duty of the Treasu- g.! tax. 
rer, within whose division such default has been made, in addition to 

the coercive power which he may now possess, to charge the said Tax 
Collector with interest at the rate of five per cent per month, from 
the time he ought to have made such return and paid the taxes, to 
the time of settlement. 2. By various Acts of the Legislature, the Treasurer to 
Treasurer, in case of default in paying the taxes, may issue exe"cu- issue execu- 
tion against the Tax Collector for the amount, with interest at the 
rate of 5 per cent per month. 

C. By the Act of 1822, 6 Stat. 198, if any Tax Collector shall 
refuse or neglect to pay over such monies as he may have collected 

as a road or poor tax, within 5 days after the first Monday in July, Collector 
in each and every year, if applied for by the proper authority, he •f'f^ j"^ ^"^ / 
shall be liable to pay 5 per cent, per month, and the Chairman of p^y road tax. 
the Board of Commissioners of the Roads or of the Poor, shall bring 
suit, and should he recover, in any Court having jurisdiction thereof, 
he shall recover treble costs. 


D. I find in the Acts since and before 1825, some special proyi- 

'^^.^aVP^^*^m*,°'^ sions in relation to particular districts, 
ot Abbeville '■ „ „ , 

to divide as- By the Act of 1822, 9 Stat. 523, the Tax Collector for Abbeville 
sessments is required to divide the road tax equally between the four Boards 
equally. q£ Commissioners for that district. 

E. By the Act of 1827, 9 Stat. 575, the General Board for St. 
f SrGeOTt^T's Grf oi^g^'s, Dorchester, is abolished ; and each Board in the parish to 
Dorchester build and keep in repair all bridges within their respective divisions. 

abolished.' p gy the Act 1838, 9 Stat. 614, the Board of Commissioners for 

Assessments gt_ John's, Colleton, are required to make assessments on the inha- 

in t. oin s ij^tj^Qts of Edisto alone, for the construction and repair of roads and 

Colleton, how " . -, , - , . , , . ^ cti, t 

made. bridges on that island, and to assess the inhabitants oi Johns una 

^Yadmalaw Island, for the coustruciicn and repair of roads and 
bridges on these I&lands. 
General Board G. A General Board was established for Pickens and Anderson, 
ol Pickens, separately, by the Act of 1830, 8 Stat. 558 By the Act of 1841, 
the General Board for Pickens was abolished, but was again 
re-established by the Act of 1843, p. 271. for the purpose ot asses- 
sing the road tax and authorizing the expenditure thereof, but to 
continue separate for all other purposes, and to have but one Trea- 
surer, charged with the receipts and disbursements of all monies 
arising from taxation by the General Board. 

H. By an Act of 1845, p. 349, the General Board of St John's, 
General Board Colleton, is to consist of the Boards for Edisto, Wadmalaw, and 
of St. John's John's Island, and the Commissioners of Newtown Haulover, and 
Colleton. "\Yaipg Q^t, but a Commissioner of Newtown Cut is not to be a mem- 
ber, if an inhabitant of James Island. 

I. State of South Carolina v. Odavi, 1 Spears, 263. Where the 
Clerk and Treasurer of the Board verbally informed the Tax Col- 
lector that he was required to collect 25 per cent instead of 20 per 
cent., as directed by the resolution of the Board, and the Collector 
proceeded to act under the verbal direction, without taking excep- 
tion to this informal notice, it ivas held that he and his securities 
were liable for the amount collected. The assessment for a certain 
per centage on the amount of a general tax. is sufBcient, without as- 
sessing each inhabitant a particular sum. See also Commissioners 
V. Guerard^ 1 Spears, 215. 
No General K. The 3d sec. of the Act of 1829, 9 Stat. 583, repeals the 18th 
S^"^ t°"^ ^^^' ^^ ^^^^ ^^^ °^ 1825, so far as relates to the several Boards of 
Commissioners for Sumter District. 

L. The general law in relation to assessments, is altered by the 
Act of 1846, p. 369, in relation to the Bay road, which authorizes 
the Commissioners of the parish of St. John's Colleton, to assess 
on the householders of Edingsville, at the rates of the general tax 
of each, such suras as may be necessary, from time to time, to build 
and keep in repair the bridges on the said road. 

M. The Act of 1827, 9 Stat. 577, gives the Commissioners of 
Roads, Bridges and Ferries in the District of Edgefield, power to 
appoint a fit and proper person to collect all fines which shall be 
imposed by the said Commissioners for neglect of performance of 







road duty, when required by the Commissioners to perform the 
same. Provided the said Commissioners take bond and sutiicieut 
security of said collector for the faithful performance of his duty. 

Sec. 24. It shall be the duty of the. Commissioners of the 
roads, in their respective parishes, districts and divisions, to 
cause all roads heretofore laid out or hereafter to be laid out, 
leading directly from any part of this Stale to Chaileston, -width of 
Columbia, Camden, Hamburgh or t^heraw, to be made and roads. 
cleared 30 feet wide, and ail other roads to be cleared 20 
feet wide. 21 sec. Act 1S25. 9 Stat. 563. 

Note 1. Before this Act all public highways were required to be 
laid out 20 feet wide. Some of the earliest Acts say 16 and some 40. 
2. State V. Caldicell^ 2 Spears, 162, 1. Where a road is laid out 
along a pre existing fence, the width must be measured from the 
outer extremity of the fence. 2. When a road exists without a How measure- 
fence on either side, no fence or other obstruction can be lawfully mem to be 
placed within half the width measured from the centre. 3. If the made, 
beaten tract be permanent and well defined, the measurement must 
be from the centre of it, however crooked it may be, but presump- 
tions are in favor of a straight line 4. Where a road between two 
parcels of land is required to be 30 feet wide, the occupant on neither 
side can lawfully place his fence within 15 feet of the centre. 

3. Ex rel. Price v. Commissioners of Lancaster. — Where the If a question 
subject matter and the person are within the jurisdiction of the be within the 
Commisiouers of Roads, their decision is final and conclusive, unless jurisdiction of 
they have exceeded their jurisdiction, admitted illegal evidence, or decision final 
in some way violated the settled law. 

Sec. 25. Every Commissioner of roads, in his respective t- , r^ > 

.... 1 11 -^ ,1 , , , ' 1 1 t-ach Com'r. 

division, snail cause all the roads to be posted and num- to post and 

bered, and at each fork of said roads, a pointer declaring the numberthe 

direction of such roads; and that every commissioner fliiliiig I'o^'^s and to 

or neglecting to do so, shall be liable to pay the sum of ten ters. 

dollars, for each and every such neglect, to be recovered by 

indictment in the Court of General Sessions of the district 

wherein the same occurs, to be paid, when collected, to the 

Treasurer of the Board to which such delinquent belongs; 

provided that no Commissioner shall be liable to the said 

penalty who puts up the said pointers at such time as he 

works his road division. 15 sec. of the Act 1843, p. 269. 

Note 1. By the 22d sec. of the Act of 1825, 9 Stat. 563, this 
was the duty of the Board, but by the above clause it is now the 
duty of each Commissioner within his division. 

And if any person or persons shall cut down, burn, or de- Fine for des- 
face any mile post, or stone, or pointer, erected as aforesaid, troying posts 
he, she, or they, shall, upon conviction thereof, forfeit and and pointers. 
pay the sum of ten dollars, to be recovered as hereinafter di- 
rected. (See next section.) 22 sec. Act 1825, 9 Stat. 563. 


Commission- Sec. 26. Each Board of Commissioners of roads in this 
A'cm defauUers '^'^^*^' ^'^ their respective districts, parishes and divisions, 
and impose shall have power to summon, by two days ]iotice, any person 
fines not ex- or pei'sons who may make default in performing any duty 
ceeding20 q^. [y^Q^-^y g^f-,y penalty imposed by this Act, not exceeding 
20 dollars, leqiiiring such person or persons to be and ap- 
pear before the Board of Commissioners of roads for the dis- 
tmct, parish or division where the default was made, or 
fine or penalty incurred, and the said Board of Commission- 
ers of roads, are hereby empowered to hear, try and deter- 
mine the same, and to award execution for any defliult, fine 
or penalty imposed by this Act, not exceeding twenty dollars. 
25 sec. Act 1825, 9 Stat. 565. 

By the 27 sec. of the Act of 1826, Stat. 570, the above 
clause is repealed, but 1 have inserted it because I understand 
the practice is to try all defaulters before the Board. The 
Fines, how im- Act of 1826 is as follows "hereafter when any default shall 
posed and col- be made in the performance of any road duty, or any fine or 
Act^of'i82? fo^'f'^ilni'e imposed by said Act, (the Act of 1825) not excee- 
ding twenty dollars, be incurred in any one of the divisions 
of roads in this State, it shall be the duty of the Commis- 
sioner who superintends said division, as soon as practicable 
after such default is made or fine or penalty incurred, (o call 
to his assistance any two Commissioneis of roads belonging 
to the same Board of which he is a member, and to summon, 
by two days notice at the least, the person or persons so de- 
faulting or incurring such fine or penalty before them, and 
the said Commissioners or any two of them, are hereby au- 
thorized and empowered to hear, try and determine the same, 
and to award execution for any default, fine or penalty im- 
Appeal to posed by said Act, not exceeding 20 dollars ; (1) provided that 
Board allowed, .^i^y pgj-son who may be dissatisfied with any sucli award, 
may at any time within 10 days thereafter, upon giving no- 
tice thereof in writing to said Commissioner, appeal to the 
General Board at its next meeting, and said Board shall 
hear, try and determine upon said appeal in the same man- 
ner as herein above directed." 

Note 1. Jenkins v. Commissioners of Roads. Cheves, 109. The 
Commissioners of Roads have no power to impose or collect fines 
under twenty dollars. 

They may., perhaps, assess fines of greater amount, but no mode 
of collecting them is pointed out by the Act. 

The practice now is, to bring an action in the name of the Com- 
missioners, where the amount claimed exceeds twenty dollars, and 
the case is tried according to the rules of the Court, bj proof ou 
Defaulters both sides. 

must be sum- 2. Gloveo' v. Simons and others, 4 McC. 67. 1. Before the Com- 
mon ed. 


missioners "can fine a defaulter, they must summon him to shew 
cause, at a certain time and place. 

2. A warrant issued to collect a fine, is void if it does not specify 
the amount of the fine. 3. The Commissioners are liable in tres- 
pass if the above requisites are not complied with. 4. ihe Commis- 
sioners have no power to compel an individual to work on his own 

3. In the ease of Murray, 1 Rich. 335, it is said the 25 sec. of the 
Act of 1825, as well as other parts of the same Act which apply to 
road.s, do not apply to the Commissioners of cuts and inland navi- 
gation along the sea coast. The same is re-afiitmed in the case of 
iSeahrook, 2 Strob. 560. 

Sec. 27. It shall and may be lawful, from and after the -^^^^^^.,^^^^3 ^^^ 
passing of this Act, for every Board of Commissioners of executions 
roads in this State, to direct their warrants and executions, mayissi^to 
for any purpose herein authorized, to all and singular the ^.^'^ ' 
■sheriffs of this State, who shall be authorized and required ^[^^^'^^3°^^^^^]^^ 
to proceed to serve or execute the same, and v/hen executed er cases and 
to return the same to the clerk who may issue the same, in^'etum toCl'k. 
a reasonable time, and the said sheriff shall pay over to the Topayover 
clerk (1) of the said Board of Commissioners of roads, all money under 
such fines as he may collect for the Board, in the same time penalty. 
and under the same penalties for detention as prescribed by 
law in other cases, and shall be allowed the same f^'^stgi^gj.jfl-^ 
for entry, mileage, and serving any warrant or execution is- cost as in other 
sued by order of any Board of Commissioners of roads, and cases. 
also tlie same per centage for receiving and paying over any 
monies to any Board of Commissioners of roads, as he is now 
entitled to receive on executions from the Courts of Law. 
27 sec. Act 1825. 9 Stat. 565. 

Note 1. As the offices of Clerk and Treasurer are now disunited, 
the money must be paid to the Treasurer. Both oflBces were united 
b^ the Act of 1825. 

Sec. 28. If any free negro, mulatto or mestizo, shall be 
summoned to work on the roads according to the provisions 
of this Act, and shall refuse or neglect to work thereon as 
required by the Commissioner or Commissioners of suchl?'''^'^ Negress 

11 1 II 1 I- 1 1 ^ r t 1 lor not work- 

road, he shall be liable to be lined, to the same extent asj^o- to be im- 

any other person, and in default of payment of such fine, prisoned. 
it shall and may be lawful for the Commissioner or Com- 
missioners, to issue his or their warrant to any constable, 
requiring and commanding him to take such free negro, mu- 
latto or mestizo into his custody, and deliver him to the goa- 
ler of the district, to be confined for such time as the Com- 
missioner or Commissioners in such warrant shall direct, not 
exceeding twelve days in any one year. Sec. 29 of Act of 
1825. 9 Stat. 5(36. 

Quere. Is this imperative 1 May not the Commissioners issue 
an execution, as in other cases? 


Fines on white Note 1 . All fines imposed on white persons, are to be collected by 
persons to be jg^ ^^^^ ^^-^^ ^^ ^^i^ ffoods and chattels of the ofi"ender. The Act 
levy and sale ^^ 1825 authorizes the issuing of executions directed to the sheriff", 
of goods and but nothing is said as to the mode of collection. By the Act of 
chattels. 1795, 9 Stat. 368, all fin(>s, penalties and forfeitures shall be recov- 
ered by immediate warrant of distress, under the hands of any 
three of the said Commissioners, against any of the goods and chat- 
tels of the person offending, which, after ten days notice, shall be 
sold, for the purpose of paying the fine inflicted, and the charges 
accruing thereon, and the overplus, if any, returned to the said per- 
son. This Act relates to fines imposed on Commissioners, warners, 
and overseers, for refusing to act, or neglect of duty, and on those 
who neglect or refuse to make return of their male slave. 

By the Act of 1788, 9 Stat. 310, if any white person shall 
Those whore- ^^go-igct or refuse to work, or to do his duty when in place, the said 

I11S6 to worlv or • ■ 

to do their duty o'^'*^^'^'^*^^ shall return the name of such white person to the Commis- 
when on the sioners, who are hereby authorized to fine the said person two dol- 
road, maybe lars for the first default, and ten dollars if repeated, and on non- 
fined, and for payment of the same, to be immediately committed to the goal of 
"may be com- *'^^ district where the off"ender resides, there to remain for ten days, 
mitted to jail, or until the fine be paid. 

„. , By a prior section of the same Act, 9 Stat. 309, if any person or 

fail to attend persons shall neglect or refuse to go, or to send their male slaves, 
to be proceed- when thereunto summoned by the Commissioner aforesaid, or by 
ed against by any person to be by them appointed, or any three of tliem, for that 
warrantof dis- pm-pQgg^ every such person shall forfeit and pay for the use of the 
said roads and bridges, two dollars for hiiuself, and one dollar per 
day for every male slave so neglected or refused to be sent, to he re- 
covered by immediate tvarrant of distress^ tender the hand of any 
tltree of tJic Commissioners^ against any of tlie goods and chattels 
of the dtfaultcr^ ivhich^ cftcr ten days notice^ shall be sold for the 
purjiosc of ]jaying the fine aforesaid, and charges accruing thereon^ 
and the oveiylus, if any, returned to such defaidtcr. 

I infer that the clause of the Act of 1788, first above quoted? 
difterence. relates to those who when summoned appear, but neglect or refuse 
to work ; and the last section relates to those who fail to appear 
when summoned. The first may be imprisoned for non-payment of 
fine, the latter cannot, but can only be proceeded against by war- 
rant of distress, and sale of goods and chattels. 

Quere. — Does the authority to issue executions to the sherifi", en- 
large the effect of the execution so as to authorize the sheriff to sell 
the land of the defaulter? I incline to the opinion it does not. 


Sec. 20. By the 26th sec. of the Act of 1825, 9 Stat. 565, 
Chairman and each Boaid of Commissioners of roads in this State shall ap- 
Treasm-'er to po'"*- ^ Chairman, whose duty it shall be to preside over all 
be elected, and regular meetings of the Board, and to countersign all war- 
duties of each, rants or executions which may be ordered by the Board a- 
gainst defaulters, or for fines or penalties imposed by this 


Act ; and they shall also elect some fit person to act both as 
Clerk (Did Treasurer to the Board, and allow him such rea- 
sonable compensation for his services as they may deeni fit 
and proper, who shall enter into bond, with securities to be 
approved by the Board of Commissioners of roads making 
such appointment, payable to the Stale of South Carolina, in 
such penal simi as the said Board shall deem sufficient to 
ensin-e the faiihful di.'charge of all the duties of such Clerk 
and Treasurer imposed by this Act ; which bond shall be de- 
posited in the treasury of the division in which such Clerk 
and Treasurer may reside, and whose duty also it shall be 
to keep a regular journal of tlie transactions of the Board, to 
issue all such licenses to retailers of spiiitous liquors, tavern 
keepers, and keejiers of billiard tables, as the Board may di- 
rect, and also sign and issue all warrants or executions as 
may be ordered by the Board against any defaulter, to re- 
ceive all such sums of money as may become due the said 
Board from fines, licenses, assessments, sales of eslrays or 
otherwise, and pay over the same when ordered by the Board ; 
and shall also keep a regular accoimt of all monies received 
on account of and paid out to the order of the Board, which 
account shall always be open to the inspection of any citizen 
of the district or parish who may desire to see the same. 

By the 26 sec. of the road Act of 1826, 9 Stat. 570, the May electa 
Boards of Commissioners of Roads were anihoiized to elect a '^^J'^^"^^''/*"^ 
Treasurer and also a Secretary, or to assign the duties of both ^' 

to one person, but by the 30 sec. of the Act of 1831, 9 Stat 
593, it is enacted "that the offices of Secretary and Trea- Offices of Sec- 
surer shall in no case be united by any of the Boards of retaiy and 
Commissioners of Roads in this State. See sec. 30. disurfiteT 

Note 1. By the Act of 1835, (9 Stat 604,) whenever any Com- chairman to 
missioner of the Eoads in any of the Boards of this State shall be appohit over- 
absent from his district or parish, so that the public roads in his seer if Com'r. 
division are neglected or badly repaired, it shall be the duty of the '® ?'^^':"f .'^''^'^ 
Chairman of the Board where such neglect occurs, to appoint some "^ iMsion. 
fit and proper person as overseer of said division, and to cause the 
road of such absent person to be put in proper order. 

Sec. 30. By the Act of 1845, p. 294-5, each Board of 
Conunissijners of public buildings, of the poor, and of roads, ^ , 
bridges and ferries, shall appoint a treasurer, who shall hold elect Treas'r. 
his office during the pleasure of the Board, and shall receive, who shall give 
keen and disburse, under the direction of the Board, all mon- '^'^."^^,'' ''^r 

1 • .11 . • I ' 1 quired — his 

les niicjer its control, and accoimt in such manner and at duties. 
such times as the Board may direct ; such treasurer, before 
entering on his duties, shall (when such Board shall deem 
it expedient) give bond, with sureties to be approved by 
the Board, for the faiihful performance of the duties of his 


Note 1. The bond. I presume, should be according to the 26 sec. 
of the Act of 1825. See ante, sec. 29. 

2. By the Act of 1843, p. 271, by which the two Boards for Pick- 
ens were united for certain purposes, it was enacted that there should 
' ' be but one Treasurer charged with the receipt and disbursement of 

all monies arising from taxation by the general Board. But by the 
Act of 1849, p. 615, it is enacted, "that the Commissioners of the 
Roads, Bridges and Ferries of Pickens District, Fifth Regiment of 
South Carolina Militia, be, and are' hereby authorized to appoint a 
Treasurer to each of the Boards of Commissioners of Roads, and 
that instead of five per cent., two and a half per cent, be allowed 
such Treasurer, for receiving and disbursing the monies collected by 
said Boards." 

By the xVct of 1818, 6 Stat., 109, the Treasurer is allowed 2i per 
cent, for receiving, and 2^ per cent, for paying out all monies re- 
ceived and disbursed by him. (See Pickens.) 

To report in Sec. 3L By the 2d. section of the same Act, 1845, p. 294-5 
writing to the gjj^l^ of the Said Boards shall report in writing to the 

Judge of the . r r-^ i-»i r- i i- 

Circuit Court, pi'esid nig Jndgeot the Court ol Common Pleas oi the dis- 

at every tall trict in whlch such Board exists, on tlie first day of each Fall 

term. Term, all transactions connected with its administration. The 

said report shall be accompanied with an exact account of 

Report to be all moiii^s assessed and received by them from time to time, 

read in open and all disbursements made, — and the said presiding Judge 

uoun «. niea. gj-j^ll (^g^^^gg g^jj report to be read in open Court by the Clerk 

on the first day of the Term, and to be filed in the Clerk's 


Sec. 3 of same Act. The said Boards shall, immediately 
Comrn'rs. to after the adjournment of the Court, cause the said reports to 
publish report |3Q printed and published in the nearest newspaper, and if 
and^fnimiTat^'^'^^'^ ^'^ ^^^ newspaper, then to affix one copy of the said re- 
Court House port to the Court House door, and three copies at three other 
and 3 public couspicuous places within the parish or district, as the case 

places. 1 

^ may be. 

Sec. 4 of same Act. For neglect or refusal to make such 

Penalty for j.gpQ,.j; qj. publication, such Board neelecting or refusing shall 

reporter pub- forfeit and pay fifty dollars, to be recovered by action of debt 

lication. in any Court of competent jurisdiction ; and it shall be the 

T^ , f e V duty of the Solicitor of the Circuit or of the Attorney General, 

Duty of Solic- ■; , i t ■ i . • i i • • i 

itors therein. <^s the case may be, and he is hereby required, to brmg said 

action for the recovery of the said penalty. 

These clauses of the Act of 1845 must be considered as 
a repeal of the former Acts, which required the Commission- 
ers to make an annual report to the Comptroller, and also 
of the Act requiring them to make a Report to the Clerk, to 
be laid before the grand jury. See Act 1842, page 228. The 


Act of 1845 does not, as the Act of 1842, require the report 
.to be laid before the grand jury, but that is the usual prac- 
tice, and a very proper one. 

Sec. 32. Act 1830. sec. ix, 9 Stat. 587. From and after the „ 

r , ■ , 'i T-« 1 /■ ^-1 • • c r, 1 • Commission- 

passing of this Act, the lioard of Commissioners of Koads in ersmaydis- 

each and every district and parish, shall have power to discon- cominuea 
tinue any road now estabhshed, or hereafter to be established, ™^.'^> i^n^tob- 
by law, after three months public notice shall have been ^^^^ 
given, by advertisement iu tlie settlement through which the 
road proposed to be discontinued passes: — Provided no ob- 
jection should be made thereto; but in case any objection 
should be made to the closing up or discontinuing of the 
said road, then the same sball be kept open and repaired, 
until discontinued according to law. 

Sec. 33. Sec. xix of Act 1830, 9 Stat. 588. The several rn..r^u.;.>. 

_, i/>/^ •■ r rt 1 ■ 1 IT- 1 v^ommission- 

Boards of Commissioners of Koads, in the several districts and ers may pun- 
parishes throughout this State, constituted according to law, ish for con- 
shall have power, whilst formed and sitting as such for the tempt, 
performance of their appropriate duties and the transaction 
of their legal business, to protect themselves fiom all undue 
interruption and disturbance, and from insult and contempt, 
in the same manner, by the same means, and to the same 
extent, as justices of the peace and quorum and other courts 
of limited and inferior jurisdiction now have, and are hereby 
vested with all the rights, powers and privileges, whilst sit- 
ting and transacting business as a board, whicli such justices 
and inferior courts now have, and by law may exercise, of 
preventing and punishing such interruption, disturbance, 
insult and contempt. 

Note. — It is incideDt to every court to punish for contempt, any 
one who interrupts their proceedings whilst sitting as a court, by 
fine and imprisonment. It is a high misdemeanor, and punished 
in a summary way, on account of the necessity of prompt decisive 
action in such case. In the case of the State v. JoJirison^ 2 Bay, 
385, it was decided that a justice of the peace may commit for 
contempt and abuse oflered to his face, whilst in the execution of 
his office. 

Sec. 34. Sec. 9, Act 1841, p. 158. Each Commissioner 
shall so equalize the work to be done on his road division, ^*^™''"ission- 
that each person liable to road duty shall be required to ^""^ '°*^'^"''^''^*^- 
Avork the same number of days. 

Note 1. By the Act of 1825, the power to designate what hands 
shall work on the several roads, is given to the Board and not to 
the several Commissioners. The separate Commissioner cannot 
equalize the work as required by the Acf, unless he has the power 
to apportion the work. Will not a fair interpretation of this Act 



Fines over 
SO, how col- 

operate as a repeal of the Act of 1825, so as to give to each Com- 
missioner the power to designate what hands shoil work on the 
several roads within his division ? I do not perceive that in any 
other way he can produce the equality which the Act requires. 

Sec. 35. All sums of money over and above twenty dol- 
lars, which shall be due any Board of Commissioners of 
Roads in this Stale, by any person or persons whomsoever, 
for neglect to make return of hands, or to send hands on the 
road, or for any other causes, shall be recovered by action of 
debt, in any court of competent jurisdiction. See. 22, Act 
1841, p. 160. 

Note 1. The Act of 1825 gave tlie Commissioners the power to 
hear and determine all cases where the fine did not exceed twenty 
dollars, but contained no provision for collecting sums over that 
amount. The law remained thus until 1841. How such fines were 
collected in the mean time, I do not know. The question was first 
made, I believe, in the case of Jen/d?is, (Cheves, 109,) in the year 
1840. The next year, the Act above recited was passed. The first 
case under it was the case of Guerard, (1 Spears, 215) in which 
the right of the Commissioners to sue in the Court of Common 
Picas, was affirmed. The right was again afiirmed in Murray'' s case, 
(I Rich. 335) In this case a doubt is expressed, whether the 
Commissioners should sue by their title as Commissioners, or by 
their individual names, styling themselves Commissioners. They 
are not a corporation, (2 lirev. 293,) and have no corporate name. 
I believe the usual course is, to sue in the names of the Commis- 
sioners as Commissioners. But even if they were to sue by their 
ofiicial title, the objection must be by plea in abatement. 1 Rich. 
335. In the same case it is stated as doubtful, whether there should 
be any action of the l^oard ascertaining the amount of the fine 
before action brought. The practice now is, to proceed without any 
assessment, and to prove on the trial every thing necessary to re- 

Trees to be Sec. 36. When any road shall be laid out, altered or 

left. amended, the Commissioners of such road, if they think fit, 

may give directions for leaving such trees standing as shall 

be most convenient for sliade to the said road ; and if any 

person shall wilfully or wantonly cut down or kill any tree 

Fineforde- gi'owing within ten feel of the load laid out as aforesaid, 

stroying them, every such person shall, for each tree so cut down or killed, 

forfeit the sum of five pounds, to be recovered by warrant, 

from any three of the Commissioners. Sec. 14 of Act 17SS, 

9 Stat. 312, 

Note 1. I have inserted this clause, because it may not be repealed 
by the Act of 1825. I incline to the opinion it is not repealed, 
except so far as relates to th3 mode of recovering the penalty. That, 
I presume, must be under the Act of 1841. See sec, 35. 


Sec. 37. It shall and may be lawful for the several Boards 
of Commissioners throughout this State, to parcel out the Commission- 
high roads under their charge respectively, among such Orel's i^^y parcel 
the inhabitants and others liable to work on high roads, in '^"' "• '*^ '^"'^ ^• 
such equal, convenient and just allotments and proportions 
as they shall judge proper ; and the several persons aloresaid 
shall be obliged to keep in good order and repair the said 
roads so allotted to them respectively, under the same fines 
and penalties now imposed on persons neglecting to work on 
high roads, as by laio are subject^ any law, usage or custom 
to the contrary notwithstanding. Sec. 18 Act 1778, 9 Stat. 

Note 1. I have inserted this clause, although it is omitted in the 
Act of 1825. There is no repugnance or inconsistency, and it is 
not, therefore, within the repealing clause. Both this and the pre- 
ceding section, (36) are wise and proper provisions. 

Each Commissioner, under the Act of 1825, has entire jurisdic- 
tion over the roads within his division, and, therefore, all the pow- 
ers given the Board may, (if the Act be of force) be exercised by 
every Commissioner within his jurisdiction. 

Sec. 38. On the completion of any new road in future, po^erof 
those persons who shall have been appointed to lay out and commission- 
complete the same, shall cease to be and continue Commis- ers to open 
sioners of the same; and each and every new road so com- ''°'^5'^' *° ^^^.^® 
pleted, shall henceforth fall under the authority of the judges opensd. 
of the county court, where county courts are established, or 
under the authority of the Board of Commissioners, in those 
parishes or election districts where no county courts are 
established. Sec. 49 Act 1795, 9 Stat. 371. 

Note 1. The county courts were abolished in the year 1798, and 
since then, the roads throughout the State have been under the 
jurisdiction of Commissioners. 

The provision of the clause above quoted, would, I think, follow, 
of course, from the general law, but to remove all doubts it is in- 
serted. There are similar provisions in other Acts. 

Sec. 39. It shall not be lawful for any board of Commis- 
sioners of roads, at its regular semi-annual meeting, or at any ■'^^'^g^.P^^J"^^? 
other time, to have dinner provided, to be paid for out of the funds of the 
funds of the Board — and that upon the Treasurer, or any board, 
other member or members of any Board, so paying for such 
dinner out of such fund, he or they shall bo liable to be 
fined fifty dollars, to be recovered by indictment ; which Penalty, 
said sum of fifty dollars so recovered, shall be paid to ths 
Commissioners of Public Buildings for the district in which 
caid Board shall be. Sec. 21 Act 1841, p. 158. 

Sec. 40. The South Carolina Canal and Rail Road Com- S. C. R. Road 


and Canal pany are authorized to commute at the rate of fifty cents 
niay°commute. l?*^^' ^^^J '^^^''^ ^'^^ several Boards of Commissioners of Rt)ads, 
'ibr each hand hable to load duty employed by said comi)auy. 
Sec. 14, Act 1841, p. 158. 

Sec. 41. Each Commissioner of Roads, in his respective 
Each Com- division, shall appoint wariiers, whose duty it shall be to 
a™'oiiit"w"' warn the inhabitants in the division to make a return (on 
ers tosummmioa^'i i^ I'ei^'i^sd) of all the male slaves belonging to ihern, 
inhabitants to or uuder their care, management or direction, from sixteen to 
makejeturnoffjfjy years of age, liable to perform road duty m the said 

Sec. 42. (23 sec. Act 1825, 9 Stat. 564.) The sole and 
Board to grant exchisive power of granting licenses to retailers of spirituous 

licenses to tav- 1- . i ir ru-ii-i iii i 

ern keepers iiqut>rs, taveru-keeper.-! and keepers of billiard tables, le and 
retailers and the same is hereby vested in the Commissioners of Roads, or 
keepers of bii- a majority of them, in their respective districts, parishes or 
lai ta es. ^livisious, throughout the State, except in such cases where the 
Legislature has delegated, or may hereafter delegate, the same 
power to other persons ;, and that the Commissioners of Roads, 
or a majority of them, in their respective districts, parishes or 
divisions, shall, at any stated meeting, and at no other time, 
hear all applications for licenses to keep taverns and retail 
spirituous liquors and keep billiard table or tables, and shall 
reject or grant such license or licenses, for one year, as to them 
Clerk to o-rant ^'^''•^^ seem proper. Provided, That it shall and may be laW' 
tavern and le-ful for the Clerk of any Board of Commissioners of Roads, 
tailers license iji their respective district, parish or division, to grant a per- 
in recess. ^^ ^^ license. Wider his hand and seal, to any person or per- 
sons, to keep a tavern or retail spirituous liquors during the 
recess of the sittings of their respective Boards, which permit 
or license shall retnain in force only until the next meeting 
Applicant to of said Board, respectively. And provided also, that the 
produc^e certi-pg^.^Q^ ^^ jjgj-gons applying' for said permit or license, shall 
missxoner oi I'^oduce to the Clerk of the Board the certificate of the Coin- 
division, missioner of Roads, residing in the division where the apjjli- 
cant intends to keep a tavern, or retail spirituous liquors, 
Bond to be certifying that the person or persons applying, is or arepro- 
given. ^g^ persons to he per?7iitted to keep a tavern or retail spirit- 
oiis liquors, and shall give bond and security in the penal 
sum, of four hundred dollars, payable to the said Board of 
Commissioners, for the district, parish or division where the 
application shall be made, conditioned that he tvill, at tltenext 
regular tneeting of the Board of Commissioners for the dis- 
trict, parish or division where the application shall be made, 
make application to the said Board, for a license for one year, 
to take date from, the regular meeting of the Board of Com- 
missioners, and shall also, at the time of such application, 




pay to the said Clerk a sum that shall he equal to the rates 
oj a license for the year, for the time that the said permit or 
license shall be in force. And that every tavern keeper and piice of H- 
retailer of spirito us liquors shall pay for his license the sum cense to retail 
of ff teen dollars to the Board of C ommissioners of the Roads, and keep tav- 
and two dollars for the Clerk ; and that any persoti or j)er- 
sons icho shall retail spiritous liquors, contrary lo the piovi- Penalty for 
sions of this Act, or keep tavern, wiihout a license or li- retailing and 
censes from said Board of Commissioners, shall, on convic- g^n. 
lion, forfeit and pay the sum of one hundred dollars. Pro- 
vided, however, that nothing herein contained shall prevent Exception, 
any person from selling or retailing spiritous liquors not less 
than one quart, distilled on his own plantation, of the growth 
and produce of this State, and to be carried away from the Pnce of li- 
same; and that every person applying for a license to keep a ^jj^r^ table ' 
public billiard table or tables, shall pay for such license the 
siari ot fifty dollars ; and any person or persons who shall 
keep a billiard table or tables, without a license from the said 
Board of Commissioners, shall, on conviction, pay the sum of Penaltyfor 
three hundred dollars, to be recovered in any District Court in keeping b ii- 

^1 . o. . liaid table. 

this State. 

By an Act passed anterior to 1822, no billiard fable could ^^^ i^jjlj^^^ ^^^ 
be set up in Columbia, or within 15 miles of Columbia. Bybiein Colum- 
the Act of 1822, 9 Stat. 524, the distance was reduced to 10 bia or within 
miles. But the 11 sec. of the Act of 1826 allows billiard ta- JO miles, 
bles to be set up wjthin 5 miles of Columbia during the 
months of July. August and September. 9 Stat. 568. 

By the Act 1835, 6 Stat. 528 : 1. It shall not be lawful for 
any corporate body, or the Commissioners of the Roads, in All retailers to 
their respective limits, to grant any license to retail spiritu- enter recogni- 
ous liquors, unless the applicant for such license shall first ^sureties! 
enter into recognizance with two substantial freeholders, who 
are residents of the district, as sureties in the penally of one penalty of 
thousand dollars, and conditioned for the observance of all SiOOO. 
laws in force in regard to retailing spirituous liquors, and 
the recognizance so given shall be liable to be estreated for Condition. 
all fines imposed by the Court, for any violation of the said 
laws, of which the party shall be convicted by indictment. 

2. Every vender or retailer of spirituous liquors, who shall 
clandestinely, or behind or within any screen, booth or other ^jj^°j^°J^g^!._ 
place- of concealment, exchange, give, deliver, sell or retail 

any spirituous liquors, shall, upon conviction, be fined in a Fine, 
sum not less than fifty nor more than two hundred dollars, 
according to the discretion of the Judge. 

3. That hereafter the sum of fifty dollars shall be paid for Topay5;50 
any license to retail spirituous liquors, in lieu of the sum for license, 
heretofore required by law. 


Note 1. The law in relation to licenses to retailers of spiritnons 
liquors and tavern keepers, and especially the latter, was very much 
altered by the Act of 1849, p. 557. Instead of attempting to expunge 
from the previous Acts what is repugnant to and repealed by this 
Act, I have thought it best to give the whole entire, and to add 
No license to by way of note such remarks as will indicate what the law now is. 
retail under 1 The provisions of the Act of 1849 are, 1. No license shall be grant- 
quart, except ^^ jj^ ^i^jg State for the sale of spiritous liqviors in quantities less than 
ers, one quart, or which shall authorize the drinking of such liquors at 
the place where sold, except to tavern keepers, in the manner pre- 
scribed by this Act. 
Toberecom- 2. No person shall be licensed to keep a tavern, but such as shall 
mended by 3 be recommended by at least three respectable freeholders of the neigh- 
freeholders, bourhood where such tavern is proposed to be kept, who shall certify 

„ , that the person so recommended by them is of good repute for hon- 

To have two , jv-i. j-i aai j- x 

snare beds ^^^J ^^^ sobriety, and is known to the persons so recommending, to 

house room, have at least two spare beds, and the necessary bedding, more than 
stabUng and is necessary for the family of the said applicant, and is well provided 
provender, ^j^^j^ house-room, stabling and provender ; and, thereupon, the Corn- 
Commission- missioners of said Roads, to whom such application is made, may, in 
^'^^g^g^^^'^^H^heir discretion, grant the license prayed for, which shall continue 
cation. for the term of one year and no longer. 

3. That every person, before he or she shall receive a license to 
To enter into keep a tavern, shall become bound by recognizance to the State in the 
recognizance gum of one thousand dollars, with two good and sufficient sureties, 
fori^lOOO. lyeiug freeholders in the district, to be approved of by the Commis- 
sioners of roads granting such license, which recognizance shall be 
in the form or to the efiect following . " Know all men by these pre- 
sents, that we A. B., C. D. and E. F., of the district of ac- 
knowledge ourselves to owe the State of South Carolina the sum of 
one thousand dollars, to which payment, to be well and truly made, we 
bind ourselves and every of us, each and every of our heirs, execu- 
tors and administrators, jointly and severally, firmly by these pre- 
sents. Witness our hands and seals, this day of in the 
year of our Lord one thousand eight hundred and . The con- 
Condition. (Jition of this recognizance is such, that whereas the above bound A. 
B. is licensed to keep a tavern in the house occupied by him or her 
in (the location particularly described) for the space of one year from 
the date hereof Now if the said A. B. during the continuance of 
the said license, shall not keep a disorderly house, nor suffer or per- 
mit any unlawful gaming in or about his or her said house, nor vio- 
late the laws concerning the traffic in spirituous liquors, but shall, 
during the said time, in all things, use and maintain good order 
and rule, and find and provide good, wholesome and sufficient lodg- 
ing, diet and entertainment for man, and stabling and provender for 
horse, and observe the directions of the law in relation to slaves and 
free persons of color, and the keeping of taverns, then this recogni- 
zance to be void, or else to remain of full force and virtue." 

4. Every licensed tavern keeper shall have and keep in his or her 

h^^^^ 'fT" house so licensed, at least two good feather beds or matrasses, for 

wholesome g^^ests, with good and sufficient bed clothes for the same, and pro- 


vide and keep good, wholesome and sufficient diet for travellers, and food, and stab- 
stabling and provender for four horses, more than his or her own ling and pro- 
fitock, upon pain of forfeiting his license and recognizance, and be- horses 
ing subject to the like penalties as for selling without license. Penaltv 

5. That no license shall entitle any person to keep a tavern in No license to 
any other place than that in which it was first kept, by virtue of said authorize 
license, and such license in regard to all other persons or places, keepingtavem 

, ,1 , . 1 ° ^ r ; atadifterent 

shall be void. ^ ^ pl^^^_ 

6. No license to keep a tavern shall authorize the person receiv- 
ing the same, or any person by his or her authority or permission, Nq spirits to 
to sell, or keep and expose for sale, spirituous liquors, in any store, be sold except 
shop or other place, where goods, wares and merchandise, of any i" ''^^ tavern 
kind or description, are sold, or at any stand, bar or other place out house. 

of the tavern house, for which license shall have been granted ac- 
cording to law, and any person offending against the provisions of 
this section f^hall forfeit his or her license and recognizance, and 
shall be liable to all the penalties imposed by law for selling with- 
out license. 

7. That from and after the passing of this Act, the price of tav- . 

ern license' shall be fifty dollars, and no such license shall be granted ^^^^cense^^™ 
until the said sum shall have been paid to the Commissioners of 
Roads, by the person applying for the same. 

8. Every license to keep a tavern may, in the discretion of the License may- 
Commissioners of Roads authorized by law to grant the same, be ^^ renewed 
renewed yearly, upon the like recommendations, provisoes and penal- ^^^"^ ^' 
ties, and in the same manner, in every respect, as when such license 

was originally granted. And further: if any person who at the p i. f 
expiration of his or her license, shall neglect or refuse to renew the geiiin? with- 
same, in manner aforesaid, shall, notwithstanding, sell and retail out renewal, 
spirituous liquors, then such person shall be subject to the like pen- 
alties as for selling without license. Provided that no person once 
convicted, by any Court of competent jurisdiction in this State, ofNottobegran- 
a violation of any law now of force, or hereafter passed, respecting ^^"^ *9 those 
the traffic in spirituous liquors, or the unlawful traffic with slaves retailino- or 
and free persons of color, or of any of the provisions of this Act, traffic with ne- 
shall ever thereafter receive a license to keep a tavern, or to retail groes. 
spirituous liquors in any manner, place or quantity. 

9. That if any tavern keeper shall give credit to any person or ^ 
persons, for spirituous liquors, he, she or they, so trusting or giving , "(/"^pn V " 
credit to any person or persons, as aforesaid, shall lose his debt, and spirits, 
be forever disabled from sueing for and recovering the same, or any 

part thereof. And any note, bill, bond or other security, which ]\rotes bonds 
may be given for any spirituous liquors, sold or drank in or at his &c. for spirits, 
or her house, shall be void ; and if any tavern keeper shall sue for void, 
any such debt, the person or persons sued shall and may plead this 
Act in bar thereof. 

10. That the recognizance required to be given by the third sec- Recog;nizance 
tlon of this Act, shall be filed in the office of the Clerk of the Court ^° be deposit- 
of General Sessions, for the district in which said recognizance was^ wi i c er . 
taken, and in case of the breach of the condition thereof, it shall be 

lawful, in addition to the penalties now'imposed by law in such casea, 


for any persoo to file an affidavit with the Clerk of the Court of 
On breach General Sessions, in the district where such recognizance was given, 
clerk to issue stating the breach, and the Clerk of the said Court is hereby re- 
sci. fa. quired to issue a scirefacias on said recognizance, requiring the 
principal and his siireties to shew cause at the next Court of General 
Half of for- Sessions, why their recognizance should not be estreated. One-half 
leiture to in- ^^^ amount for which such recognizance shall be estreated, shall be 
given to the informer, and the other half to the use of the Board of 
Commissioners taking such recognizance. 
Retailers not 11. That it shall not be lawful for any person or persons, under a 
to sell under a license to retail spirituous liquors, to sell or cause to be sold, direct- 
quart, jy. Qj. infjii-ectly, in quantities less than one quart ; nor shall such re- 
JNor tobe ^^|^ license authorize the drinking of such linuor at the place where 
drank at the ,, , . c ^i i k \ -c 

place. sold, or on the premises or the vendor. And if any person or per- 
sons whomsoever, without a license first had and obtained according 
Penalty; to the provisions of this Act, shall sell any spirituous liquors in 
quantities less than one quart, or shall allow the drinking of such 
liquor at the place of sale, or on the premises of the vendor, he, she 
or they, so offending, shall be subject to all the penalties now im- 
posed by law for selling spirits without license. ^ 
_^ f Tvi o- ^^' '^h^* '^^ shall be the duty of every magistrate, on view, or eom- 
istrate onVew P^^^'^* ^^^ Oath, that any tavern keeper, retailer or other person, 
or informa- hath committed any act or thing contrary to and in violation of 
tion, to issue this Act, to cause the arrest, by warrant under his hand and seal, of 
v/arrant. such tavern keeper, retailer or other person so offending, and rerjuire, 
as is prescribed by law, security for his appearance at the next Court 
of General Sessions, then and there to answer to the matter of such 
complaint, and in default of security, to commit to jail, there to be 
To bind infor- ■'^^P^ until discharged by due course of law, and also bind the per- 
mer or witnes- SOUS making the complaint, or any others whose testimony may be 
ses. material, to appear at the same time, to give evidence on the part of 
the State against such offenders. 
This Act not 13. That nothing in this Act shall be taken, deemed or construed, 
to affect tlie ^.^ ^|t;er, change, or in any manner affect the rights, powers, and pri- 

T^owc rs oicor-. .*^ . o^r ' I 

porate towns vileges, vested by law in any city or town incorporate in this State, 
to grant licen- relative to the granting of tavern and retail licenses within their 
ses. respective limits ; such city or town corporate conforming to the 

Corporations directions, and being subject to the restrictions and provisions here- 
to conform to in contained and provided for the Commissioners of Roads in the 
the Act,and to gg^gj.j^l tlistfietg of this State : except that the recommendations for 
niendation of tavern license in such towns and cities, shall be signed by at least 
G freeholders, six respectable freeholders residing therein. 

Not to affect 14. That nothing in this Act contained shall be taken or con- 
penakies now strued in any manner to affect the penalties now imposed by law, for 

imposed, retailing spirituous liquors witnout license. 
Repeal of 23d 15 That the 23d section of an Act entitled, "An Act to estab- 
\Hl5 author- ^^^^ certain Roads, Bridges and Ferries," therein mentioned, passed 
izino- clerk to on the IGih day of December, 181.5, and which provide.? for the 
grant hcenses. granting of tavern and retail licenses during the recess of the 
Repealing Commissioners, and also all Acts and parts of Acts repugnant to 
clause. tiiis _^ct. be and the same is hereby repealed. 


Note 1. It is somewhat remarkable that the 23d section of the 
Act of 1815, should be expressly repealed without noticing the pro- 
viso of the 23d section of the Act of 1825, 9 Stat. 564, by which 
the same power is granted to the Clerk of the Board, as by the Act 
of 1815. 

The important alterations made by this Act in the existing laws 

1. That retailers are forbidden to sell any spiritous liquors, to be 
drank at the place of sale, in any quantity. 

2. The selling in any quantity less than a quart, is confined to 
tavern keepers expressly. 

3. There must accompany every application for a tavern license, 
a certificate, that the person applying is provided with the necessa- 
ry means of keeping a house for the accommodation of travellers. 

4. The price of a tavern license is fixed at 50 dollars, the same 
as a retailer's license. 

N. By the 39 sec. of the Act of 1810, 9 Stat. 453. Whereas where two or 
the Board of Commissioners of roads, in several parishes and dis- more boards, 
tricts in this State, are divided into two or more divisions, for the each to grant 
purpose of facilitating the business of such Commissioners. Be it "censes. 
further enacted, "that each division of such Commissioners shall 
have power to grant tavern licences in their respective divisions." 

Note 1. This, I presume, gives authority only within the territo- 
rial limits of the Board granting license. In the case of pedlers 
the license extends to the whole district or parish. See sec. 43. 

0. No license shall hereafter be granted for retailing spiritous 
liquors or keeping tavern by any Board of Commissioners of roads, 
or Corporation having power to grant such license, nor shall any 
permit be given by any Clerk of such Board or Corporation, unless 
the applicant shall have first taken and subscribed the following 
oath or affirmation, on his first application for a license after the 
passing of this Act. which oath shall be taken before a magistrate 
duly qualified to administer the same, and duly certified by him, 
and be by the applicant filed with the papers of the Board or Cor- 
poration as the case may be, to wit. I, A. B. do swear or aSirm that 
I will not, directly or indirectly, during the period for which I may 
receive a license to retail spiritous liquors or keep a tavern, sell, 
give, exchange, barter, or in any otherwise deliver, any spiritous li- 
quors to any slave or slaves, contrary to the true intent and mean- 
ing of the laws for preventing the selling, giving or delivering 
spiritous liquors to slaves, so help me God. And upon every sub- 
sequent application for such license, such person, in addition to the 
above oath or afiirmation, shall in like manner take and file the fol- 
lowing additional oath, "and I do further swear and afiirm, that I 
have not, directly or indirectly at any time since the taking out my 
last license, sold, given, exchanged or bartei'ed, or in any otherwise 
delivered any spiritous liquors to any slave, nor have I, directly or 
indirectly, traded, trafiicked or dealt with any slave, contrary to the 
true intent and meaning of the laws to prevent the selling, giving, % 


"bartering or delivering of spiritous liquors to slaves, and dealing, 
trading and trafficking with the same ; so help me God. 4 sec of 
Act 1834, 7 Stat. 469. 

P. As to who are tavern keepers, within the meaning of the Acts 
of the legis-lature, who are required to take cut license, see the case 
of the State vs. Chambless^ Cheves R. 220, wherein it is said that to 
keep a house for the entertainment of travellers or boarders requires 
no license. But if to such entertainment be added the vending of 
spiritous liquors, in small quantities, as is usually done at the bar 
of a tavern, then a license is necessary. The same doctrine is af- 
firmed by the supreme Court of Equity, in the case of Bonjier vs. 
Wclboni^ August T. 1849. See the case reported in 2 vol. of U. S. 
Law Mag. page 5. Any one may sell over 3 gallons, but to sell un- 
der that quantity, unless the vendor have a tavern license, he must 
take out a retailer's license, which will authorize the sale of any quan- 
tity from a quart to 3 gallons. 

Sec. 43. (Act of 1843, p. 262.) The sole and exclusive 

Sole power of power of granting licenses to hawkeis and pedlers, be and 

granting li- the same is hereby vested in the Confimissioners of roads in 

cense to liaw- their respective districts and parishes, a maioritv of whom 

kers and ped- . , . ' . , . . ', ■ , ■ ■ i " ^ 

lers. ^" then" respective districts and parishes, shall at any stated 

meeting and at no other time, hear all appHcaiions for such 
licenses to hawk and peddle, and shall grant or reject such 
applications for one year, as to them shall seem proper; pro- 
vided that such applicant sliall, before he receives such li- 

To give bond ceiise, pay into the hands of ihe said Commissioners for such 

district or parish, the sum of fifty dollars, and shall enter in- 

A citizen of ^^ bond as HOW provided by law, except that it be taken and 

the district 10 approved by the body granting the license (2) ; provided also, 

years and en- guch applicant shall have been a citizen of the district the 
mledtovote. i-m ii n .-ii^ . ..i 

preceding 10 years, and legally eniiiled to vote, at the time 

r. c A. of such application, for members of the General Assembly ; 
Confinedto , .' ' ,,.,'., , ,. n , ■',,' 

thedistrict or t^iici provided likewise, that such license so granted, shall 

parish where confer the privilege to hawk and peddle within the limits 

granted, and ^^-^Uj of the district or parish for which the body granting it 

10 the person ,•', , ,' ., iin i ij 

nanied. have themselves been appointed, and shall not be exlended 
in any manner to enable any other person to hawk and ped- 
dle, saving tiie person actually named in the license; provi- 
Except where ^^'^ ^'^*^ ^^^^ ^'^ ^"V district or parish where there now ex- 
there are two ists or may hereafter exist more than one Board of Commis- 
ormore boards sioners of roads, a license taken from any one of said Boards 
hom'one win ^'^^^' ^^ sufficient to authorize any person who has complied 
do." with the provisions of this Act, to hawk and peddle within 
said district or parish. (1) 

Note 1. Hawkers and peddlers are travelling traders, those who 
go from house to house or from village to village. Originally ped- 
lers transported their goods in packs carried on their backs, but the 
mode of transportation does not enter essentially into the character. 
Peddling is a vocation, au employment, which is not established by 


a single act of vendinsj goods, from a pack or cart, but continued 
acts are evidence of the asiumption of the character of a pedler. 

2. Formerly pedlers were licensed for the whole State, and took 
out license from the the Treasurer. Afterwards, they were required 
to take out from the Clerk, a license for each district wherein they 
traded. Before granting the license the Clerk was required to 
take a recognizance from the pedler in the sum of one thousand dol- 
lars for himself, and two securities in the sum of five hundred dol- 
lars each, with a condition that he will be of good behaviour, and 
especially refrain from all violations of the laws of the State against 
trading with negroes, against seditious and inflamatory publications 
or conduct, against gaming and against retailing of spiritous liquors, 
without license. 6 Stat 433. 

The penalty imposed for hawking and peddling without license, 
is one thousand dollars. 6 Stat. 529. 

Sec. 44. Each Board of Commissioners of Roads is enti-Copiesof Acts 
tied to a copy of the Acts of the Legislature annually. 30th tobefurnish- 
sec. of Act 1825. 9 Stat. 566. ^'^■ 

Sec. 45. Whereas the county Courts and Commissioners i.^ ,. . 

p II I 1 1 I r^-. I 1 r T-i 1 JNoapplication 

or roads have, by an Act passed the 2/th day ot Jbebruaryto Le^islaturs 

17SS, the power of granting roads. Be it therefore enacted, until after ap- 

that no petition shall hereafter be received by iheLesislature, plication to 

c i ^11-1 f 11 I- • Conmission- 

praymg tor the establishment oi any road, unless apphcation gj-s except. 

be first made to the Commissioners of roads, unless the same 

extend through more than one county or parish. Act 1797, 9 

Stat. 379. 

Note 1. This is a rule prescribed by the Legislature to itself I 
believe it has not been uniformly adhered to. I have inserted it 
because I do not see any thing expressly repealing it. 

Sec. 46. Where any public road shall be injured in con- . 
sequence of the breaking of any mill dam, or by letting off ^^^.^^Jng, 
water from any gate or gates, it shall be the duty of the mill dam. 
owner or owners of said mill-pond or dam, to repair such in- 
jury, when thereunto required by the Commissioner of roads 
in whose division the injury shall happen, within a reasona- 
ble time from such notice, and in default therecf the owner 
or owners of such mill dam or pond shall be fined at the dis- 
cretion of the Court, not exceeding one hundred dollars nor 
less than twenty. 20 sec. Act 1825. 9 Stat. 563. 

Note 1. At Common Law, the owner of the soil was bound to 
repair any injury which the public may sustain, in the use of a high- 
way, by any improvement or structure he may make on his own 
land. A mill dam is no exception to the general rule; the owner of 
which is liable for any injury to the highway by the accumulation of 
water, whether the excess be vented through a wasteway. or by rea- 
son of its insuflBciency, through a break in the dam. In both cases 
the injury is caused by the dam's obstructing the natural flow of 
the water and thereby giving it greater force. State v Knoits, 2 
Spears, 692. 


2. Where the owner of a mill clam, during a freshet, cut his dam 
for the purpose of saving it, and the public road was injured there- 
by, he was held guilty of a nuisance, on an indictment at common 
law, and it was no excuse to allege that if the dam had not been 
cut it would have broken in another place, and the road injured as 
much, if not more. (Id.) 

3. The defendant was bound to provide a sufficient wasteway by 
which the excess of water might have been discharged gradually 
and without injury. (Id.) 

It would seem from this case that the statute did not create the 
offence, it only provided a remedy by regulating the punishment. 

4. The public road passed over a dam across the rice field of the 
plaintiff, through which he had had a trunk for 20 years. The de- 
fendant, as Commissioner of the Road, cut the arms of the trunk 
in repairing an injury to the^ road above the trunk; held^X. That 
the owner of'the soil had a right to use his land in any way not in- 
consistent with the public easement. 2. That 20 years use of the 
trunk gave a right by prescription to the use of it, and the defend- 
ant was liable for any injury done to it unnecessarily. Baring v. 
Meyicard, 2 Spears, 553. 

Sec. 47. (Sec. 33 Act 1797, 9 Stat. 379.) It shall be the 
Solicitor to ^^^^Y ^^ ^^^^ Solicitor of the district, in which any part of the 
prosecute high I'oad may have been or shall be diverted from its origi- 
those whoal- nal course, unless by law, and he is hereby enjoined and re- 
tera ^S ^^^Y- q^^iied, on information of any two persons, to connnence a 
suit against any person or persons who may have altered or 
shall hereai'ler alter the road, without authority, in order to 
compel the j)arties offending, as soon as may be, to restore, 
at then' own expense, the highway in its course as establish- 
ed by law. 

Note 1. The word suit, imports a civil action. I presume the 
meaning to be, that on the information of two persons, it should be 
the duty of the Solicitor to institute such legal proceeding as was 
appropriate to effect the restoration of the road. 

Penalty on Sec. 48. (See. 9 Act 1785, 9 Stat. 294.) If any person or 
those who in- persons shall wilfully itijine or destroy any bridge or bridges 
■'biiiU overa^ ^"'^^ ^^ aforesaid, every such person or persons, on iiidict- 
river, &c. di'vi- nrient and conviction in the Court of General Sessions, in the 
dingtwodis- district or county court of the county where the ofience was 
tnctsorpar- committed, shall be subject to such fine and imprisonment as 
either of the said courts shall direct. 

Note 1. The bridges referred to are such as are built under the 
authority of the Commis.'-ioners, as set out in the 17th see. of the 
Act of 1825, which is copied from the 7th and 8th sections of the 
Act of 1785, except as to the persons to be assessed, and from the 
10th sec. of the Act of 1788, 9 Stat. 311. 

Sec. 49. (Sec. 10 of Act 1785, 9 Stat. 294.) For the pre- 


vention of injury to bridges by vessels, boats, and rafis 
passing under them, 

Be it enacted, That all vessels, boats or rafts passing 
under any bridge, shall, before they come to the same, diop Everyvessel 
anchor and drag through under the same ; and if any vessel, boat or rafi to 
boat or raft shall pass, or attempt to pass, any bridge, without arag through 
dragging as aforesaid, every such vessel, boat or raft, shall "brido-'e"^ 
forfeit the sum of ten guineas ; to be recovered by immediate 
seizure and detention of the said vessel, boat or raft, until Penalty, 
the payment of the said sum, by warrant from one of the 
Commissioners of the said bridge, or by the person or persons 
to whom the Commissioners might have leased the same, or 
by information being given of iliesame, to one of the judges 
of the Court of Common Pleas in Charleston, or in the dis- 
trict or county where the offence was committed ; the money, 
when so recovered, to be applied to the rebuilding or keeping 
in repair such bridge. 

Note 1. There is no subsequent Act repealing this clause. I pre- 
sume the summary mode of collecting the penally could not now be 
used. Perhaps it might be recovered under the Act of 1841, or, 
perhap.s, by indictment. 

Sec. 50. (Sec. 27 Act 1809, 9 Stat. 443.) It shall be the ^/^^ ^^^ ^^ 
duty of every person keeping a ferry, to keep in good order j^^., pranks in 
the banks of the river or creek at such ferry, and in case of order, 
neglect, shall be subject to a fine of three dollars, for each Fine for ne- 
and every day of such neglect; the same to be recovered gleet, 
before any magistrate liaving competent jurisdiction. 

Note 1. If the sum be over twenty dollars, the fine must be re- 
covered by action, under the Act of 1841. 

43d sec. Act 1821, 9 Stat. 515. All persons who may have „ 
charters for any ferry, where it is necessary that slips should keep slips 
be used, shall keep the same in repair at their private expense, and keep them 

in repair. 

50th sec. Act 1S24, 9 Stat. 544. Each and every ferry owner 
or keeper in this State shall provide and keep attached to each Ferryman to 
end of his ferry flat or flats, a 20od and sufficient apron, or not ^''^^^ aprons or 

, . , •' I 11 1 . 1 111- abuttmonts or 

having such aprons, shall keep at each and every landing inclined 
place, a good and sufficient abutment or inclined plane for planes, 
the same; and ftr default or neglect in so doing, that he 
be fined in a sum not exceeding ten dollars for every three 
days continuance of such default; to be recovered in any 
court having competent jurisdiction of the same— one-half to 
the use of the State, and the other half to the informer. 
I have inserted these clauses, becaus3 the ferry banks are 


a part of the public highway; and, for the same reason, I 
have inserted the following. 

1. If any ferryman or owner of any ferry or bridge, shall 
Penalty for de- demand and receive any greater sum of money for ferriage or 
manding more joU at such ferry or bridge, every such person shall forfeit and 

than IS ue. pc^y jj^e sum of twelve dollars ; to be recovered before any 
justice of the peace or quorum — one-half to the informer, and 
theoiher half to the Commissioners of ihe Roads within whose 
jurisdiction such fine shall be recovered. Sec 20 Act 1822, 9 
Slat. 520. 

2. Ii shall be the duty of the owners of all toll bridges, which 
Tollbrido-es have been, or may hereafter be, chartered by the Legislature, 
to have rail- to cause to be erected a good and sufficient railing, extending 

"^o- twenty feet from the ends of all such toll bridges, on each 
side of the road passing over such toll bridge. Sec. 17 Act 
1823, 9 Stat. 528. 

3. If any person or persons shall meet with unnecessary 
delay at any of the public ferries, toll-bridges or causeways, 
established by law, every such person or person may recover 
from the persons keeping such ferry, bridge or causeway, for 
every hour of such unnecessary delay, the sum of forty shil- 
lings ; to be recovered on application fiom the party aggrieved, 
by warrant and execution from any neighbouring magistrate. 
Sec. 16 of Act 1788, 9 Stat. 312. 

Sec. 51. (Act 1829, 9 Stat. 509.) 1. It shall be lawful for 
Commission- the Commissioners of the Roads, in the several islands afore- 
ers to allow said. (Jamcs Island, John's Island, Wadmalaw, Edisto, St. 
udnlsllnds' Helena, Lady's Island, and Hilton Head) to authorize and 
permit such persons as they, in their discretion, may think 
proper, to put up gates on the public roads that may pass 
through their grounds; such permission, in every case, to 
expire, unless renewed at the end of two years ; and provi- 
ded that no new gate be allowed, unless, in the judgment of 
the Commissioners, the same be necessary. 

2. If any person shall wilfully cut or destroy any gate, 

Penalty on which may be put up by the authority of the Commissioners 

those who cut in pursuance of this Act, whilst the same is kept in good 

or destroy order, such person shall be fined in the sum of twenty dol- 

g-ates, or leave , ',' ju ..rj-. ii 

them open, l^i's ; to be recovered by warrant oi distress, under the 
hands of any two of the Commissioners of Roads for said 
island or parish. And if any person shall wilfully leave open 
any gate as aforesaid, such person shall be liable to be fined 
ia the sum of twenty dollars; to be recovered as afortsaid. 


How fine^s, g^j., 5.3. (gee. 24 Act 1825, 9 Stat. 564.) All the fines, for- 

'^^ied.^^' fi^itiii'es and penalties imposed by this Act, as also all such 

sums of money as may arise from the granting of licenses as 

aforesaid, (viz. to retailers, taverns and billiard tables) or 


from the sale of est rays, shall belong to that Board of Com- 
missioners of Roads within whose limits the fine, penalty or 
forfeiture may be imposed, the license granted, or estray 
sold, and constitute a fund to be apphed by such Board to 
the repair of the roads, bridges or causeways, in such respec- 
tive district, parish or division as aforesaid. 


Sec. 53. The power which creates a public benefit, may, Le"islatiire 
in general, destroy it; and, therefore, the Legislature, by Act, maydiscon- 
may, at any time, discontinue a public road. tmue road, and 

\Ve have seen, also, that the Commissioners of the Roads ^issro^ners'of 
may discontinue a road, if there be no objection. roads. 

Although the statute of limitations will not run against a Stat, ofiimita- 
public right, and non-user merely will not destroy the char- "°" wsil not 

* rui-i-u ^ -c ■,. 1. .J J run against 

acter ot a public highway, yet ii it were obstructed and en- public- but 
closed for twenty years, I see no reason why a legal authori- prescription, 
ty to obstruct it might not be presumed. 

Sec. 54. It has been before stated, that a highway is a Right of own- 
mere easement, and that the right of the soil remains in theer of soil over 
landlord; so also dothe trees, and he may maintain trespass which road 
for the unlawful digging up the road or cutting down the 
trees. (Woolrych.) 


Sec. 55. Any thing placed in the highway which impedes Nuisance • 
the free use of it, is an obstruction, as any gate erected what, 
across it, a tree thrown into it, or a wagon left standing in it 
for a long time, or to dig ditches across it. 

The remedy is by indictment for a nuisance, but if any Remedy for 
person has received an injury from the obstruction, or sus- nuisance, but 
tained any pecuniary loss by it, he may recover damages, in P""'^^^? ^*^*J°" 
an action on the case. As if a man fall wiih his horse into ^^ j^ry^ 
a ditch dug in the highway, and sustains an injury, he may 
recover against the man who dug the ditch. See Woolrych 
on Ways, 2 vol. Law Lib. 53-4. 

But the injury must be direct and not merely consequential, 
unless speciil damage be alleged and proved. {Id.) Injury direct. 

We have before seen (ante, sec. 16) that no action will lie 
against the Commissioner of Roads, for an injury sustained 
by his neglect to keep a road or bridge in repair. 

If any nuisance be placed in a highway, it has always 
been held for law, that the public might abate it by removal, ^"'^''^^^^^^^y 
as breaking down hedges or gates across it. (Woolrych, 52.) 

Of necessity, one may unload his wagon in a street or 
road, but he has no right to continue his load or his wagon 
an unreasonable time in the street or road, to the hindrance 
and delay of other persons. Woolrych on Ways, 48. 


Only one sep- Sec. 56. By the 20th sec. of Act of 1800, there shall bpno 
for'eacl^dis- "^^''^ ^'^^'1 0116 Board of Commissioners of Roads in each dis- 
trict, county or ti'ict, in this State, where snch district is composed of but one 
parish. coiuity or parish ; and wliere tlieie are more than one county 
or parish in any disuict, the Commissioners of each county 
or parish sliall form a distinct and separate Board. 

Note 1. Since that time, several of the Boards have been divided. 
It appears from the Acts of the Legislature, and the Ilesolutions of 
' 1844 and 1847, that there are sis Boards for ICdgefield, one for each 

of the battalions of militia in that district. There are four for Ab- 
beville, one for each battalion. There are three for St. John's Colle- 
ton, one for each of the Islands of Edisto, Wadmalaw and John's. — 
There are three for Barnwell, one for the upper regiment, and two 
for the lower. There are two for Anderson, one for each regiment; 
two for Greenville, one for each regiment ; two for Marion, one on 
each side of Pee Dee River ; two lor Pickens, and two for Chester, 
one for each regiment in those districts ; one for each battalion ia 
Richland district; two for St. Bartholomew's, divided by aline run- 
ning from the mouth of Black Creek on Saltcatcher, direct to Island 
Creek bridge, thenee along Island Creek swamp, until it intercepts 
the head of Red Bank Creek, and along it to Edisto. There are 
two for Clarendon, a part of Sumter district. The division line is to 
be collected from three Acts of the Legislature. The Act of 1815, 
9 Stat. 481, describes it thus: " beginning at the county line nearest 
the plantation of Phineas Gib.son, deceased, thence to Michael Black- 
well's, thence to Capt. Dukes, thence to General Sumter's old well ou 
Potato Creek, thence to Cuddoe's Lake on Santee, near Thomas Bo- 
sher's place." The Act of 1819. (9 Stat. 500.) alters the line so aa 
to run from Captain Dukes's to Clarendon Court House, thence to the 
house of James A. Pearson inclusive, and thence down Wyboo Creek 
to Santee. The Act of 1820 (9 Stat. 502) directs the line to be run 
thus : " beginning at the county line, at or near the fork roads, thence 
direct to Benjamin P. West's saw mill, thence to Luke Bond's old 
place thence to William Dukes, deceased, and from thence to the 
Santee River, by the lines now established by law." For St George's, 
two boards, divided by a line run from the north side of the Cypress 
swamp, where the St. James's Parish line crosses it, so as to intersect 
the parish line of St. Paul's and St George's, near Givham's ferry. 
For Kingston, (part of Horry,) two boards, the dividing line begin- 
ning at Council Bluff on Waccamaw, running thence by a direct 
line to the Big Swamp bridge, leaving Mrs. Jane Sudlam's planta- 
tion in the upper division, and thence to the intersection of Dog 
Bluff and Little Pee Dee, leaving William Hux's plantation in the 
upper, and Isaac Shepperd and Rawlins Hartsfield in the lower di- 
vision. There are two for St. Luke's, divided by a direct line from 
Hazzard's bridge to the Great Swamp bridge ; two for Prince Wil- 
liam's, divided by the lines which separate the Whippy Swamp Beat 
Company from the lower Saltcatcher Company ; and two for St. Pe- 
ter's, the division line beginning at the parish line, at the lower end 
of Walnut Hill plantation, and running by Quince's Hill to the Fry- 
ing Pan on Savannah river. 


Two olber parishes, St. Paul's and St. John's Berkley, have the 
power to divide, but I do not know if it has been done. Only one 
board was appointed by the llesolution of 1847. 

For each of the other districts and parishes, there is but one 
Board, and one Board for Claremont and Salem counties, parts of 
Sumter district. 

Sec. 57. Within the last twenty years most of the Court 
Houses, ^la^'S and other towns have been incorporated, and jjo^^rerg.of 
the controT^ifi supervision of the roads within the corporate t^nT^llifcn. 
limits, has heen given to the municipal authorities. They cs. of ro%ds 
are invested wiih the powers of Commissioners of Roads in ^™"'^ ^'''""' 

, . , . ' . ^ , • 1 • uicipal corpor- 

workuig on roads, miposmg nnes, and grantmg hcenses to re- ations. 
taiiers, &c. In general the money arising from these sources, is 
expended by them in carrying into execution these corporate 
powers. Tlie only exception that I have noticed is, that by Town Coun- 
the 8th section of the Act of 1837, the Town Council of Dar- toli^'Jo^p^y'lg 
lington are required to pay over to the Commissioners of licenses to 
Roads, all monies arisina; from licenses to retailers, tavern Com'rs. 
keepers, or keepers of billiard tables. See 9 Stat. 608. 

Sec. 58. (Act 1723, 3 Stat. 224, sec. 11.) The Commission- 
ers for highways, for the several districts in this Province, qq„.j. ^^ 
shall have power, and they are hereby empowered, to agree hire persons to 
with any person or persons to make, mend and repair the make and re- 
several roads, causeways and bridges in their districts ; and 'j'^''/"^'^®', 
they are also hereby empowered, agreeable to the Act for' amount, 
making, mending and altering the high roads, to assess and 
levy on the inhabitants of the said parish, all such sum or 
sums of money as they shall agree for about or concerning 
the roads, paths, causeways and bridges as aforesaid ; and 
that no Conimissioner of highways shall alter, by msving, 
any highway, after the first day of January next. 

By the 10th section of the same Act, the power is given to 
hire slaves to work on Cuts and Creeks, and to assess the 
same on the inhabitants of the several divisions where the 
Cuts are. 

Note 1. I think it doubtful if the above be of force. I do not 
see any express repeal, but I think it contrary to what seems to be 
the meaning of the subsequent Acts, which seem to contemplate the 
repair and making of roads, by equal contributions of labor, but I 
have inserted it because others may think it of force. It seems to 
me to be the only mode by which the road duty can be equalized. 

Sec. 59. Besides the general Board of Commissioners of 
Roads and Bridges, there are some special Boards, which it is 
necessary I should notice, to make this manual complete. 




L That part of the road from Charleston to Georgetown, 
which crosses a marshy island in the Santee river, is called 
Lyncli's causay or causeway. The road was laid out in 
1737, and this part of it has been the subject of much and 
frequent legislation, which will be found in the Statutes at 
Large, 9 vol. p. 104, 120, 164, 243, 312, 366. •*t8^520. In 
1825, 9 Stat. 556, a special Act was passed in relation to this 
Causeway, and the Canal on the side of it, which had been 
cut under the direction of a former Board of Commissioners. 
The first section directs that the canal be kept open, and deem- 
ed a public canal; "and that should any person or persons 
whomsoever, obstruct, impede or injure the said canal, or 
shall attempt, at any time or in any manner, to impede or 
hinder or obstruct the passage thereof, every such peison or 
persons so offending, shall be subject and made liable to all 
and every penalty which have been or shall hereafter be im- 
posed or inflicted by any law or laws of this State, on such 
person or persons as shall impede, obstruct or injure any of 
the public canals, or any public road, or any canal which has 
been or shall be established by law; and the said penalty or 
penalties shall be recovered and applied in such manner 
as the law or laws of the State have directed, or shall here- 
after dn-ect." 

The second section appoints three persons Commissioners, 
with authority to fill up vacancies in the Board according to 
the road Acts, and declares that they, or a majority of them 
forming a Board, shall have full power to commence or insti- 
tute any proceeding, and to issue all and every order or pro- 
cess mentioned in the said Road Acts, or contemplated by 
them. And they shall have full power, under the said Acts, 
and by this Act, and full jurisdiction as a Board of Com- 
missioners is hereby given to them over the aforementioned 
canal and causeway, and over all and every road or roads, 
public or neighbourly^ in the parish of Prince George, Win- 
yaw, within ten miles of the said causeway. And they are 
hereby authorized and required, agreeably to the said road 
Acts, to keep in order and repair, the said canal, causeway 
and roads, by calling out all the male inhabitants and male 
slaves from the age of sixteen to fifty years, or such parts 
thereof, at any one time, as they shall judge proper, to work 
thereon and put the same in order. Provided, however, that 
the said inhabitants or slaves shall not be liable to be called 
out for a longer time, collectively, than twelve days in one 
year. And the said inhabitants and male slaves, hereby 
made liable to work on the said canal, causeway and roads, 
shall not be liable to work on any other canals, causeways 


or roads, whatever, within the said parish, or any other par- 
ish ; B.YH1 provided also, that no inhabitant or slave residing 
without the limits of ten miles from the said causeway, shall 
be compelled to work on any part of the aforementioned 
roads, leading to the said causeway. The third section abol- 
ishes the allotments formerly made, and directs when the 
hands are called out they shall work collectively, or "in 
such manner as shall be directed by the said Commissioners, 
or by their order or agents, overseers and superintendants. 
And the said Commissioners are hereby fully empowered and 
authorized, from time to time, to appoint agents or overseers 
or superintendants to execute any particular work or order, 
under this Act, and to do and perform the duty required, sub- 
ject to their order. x\nd any overseer, superiutendanl or 
agent, neglecting to perform the duty which shall be requir- 
ed by' the said Commissioners, shall be subject to such penal- 
ty or penalties, and the same to be applied as the Road Acts 
aforesaid shall or may inflict or direct." 

By the 6th section, the toll for passing through the canal, 
and periods for using the said canal, shall be fixed and regu- 
lated by the aforesaid Commissioners, or their successors in 
office, in such manner as they shall from time to time judge 
best both for individuals concerned therein, and for the 

By the 12th section of the Act of 1834^ 9 Stat. 600, the 
Board appointed by the above Act are declared subject to the 
operation of the ISth section of the Act of 1S25, which di- 
rects the manner in which assessments are to be made. (See 
ante, sec. 23.) 

By the 16th section of the Act of 1843, the Commission- 
ers of Lynch's causeway are authorized to lay a tax of one 
dollar per year, for each and every hand liable to work on 
said causeway, in lieu of the labor of said hands. Provided, 
that nothing herein contained shall aflect the liability of said 
hands to perform any other road duty now required of them, 
by law. 

Since the Act of 1843, which directs that the Commission- 
ers of Roads shall be appointed by joint resolution, Commis- 
sioners for Lynch's causeway have been regularly appointed. 


2, This bridge is on the road from Lenud's ferry on Santee, to 
Britten's ferry on Pee Dee, which road divides Williamsburgh 
from Prince George, Winyaw. How the bridge was former- 
ly repaired or built,' I do not knov/, but in 1820, by the 38th 
clause of the Road Act, certain Commissioners on the part 
of Georgetown, and certam others on the paj't of Williams- 


burgh, were appointed, " with power and authority to con- 
tract for, and have repaired, the bridge over Black Mingo 
creek, at the joint expense of the said districts ; and the said 
Commissioners are hereby invested with all the powers of Com- 
missioners of high roads, as far as relates to repairing and 
keeping in order said bridge." 

How this Board has been perpetuated, I have no means of 
ascertaining, but by the resolution appointing Commissioners 
of Roads in 1847, two Commissioners were appointed for 
Winyaw, but none for Williamsburgh. 

By the 30th sec. of the Road Act of 1849, Robert H. Wil- 
son, Thomas N. Britton and E. H. Miller, are appointed for 
the district of Williamsburgh, and Blackwell Haselden, Sam- 
uel M'Ginney and Henry F. Heriot, are appointed for the 
district of Georgetown, Commissioners of Black Mingo bridge^ 
with all the powers, privileges and liabilities of such Com- 
missioners, as now by law provided. 



To be furnished Commissioners . .. " 44 


Slight, made without notice " 5 (2-4) 


Lies from three Commissioners to the Board " 26 


May be made by Commissioners " 23 

" to be on general tax " 23 

" when to be made by general board, if more 

than one board " 23 

" for bridges on dividing stream " 23 

" to whom to be paid, and how collected " 23 (2) 

« for Abbeville, how paid over _. « 23 (D) 

« St. John's Colleton, how made « 23 (F) 

" notice of, to be given to non-residents " 23 (3) 

« for Bay Road, how made « 23 (L) 


How assessments to be made for, " 23 (L) 


Licenses for, by whom granted, — .— — « " 42 

Price of license " 42 

Penalty for setting up without license " 42 

Not to be kept within ten miles of Columbia " 42 



Commissioners may build " 23 

" may make assessments for " 23 

" may agree with any one to build — " 23 
Over dividing stream, how built and how assess- 
ment made for....... ^......... . " 23 

52 INDEX. 

BRIDGES (continued.) Sec. Note. 

Boats passing under, to drag through - " 49 

Penalty for not doing so " 49 

To have railing " 50 (2) 


Number of, for eacli district " 56 (1) 

Appeallies to, from three Commissioners .-- " 26 


For spirits, void 1 " 42 (9) 


How appointed, and his duty " 29 

To appoint overseer if Commissioner he absent.- " 29 (1) 


How appointed, and his duty " 29 

May grant license in recess (repealed) " 42 

To issue sci. fa. on breach of tavern license " 42 (10) 


Each Board may appoint " 23 (1) 

His liabilities, same as Tax Collector " 23 " 

For Edgefield, may be appointed " 23 (M) 


Have power to lay out roads, build bridges, and 

keep them in repair " 5 

But not if objected to " 5 

To give notice of new roads " 5 

How appointed formerly, and how now " 7 

Term of office of, three years " 7 

To meet twice a year " 9 

May appoint time and place of meeting " 10 

Majority to constitute Board " 9 

Exception in certain parishes " 9 (I) 

Fine for non-attendance of " 11 (1) 

Fine for not acting, " 12 

Board dissolved for not meeting, when " 13 

How new Board of, appointed " 13 

To divide roads among themselves " 16 

Each responsible for his division " 16 

Not liable to civil action " 16 (3)55 

To declare who shall work on each road " 16 

To call on persons for return of hands . - " 16 





/ ,/ 







INDEX. 53 

COMMISSIONERS OF ROADS (continued.) Sec. Note. 

May assess for default. $4 for each hand " 17 

Each in his division to call out hands " 18 

May exempt domestic servants " 18 

May appoint Warners '■ 19 41 

May appoint overseers " 19 

May prescribe tools " 20 

May use timber, &c. to i-epair road " 21 

May build bridges, and make assessments to pay " 23 

When several, all to meet to make assessments " 23 

May appoint their own collector " 23 (1) 

To post and number roads and put up pointers. _ " 25 

Their decision final, if within jurisdiction " 24 (3) 

May impose all fines under twenty dollars " 26 

May issue executions to sheriflP " 27 

Any three may impose fines " 26' 

Right of appeal to whole Board " 26 

May elect Clerk and Treasurer, or disunite them " 29 

May elect a Treasurer " 30 

To make report every Fall Term of Court '• 31 

To publish their report " 31 

May punish for contempt . " 33 

May discontinue a road •' 32 

Each to equalize the work " 34 

May parcel out the roads , " 37 

Not to provide dinners out of road funds " 39 

Special Commissioners to cease when road opened " 38 

May commute with Rail Road Company " 40 

Each to appoint warners to make returns " 41 

To grant license to Retailer, Taverns and Billiard 

Tables « 42 

To grant license to Hawkers and Pedlers " 43 

To allow gates on certain Islands " 51 

Entitled to copies of Acts " 44 

Formerly only one board for each district or parish " 56 
How many boards divided, number of each dis- 
trict " 56 

May hire the making and mending of roads " 58 


Commissioners may punish for " 33 


Powers of Commissioners granted to " 57 

54 INDEX. 


To be produced by Tavern-keepers -_-, " 42(2) 


Town Council to pay license money to Commission- 

sioners - " 57 


One may dedicate his land to the public ; if accept- 
ed or used becomes a road or street " 4 (8) 


Not to be provided out of road funds " 39 


"What distance hands may be called to work "14 

How computed " 14 


Others may be taken in lieu of " 18 


Fine for _ - « 19 (2) 


Road, an easement . - " 1 


Money arising from sale of, how applied " 29 


May be issued to sheriff by Board " 27 

Must express the amount " 26(2) 


"Who exempted from working on roads . " 15 (1,2,3,4.) 


Exempt from road duty " 15 


To keep slips and repair banks " 50 

To keep aprons and abutments - " 50 

Penalty on, for default, and for delay " 50 (3) 


On Commissioners for non-attendance _. " 11 

For not acting, and for default in duty " 12 

For not making return of hands " 17 

Recovery of fine barred by Statute Limitations. " 17 [1] 


FINES (eontiimed.) , Sec. Kote. 

For not working " 18 

On Warner for not acting ._- " 19 

Overseer for not acting, and for neglect of duty " 19 

For drunkenness " 19 [2] 

For not bringing tools " 20 

For obstructing use of timber, &.c " 21 

For stopping road, and forbidding use of it " 21 

For injury to bridge, or causeway, or road " 22 

How imposed, 26 — how applied " 52 

On white persons, how collected " 27 

On free negroes, mulattoea, &c. how collected " 28 

For destroying posts and pointers " 25 

For not making report and publishing it " 31 

Over twenty dollars, how collected . " 35 

For destroying shade trees " 36 

For providing dinners " 39 

For retailing, keeping Tavern or Billiard Table 

without license - " 42 

For injury to road by breaking mill dam " 46 

Injury to bridge over dividing stream " 48 

For destroying gates on certain Islands - "51 

On ferryman, and owner of ferry « " 50 


May be imprisoned for non-payment of fines .. " 28 


May be set up on certain Islands, and terms " 51 


To meet annually, where more than one in a dis- 
trict, and may make assessments " 23 

For St. John's Colleton, how constituted, and how 

to make assessments " 23 [F] 

For St. George's, abolished..- « 23 [E] 

For Pickens, united, and for what purposes " 23 [G] 

To have Treasurer for each Board " 30 [2] 


Who to grant license to, and terms " 43 

If two Boards, license from one will do " 43 


What are - « 4 

56 INDEX. 

HIGHWAYS (continued.) Sec. Note. 

How extinguished '• 53 

What are obstructions of, and how remedied " 54 

One injured hy obstruction, may sue the ob- 
structor " 55 

But no action will lie against Commissioners for 

neglect " 16 [3] 55 


Has power to open roads, " 5-8 

May take private property for making and re- 
pairing roads, " 5-8 

Not to open new road except on certificate and 

notice, " 5 

Not to receive petitions until application be first 

made to Commissioners, " 45 

Exception to this, " " 


Yfho liable to work on roads, " 14 

Commissioners liable to indictment, " 16 (3) 

But not to civil action, " " " 55 


To retailers, tavern and billiard tables, granted by 

Commissioners, i " 42 

To retailers, tavern and billiard tables, may be 

granted or refused, '•' " 

May be granted by Clerk in recess, (repealed,) " " 

Price of,.__ . " " 

No quantity of spirits under 3 gallons, to be sold 

without " " (2) 

To hawkers and pedlers, granted by Comm'rs " 43 

Where several boards, license by one will do for 

pedlers, " " 

Where several boards, each may grant tavern li- 
censes, &c. for its division, " 42 

Power to grant, given to corporations, , " 57 


Law in relation to " 59 [1] 


Exempt from working on road,__i " 15 


Exempt from working roads, " " 

INDEX. 57 

MILL DAM. Sec. Note. 

Injury done by breaking of, to road, and fine, — " 46 


To be put up by Commissioner, " 25 


Duty of, in relation to tavern keepers, " 42 (12) 


No execution to issue against, till notice, " 23 (3) 


Rigbt of way destroyed by " 4 (7) 


What, to be given by Commissioners to open new 

road, " 5 

To be given of application to Legislature for road, " 5 

To be given to work on roads, " 18 

How notice proved, " 5 (8) 

To make excuse for not working, " 18 (2) 

Must be personal, " 18 (1) 

To non-residents, of assessments, " 23 (3) 

Of assessments, to Tax Collector, " 23 

Of discontinuance of road -,__ " 32 


May be abated, and wbat is a nuisance " 55 

Kemedy for nuisance ; private action will lie for in- 
jury « " 

How punished " •' 


Return of hands to be made on " 16 

By retailers, &c. not to trade with slaves " 42 (0) 


How appointed, and their duty " \^ 

Penalty on, for not acting, and for neglect " " 

Not obliged to serve more than one year in three, 

except in certain parishes - _._ " " 


What are broad and private paths " 4 

How laid out and kept in repair ■ . " 4 

Private, a species of public road - " 4 

Private, are not individual roads " 4 [6j 

58 INDEX. 

PENALTY. Sec. Note. 

For selling spirits withou* license " 42 

For keeping billiard tables " 42 

For hawking and peddling " 43 

For injury to road by mill dam " 46 

For injury to bridge on dividing stream " 48 

For destroying gates on certain islands - " 51 

For retailing behind screen - " 42 

For not putting up pointers, and for injuring them " 25 

PEDDLEK. See hawkers and peddlers. 

POSTMASTERS, not exempt from working roads,.. « 15 [3] 


To be put up by Commissioners *• 25 

Penalty for not doing it " 25 

Penalty for destroying them - " 25 


Public road may exist by " 6 

May be extinguished by " 5 (7) 


General board of, united for certain things " 23 [G] 

To have two Treasurers _ « 30 [2] 


For injury to public and private ways " 4 [9] 


To be made by Commissioners to Court " 31 

To be read and filed with clerk " " 

To be printed _ _ " « 

Fine for not making and publishing . " " 


Of hands liable to work to be made . " 16 


Licenses to be granted to, and by whom " 42 

Who are retailers of spirituous liquors " 42 (P) 

To take oath not to trade with slaves " 42 [0] 

To enter into recognizance with security, " 42 

Not to retail clandestinely, and penalty, " 42 

To pay 50 dollars for license, " 42 

Not to sell to be drank at place, " 42 [11] 

Nor less than a quart,.-. . " 42 [11] 

INDEX. 59 


Betailers to enter into with security, * " 42 

Tavern keepers to enter into, " 42 [3] 

Sci. fa. to issue for breach of " 42 [10] 


Definition of " 1 

May exist without right of soil, " 2 

Is an easement, " 2 

The right of soil in owner, and he may maintain 

action for digging it up, &c " 54 

Difi"erent kinds of. _ " 3 

What are public, and what private " 3 

The same as path, " 4 

By whom formerly laid out. and how, " 5 

Commissioners have right under Act 1825, " 5 

Maybe established by use of 20 years, " 6 

Jurisdiction of, in Commissioners, " 16 

To be divided among Commissioners, " 16 

Each responsible for his own, " 16 

But not if board has discontinued road, " 16 [1] 

Who liable to work on.- -. " 14 

Width of road, _ « 24 

How measured, " 24 [2] 

To be posted and numbered, and pointers, " 25 

May be discontinued by Commissioners, on notice, " 32 

May be divided out among those liable to work,. - " 37 

New roads, when finished, to be under Comm'rs.. " 38 
Application for, to be made to Commissioners, 

otherwise not granted by Legislature, " 45 


General Board for, abolished, " 23- [E] 


12 Commissioners to form quorum, " 9 [1] 


12 members to form quorum of General Board,. - " 9 [1] 

How to make assessments for " 23 [F, H] 


To execute process issued by Commissioners, " 27 

His fees, costs and liabilities, " 27 

To pay over money, and penalty, .-, " 27 

60 INDEX. 

SOLICITOR. Sec. Note. 

To sue Commrssioners for not making return to 

Court, _ " 31 

To prosecute for diverting road, " 47 


None under 3 gallons to be sold -without license. _ " 42 (P) 
One may sell a quart, if the product of his farm, 

and to be carried away " 42 


Of public works and gate keepers, exempt,.-. " 14 


Will not bar a public right, " 53 

Will bar recovery of fine, _ " 17 [1] 


No GeneralBoard for " 23 [K] 


Who are tavern keepers, " 42 [P] 

No license to sell, to be drank at the place, except 

to tavern keepers, " 

Condition on which license to be granted, '• 

To enter into recognizance, and form of recogni- 
zance, " 

To keep 2 beds, and food for man and horse, " 

Not to retail except in the tavern house, " 

Price of license to, $50, " 

To be renewed yearly, " 

Penalty on, for selling without license, " 

No credit to be given, and bonds, &c. void, " 

For breach of recognizance, sci. fa. to issue, " 

Duty.of Magistrate in relation to " 

The Act of 1849 not to affect corporations, except 

to require certificate of 6 persons. " 

When several boards, each to grant license, " 

To take oath not to trade with slaves, " 


To make return to Commissioners of Tax, , " 

To collect and pay assessments, " 

Penalty for neglect, " 

To be furnished with assessments, 3 months before 

time of paying over, " 

Compensation and liabilities, " 




































INDEX. 61 

TIME. Sec. ybte. 

Hands liable to work 12 days, " IS [3] 


May be used by Commissioners, " 21 

Rail Timber exempt, if other can be had, " 21 


May be prescribed by Commissioners. " 20 

Penalty for not furnishing them, " 20 


To be appointed.- __ _ «. 20 

Disunited, _ __ « 29 

Treasurer to be elected, " 30 

To give bond, and his duties, " SO 

His compensation, '• 30 [2] 


Ornamental, cannot be used by Commissioners " 21 

Shade trees to be left " 36 

Penalty for destroying them " 36 


Twenty years' use evidence of presumption " 4 (1) 

Necessary to make a highway by dedication " 4 (8) 


In board, how supplied " 7 

When board dissolved, how filled " 13 


To drag under bridge " 49 

Penalty for not doing it " 49 


To be appointed in road divisions " 19 

Duty of Warners " 19 

Penalty for refusing to serve " 19 

Liable to serve only one year " 19 

To attend meeting of board " 19 

To warn persons to make return " 41 


Whatisaway . " 1 

May exist without ownership of soil, --..-., " 2 

62 INDEX. 


How fine on, collected . " 27 


And how measured - " 24 (2) 


Baring v. Hey ward, 2 Spears, 553 " 46 (4) 

Droyles a^s. State, 1 Bail. 311 « 16 (1) 

Carver •' « « 4 (8) 

Caldwell" « 2 Spears, 162 « 24 (2) 

Campbell v. Commissioners, Cheves, 210 " 15 (3) 

CaperstJ. Wilson, 3 McC. 170 " 5 (5) 

Commissioners v. Taylor, 2 Bay, 232 " 4 (7) 

" « Murray, 1 Rich. 335 Sec. 5 (3-7) 15 (4) 26 (3) 

« " Guerard, 1 Spears, 215 Sec. 23 (I) 35 [1[ 

« ads. Harrington, 2 McC. 400 « 15 (1) 

« " Jenkins, Cheves, 109 « 15(1,2) 

« « Keckley, 4 McC. 463 « 16 (1-4) 

« « Lindsay, 2 Bay, 38 « 8 

« « Luten, Cheves, 95 - " 15(2)16(5) 

« « Patrick, 4 McC. 541 « 8 

" " Price " 24 (3) 

« State, 4 McC. 5 « 5 (4) 

« Young, 2 N. & McC. 537 « 16 (3) 

Chappell ads. State, 1 Hill, 391 « 12 (1) 

Chovin a6?5. McKenzie, 1 McMul. 222 " 16 (3) 

Dawson ac?s. The State, Riley, 108 « 8 

Duncan " " 1 McC. 404 « 4 

Eaves V. Terry, 4 McC. 125 « 21 (2) 

Glover ?;. Simons, 4 McC. 67 « 4(5)26(2) 

Gregg u State, 2 Hill, 387 « 4 

Guerard ^;. State, 1 Spears, 215 « 23 (I) 

Harrington «;. Commissioners, 2 McC. 400 " 15 (1) 

Huffman a^s. The State, 1 Rich. 617 « 21 (4) 

Harvey ac^s. Witter, 1 McC. 67 « 2 

Hey ward V. Baring, 2 Spears, 553.--- " 46 (4) 

Jenkins v. Commissioners, Cheves, 109 " 15 (1,2) 

Keckley v. Commissioners, 4 McC. 463 " 16 (1-4) 

Knotts ac^s. State, 2 Spears, 692 « 46(1-2-3) 

Lindsay i;. Commissioners, 2 Bay, 38 " 8 

Luten V, Commissioner s, Cheves, 95 -- " 15 (2) 16 (5) 

INDEX. 63 

CASES REFERKED TO (continued.) Sec. Note. 

Maddoxv. Ware, 2Bail. 314.._ « 5 (2) 

McKenzie v. Chovin, 1 McMul. 222 " 16(3) 

Mobley a^s. State _ « 4(2) 

Murray ads. State, 1 Rich. 335.. _ Sec. 5 (3-7) 15 (4) 26 (3) 

Morris ac?s. Commissioners, 2 Rich. 320 " 17 (1) 

Odomacfs. State, 1 Spears, 263.-- « 23 (I) 

Prince V. Welbourn, 1 Rich. 58 " 4 (3) 

Price -y. Commissioners " 24 (3) 

Patrick t^. Commissioners. 4 McC. 541 " 8 

State V. Singleton, 2 N. & McC. 526 « 4 

« Rroyles, 1 Bail. 134 " 16 (1) 

« Duncan, 1 McC. 401 _ « 4 

« Dawson, Riley, 103 « 8 

« Chappell, 1 Hill, 391 « 12 

" Commissioners, 4 McC. 5 " 5 (4) 

« Caryer « 4 (8) 

« Caldwell, 2 Spears, 162 « 24 (2) 

« Huffman, 1 Rich. 617 « 21 (4) 

« Gregg, 2 Hill, 387 _ « 4 

« Knotts, 2 Spears, 692 _ « 46 (1-2-S) 

« Mobley.- « 4 (2) 

« Sartor, 2 Strob. 61 « 4 (1) 

Stark V. McGowen, 1 N. «fc McC. 387 _.. « 8 

Simons ads. Glover, 4 McC. 67 " 4(5)26(2) 

Terry flis. Eaves, 4 McC. 125 « 21 (2) 

Taylor V. Commissioners, 2 Bay, 282 " 4 (^7) 

Ware af/5. Maddox, 2 Bail. 314 « 5 (2) 

Wilson a^/s. Capers, 3 McC. 170 _ « 5 (5) 

Wilbourn of^s. Prince, 1 Rich. 58 « 4 (4) 

Witter t;. Harvey, 1 McC. 67 « 2 

Young V. Commissioners, 2 N. & McC. 537 . " 16 (3} 


1. Is a right of passage over another's land. It is a mere 
easement, wholly disconnected with any right to the soil. What is a pri- 
By the Civil Law, such rights were called servitudes, because '^^^^ '^^y- 
they were charges on one estate for the benefit of another. 

By reason of this, the owner of an estate is bound to permit 
certain acts in relation to his own estate for the benefit of 

2. A private right of way may arise or be created in three Hoxv many 
ways— 1. Grant. 2. Prescription. 3. Necessity. kinds. 

3. It is created by grant, when the owner of the estate, by By grant, 
deed, conveys the right. In all such cases, the terms of the 

grant must define and limit its extent. 

4. In matters of antiquity, where the evidences of rights 

have been lost or are incapable of proof, the law allows pre- Bypresump- 
sumptions to supply the place of muniments of title. It is '^''"• 
fair and reasonable to presume, that what has been done 
unobjected to for a long period of time, has been done right- 
fully. If one has held and occupied land as his own for a 
long time, exercising dominion over it as his own, the law 
presumes, from the long use and the acquiescence of others, 
that his possession was originally with a title. This period 
is now generally understood to be twenty years. So if one Use for 20 
has used a way over another's land for twenty years or years will give 
more, the law presumes that the owner of the soil had origi- ^^^ "^'^*^' 
nally granted it to him. In such case, as the law presumes 
the title from the use, the nature of the use must, therefore, 
determine the nature and extent of the right. 

5. If the use be such as is consistent with the title of the But not if use 
proprietor of the land, or if it be by the permission of the ^^ permissive, 
owner, then no title can arise, because, from the use, no in- 
ference of right can be drawn. 

6. It would seem that, by our law, all uninclosed lands Uninclosed 
are commons, upon which all persons may pasture their cat- woodlands are 
tie and travel at their pleasure. It follows from this, that ^^o™'^^"^- 
the use of a road through uninclosed lands will not confer a 

right of way, because such a use is not inconsistent with the 
rights of the owner. He had no right to object, and could ^^°^^?^'°^^°'^ 
maintain no action, because the travelling on such a road was them. 
no trespass. See McConico v. Sin^leton^ 2 McC. 244 ; Gar- 
rett V. McKee, \ Bail.341 ; Rowland v. Wolfe, 1 Bail. 56 ; 
Broughton v. Singleton, 2 N. & McC. 338. 

7. It was once supposed, that for the reason above stated, 
a right of way could not be presumed through uninclosed 




woodlands, but subsequent cases have, somewhat, modified 

the rule. In the case of jSims v. Davis, Cheves, 1, and of 

Hogg V. Gill, 1 McMul. 329, the Hmitation is thus stated. 

p .. h ""'^ right of way, by prescription, imphes an adverse use for 

use be adverse, twenty years, and the use must be such as indicates that the 

the right will user Was exercising a right in himself, uncontrollable by the 

accrue. owner of the soil over which it passes." The same principle 

is affirmed in the subsequent case of Nash v. Peden. The 

illustrations given in the cases are, where the claimant, or 

those from whom he derives his title, opened the road or 

worked on it, and kept it in repair from time to time, as men 

are accustomed to do with that to which they have a right. 

But the mere cutting of a tree out which had fallen across 

the road, would not be such use as would be evidence of 

title. Nash v. Peden. 

The use must bo adverse, that is, such acts must be done 
by the claimant, as shew he is exercising a right. Sims v. 
Davis and Nash v. Peden, ante. 
The use must 8. The presumption does not depend on the use merely, 
be unopposed i^^^j qjj ^jjy ^gg unopposed or acquiesced in by the owner. If 
y e owner. ^^^ claimant opened the road, or if he cut down trees and 
dug ditches for the purpose of draining or repairing the road, 
and the owner made no objection, this acquiescence would be 
evidence that the use was rightful ; and a road used under 
such circumstances, would be established as a private way. 
Thus, in Turnbidl v. Rivers, 3 McCord, 131, it is said, in 
order to presume a grant of a right of way, uninterrupted use, 
for at least twenty years, is necessary, and the identity of the 
road must be established, and an acquiescence shown on the 
part of the owner of the land ; but very slight deviations, it 
is apprehended, would not prevent the presumption. 

9. The use and acquiescence must be for twenty years at 
least, and if, during that time, the owner of the soil was an 
The effect of itifant, no presumption of a grant could arise until the infan- 
infancy. cy was at an end ; because nothing is presumed against an 
infant during his minority. No case has been decided by 
our courts, as to what shall be the effect of infancy in cases 
of presumption. In the case of Boykin v. Cantey, tried at 
Camden, in 1848, the question arose, whether an intervening 
infancy suspended the presumption ; my own opinion was, 
in conformity with the decisions in Massachusetts, that the 
period of infancy was to be deducted from the whole period 
of use, and if there was still remaining twenty years, during 
which the owners were adults, then the presumption would 
arise, otherwise not. But this case was settled by the par- 
ties, and no decision of the point was made by the Appeal 
The identity 10. The identity of the way must be established for the 
of the way whole period of twenty years. If, during that time, it was ob- _^ | 


structed by the owner, and diverted in its course by fences, must be estab- 
these acts would shew a use by permission — the obstructions '^^y'earr^^ 
would be inconsistent with the idea of adverse use. But when 
the title to the way is once perfected by twenty years adverse 
use, then it can only be defeated by some of those means by 
which a man loses his title, as by the statute of limitations, 
or a presumption of re-conveyance from twenty years ob- 
struction — as in Cuthbert v. Laiuton, 3 McC. 194. There 
the way had been uninterruptedly used from 1769 to 1800, 
but after that period had not been much used, and had been 
obstructed several times in different years, and some wide 
deviations had been made from its original course. The 
court held the right not destroyed by these obstructions and 
deviations. But if the title had only begun to accrue since 
1800, then such obstructions would defeat it. Thus, it will 
be seen that the effect of obstructions or deviations in the 
road, after the title has accrued, is different from the effect 
of the same before the right accrues. In the former, they 
go to defeat a title. In the latter, they shew that no title 

11. After a title has accrued, slight variations or obstructions Slight varia- 
will not defeat it, and it is presumed that such would not ^'°"^ ^^" 
prevent the title from accruing, if the owner of the soil, ^gr the title has 
when he made them, did any act by which he shewed his accrued, 
acquiescence m the fact that the right of way existed. As if, 

when he obstructed in one place, he made a good and suffi- 
cient way in another place. 

12. The soil, notwithstanding the servitude, still remains in The soil still 
the owner, and he may use it in any way which is not in- remains in the 
consistent with the easement ; and in the case of Capers v. owner. 

Wilson, 3 McCord, 170, it is said that the erection of a gate 
was not such an obstruction as would give a right of action. 
I think there would be no doubt of this where the way was 
one by necessity. 

13. As the use is the evidence of right, nothing passes beyond A right of 
what the party has used for twenty years. If the owner of way may ex- 
the soil has, during the time, kept up a gate across the way, '^^j^J^^ '^ed'^'^'^ 
the claimant has no right to object ; Barnwell v. McGrath, 1 

McMul. 174. His right is limited strictly to the line of the If impassable 
way he has used, and he has no right to vary it ; or in case^'i^ owner has 
it becomes impassable, to go on the adjoining lands, because ""j^^^j^-'J"-^^ 
he is bound to repair his own road, (3 Kent Com. 419.) Nor lands. 
has he any right to use the soil or timber from the adjoining 
land, unless he shews a prescriptive right to do so, or that he 
has used them for that purpose for twenty years. McKee v. 
Capers. 1 Strob. 164. 

14. In case a public road be out of repair or impassable, as by 
a flood, there is a temporary right of way over the adjoining 
land, but this applies only to highways. The owner of a 


private way has no such right, and the reason is, that he is 
bound to repair, and it may be his fault that his road is im- 
passable ; Douglas^ 745, ( Taylor v. Whitehead,) 3 Kent, 424, 
2d edition. 

15. There are some dicta that those who are entitled to a pri- 
vate way by necessity, may, in case his private way is de- 
stroyed, go on the adjoining land. (See 3 Kent Com. 424-5, 
Douglas, 749. This seems to be on the principle, that as the 
owner of the land is bound to furnish a convenient way, if 
that is destroyed, as by floods, the person entitled may go on 
the adjoining land ; but, I apprehend, no such right will exist 
if the way is rendered impassable for the want of repair. I 
do not suppose the owner of the soil is bound both to give 
the road and keep it in repair. 


15. The necessity from which a person derives a right of way 

of^ecessky^ is when One person sells to another land, enclosed on all 

sides by the seller's land, there the law imposes an obligation 

on the seller, to allow the buyer a way over his adjoining 

The necessity lands. Tumhull V. Rivers,3 McC. 131. This necessity is 
must not be j^qj j^gre inconvenience, for that may exist when the land 
nience. be surrounded by the lands of other persons as well as the 
seller's, and the idea would be preposterous, that if A buy 
land, surrounded by the land of others, he can, on the ground 
of necessity, compel the owner on that side most convenient 
to him to give him a road. If it could, then if he sold the 
same land to a third person, residing on another side, such 
person would have an equal right to a way on his side. If 
the right of way by necessity could arise in this manner, then 
it would change whenever the owner should change his resi- 
dence. Sergeant Williams, in his notes to 1 Sanders' Rep. 
323, note 6, expresses the opinion that the right of way, 
when claimed by necessity, is founded entirely upon grant, 
and derives its force and origin from it. The land would be 
useless if the purchaser has no ingress or egress to and from 
it; and therefore the law annexes as a condition of necessity 
that the purchaser shall have a right of way. This view 
has the sanction of Chancellor Kent, 3 Com. 425, as resting 
on a reasonable foundation and consistent with the general 
principles of law ; and of Lord Ellenborough, 4 Maule & 
Selwyn, 393. and a late work on Ways, by Woolrych, 2 Law 
Lib. 21. 

Every right of 17. It foUows from this, that every right of private way is 

way founded founded Oil contract, 1. Where there is a deed in fact. 2. 

Where a deed is presumed from \ise. 3. Where the road is 

granted as necessarily incident to a deed. There is no such 

thing as a road of necessity existing merely because the 


owner of land has no other way. If his land be surrounded 
by the land of A, B and C, which of them shall give him a 
road ? Shall he have a road to his mansion through A's 
land, to market through B's, and to the church through C's ? 
In the case of Lindsay v. Conunissioners, 2 Bay, 28, it is said 
to be a tacit condition of all grants that the public should 
appropriate so much as was necessary to establish public 
roads. I do not think the right of the public to appropriate 
private lands to public use need be put on any such ground. 
But I have heard it said, that as the sovereign power, which 
we now call the State, was once the owner of all the land, 
the condition was implied in every grant that the grantee 
should have a right of way to and from his land through the 
public domain which surrounded it. But this is liable to 
many objections, and would be found very difficult, if not im- 
possible, in practice. We have no decided case authorizing 
an>y such doctrine as applied to private ways. 

18. Even in the cases where a party is entitled to a right of 
way of necessity, it must be an absolute necessity, not a mere 
inconvenience. If he has any other way, the necessity does 
not exist. Thus, in TurnbiiU v. Rivers, before quoted, it is 
said the mere inconvenience of going to one's plantation by 
water is not such a necessity as will give a right of way, for 
necessity and not inconvenience gives the way. Also, if a 
person owns land lying between two roads, one on the east 
and the other on the west, and he shall sell the land on the 
west side to A. this would not give to A a right of way 
through the seller's lands to the road on the east, whatever 
might be the distance or difficulty of getting to that road. 
These are but the dicta of the Judge who delivered the judg- 
ment of the Court, but they are strikingly illustrative of the 
principle, that no right of way arises by implication from the 
grant but such as exists in necessity, and not mere inconve- 

19. The law does not imply in such cases a right of way such teller may 
as the purchaser may choose, but such as the seller may lay ^^^"^y' ^ 
off for him. The only limitation is that it be a convenient j^ j^g 
way. Capers v. Wilson, 3 McC. 170. venient. 

If the seller refuse to lay off stich way or obstruct it, he 
may be sued. (Id.) 

20. The right of way by necessity may be in the seller as well i-^^ right may 
as the buyer, as where A had three parcels of land, and there exist in the 
was a private way out of the first to the second, and through seller, 
that to the third, B purchased all these parcels and sold the 

two first to C, there was no way to the third but through the 
other two, and the Court adjudged that the way continued of 
necessity. The law in such case presumes a right of way 
reserved in the deed. 3 Kent Com. 422 ; 2 Lutw. R. 187 ; 5 ,^^ 

Taunton, 311. "^ 



21. If a right of way be granted to a person, like other rights 
to^afreehold merely personal, it ceases at his death ; but if, as is usual, it 

will pass with be appurtenant to a freehold, then it survives to the heir, and 
the land, passes with the freehold, under the word appurtenances, to 
a purchaser. 

22. A right of way will be extinguished by any of the means 
whereby it is acquired. 1, It may be released or surrendered 
to the owner of the freehold. 2. In general, mere non-user 

Adverse use for any length of time, unless it amounts to abandonment, 

will bar a -wiH not destroy a right of way ; but, where there is an ad- 

ngito way. ^g,.gg possession of 20 years, that will defeat the title, and an 

Maybe de- actual possession, as by enclosing the road, would, I appre- 

feated by Stat, hend, bar the right, if continued to the period of limitation 
' fixed by the statute. In Cuthhert v. Lawton it is said the 
right of way would be defeated by an adverse and continued 
obstruction for five years ; that was then the period of limi- 
tation for action to recover land. It is now ten years. — 
(Quere. As the action for disturbance of ways is case, would 
not the action be barred, as other actions on the case are, in 

Destroyed by four years?) 3. But the most usual way of extinguishment 
merger, jg ^y uniting in one person the right of way and the title to 
the land over which the way exists. This is called merger, 
and is on the principle that the greater absorbs the less. — 
When the same person becomes the owner of both, the very 
essence of a private way, viz : the right of passage over ano- 
ther's land, is destroyed. A man cannot be said to have a 
right of way over his own land ; so if a man have a right of 
way appurtenant to his freehold over the land of another, 
and he then purchase that land, and if afterwards the same 
becomes the property of a stranger, the way is gone forever. 
Woolrych, 70. In such case, if the owner had no other way 
from his close but through that which he had sold, he might 
have a new way by necessity, but the old right would be 

23. A testator who, for more than 20 years, had useda way to 
the public road through his own land, died in 1831, having 
devised his land to be equally divided among his sons C, W 
and B. Under a parol paitition W~ acquired that part on 
which the house stood, and sold to the plaintiff. C acquired 
the part next to the highway, through which the road ran. 
He made a lane and sold to defendant, who permitted the 
lane to remain open for some time, but finally closed it up, 
for which an action was brought. It was held, 1. That 
vdiilst there was unity of possession in the testator, no right 
of way arose, on the principle above stated. 

2. That since the partition, the time had been too short to 
confer any title. Payne v. Williams, 2 Spears, 15. 


24. But this doctrine of merger by unity.of title is materially 
ditFerent when applied to ways by necessity. Where (he 
close over which a way exists by necessity becomes united 
with the close to which the way is appurtenant, this is rather 
a suspension than an extinguishment, and revives when the 
possession becomes disunited. Woolrych, 71. (See the cases 
referred to in Woolrych at 71.) 

25. A right of way by necessity ceases with the necessity. Right of way 
The defendant was possessed of four closes, and conveyed by necessity 
by feofment one of them to G. D. At the time of the feof- ^'^.e^^'Jgf;^^^^^^ 
ment, he had no other way to his other closes except through 

it. But by a subsequent purchase, he was enabled to ap- 
proach his own property without going along this way. It 
was decided that his way by necessity over another's land 
ceased, when he might have a way over his own. Holmes 
V. Goring, 2 Bingham, 76. 

26. The correctness of this doctrine is questioned by Wool- 
rych, who argues with plausability that the necessity arises out 
of the grant, and not out of any state of facts subsequent to it ; 
and the right is not, therefore, affected by any subsequent 
modifications of property. If the party had a right at the 
date of the grant, how can that right be taken away by any 
subsequent act? 

27. The remedy for any obstruction to the use of a private Remedy for 
way is by action on the case ; so also if one, bound to lay offinjuiy to way, 
a private way for a person entitled to one by necessity, refuse 

to do so, he may be sued on case. 

This compend is so concise that it is not thought necessary 
to add an index. The only motive for compiling it, was to 
impart some knowledge to the community at large on a sub- 
ject which is daily becoming one of great interest, and of 
which very little is known. 






One of tlie Judges of the Courts of I^atv and Errors of tlie said State^ 


Read before them, at their September Semi- Annual Meeting, 1848, at Spartanburg 
Court House — by them directed to be submitted to the Governor, with a 
request that he would lay it before the Legislature, at its approach- 
ing Session, November, 1848, and by him ordered to be 
published for the information of the Members. 




Governor and Commander-in-Chief in and over South Carolina. 
This work, passing through your hands to the Legislature of the 
State, may, I trust, be appropriately dedicated to you, as a slight 
testimonial of the friendship which, for more than thirty years, at 
the Bar, on the Bench, in your present high and dignified office, 
and in all the relations of life, has existed, and I hope ever will exist 
between us. 

Springfield, Oct. 3, 1848. 

To the State Agricultural Society of South Carolina .' 

The undersigned, charged with the preparation of a digest of the 
Law in relation to Negroes, (slave or free.) and directed to make 
such suggestions of amendment as to him may seem expedient, begs 
leave to submit the following as the result of an examination of the 
subject committed to him, so far as his time and opportunity allowed, 

Springfield^ August 14, 1848. 

£ S d £ 

Proclamation Money, l33, 6, 8, for 100 

s d s d 

Currency, 32, 8, for 4, 8 



^ oc/ 

r,r^ h 

' >> C 




7 7^ 

/I :. 



The Status of the Negro, his Rights and Disabilities. 

Section 1. The Act of 1740, sec. I, declares all negroes and 
Indians, (free Indians in amity with this Government, negroes, mu-p j^. iga 
lattoes and mestizoes, who now are free, excepted) to be slaves: — 7Siat. 397, 
the offspring to foliow the condition of the mother: and that such 
slaves are chattels personal. 

Sec. 2. Under this provision it has been nniformly held, that color 

The Stiite vs. 

is prima facie evidence, that the party bearing the color of a negro, Harden, (note,> 
mulatto or mestizo, is a slave: but the same prima facie result does Nfigonv^ whet- 
not follow from the Indian color. 304"^^' ^ ^^"^'^"' 

Sec. 3. Indians, and descendants of Indians are regarded as free 
Indians, in amity with this government, until the contrary be shown. „.,, _ 

' . , ■ . Miller vs. Daw- 

In the second proviso of sec. 1, of the Act of 1740, it is declared s"" &; Brown, 

XT Y 1 . . , , Dudley's Rep. 

that '" every negro, Indian, mulatto and mestizo is a slave unless 171. 
the contrary can be made to appear" — yet, in the same it is immedi-^onu decided in. 
ately thereafter provided— '• the Indians in amity with this govern- |-g^g'^''^^'°"' ''^"' 
ment, excepted, in which case the burden of proof shall lie on the ^L- 164. 
defendant," that is, on the person claiming the Indian plaintiff to be 
a slave- This latter clause of the proviso is now regarded as furnish- 
ing the rule. The race of slave Indians, or of Indians not in amity 
to this government, (the State,) is extinct, and hence the previous 
part of the proviso has no application. 

Sec. 4. The term negro is confined to slave Africans, (the ancient gj^'p^^g'^^^^r"'- 

Berbers) and their de.scendants. It does not embrace the free in-fP*^' others, 1 
■' ^ Con. Rep. by- 

habitants of Africa, such as the Egyptians, Moors, or the negro Mill. 194-5. 

, aj r 1 1 o The Slate vs 

Asiatics, such as the Lascars. Scott, 1 Bail. 27.3. 

State vs. Hayes, 

Sec. 5. Mulatto is the issue of the white and the negro. 1 Bail. 276. 

° The Slate vs. 

Sec. 6. When the mulatto cease.?, and a party bearing some Scott. 1 Bail. 274. 

. ' r J ^ -j-j^g State vs. • 

Slight taint orthe African blood, ranks as white, is a question for the Davis & Hanna, 

solution ol a Jury. state vs. Cantey, 

2 Hill, 015. 

6 , Negro Law of South Carolina. 

'j'!i.' Siate vy Sec. 7. Whenever the African tauit is so far removed, that upon 

Caiitcv, 2 Hill, . . . . ' 

015,61(3. John- mypection a party may be fairly pronounced to be white, and 

son ys. Bonn, 1 , , i , . , . . . . , . 

Spj-er's, 270-1. such has been his or her previous reception into society, and enjoy- 
V6. UieTa.x Col- ™6nt ofihe privileges usuaily enjoyed by white people, the Jury may 
sh'aw^s'Rkh'ii ^''^^^ ^"^^ regard the party as white. 

Tiie'siate vs ua- Sec. 8. No specific rulc, as to the quantity of negro blood which 
]3'aii*^50o'*"'Tiu- ^'*''^^ Compel a Jury to find one to be a mulatto, lias ever been adopted. 
WT vs. the Tax Between i and i- seems fairly to be debateable ground. When the 

Collector of Ma- . 

i-ion, decided in blood is reduced to, or below |-. the Jury ought always to find the 

<;harleston, Feb. , , ., .,.., , i , , • i , r^ • , t 

laii. party rchite. When the blood is \ or more African, the Jury must 

find the party a mulatto. 

Sec. 9 The question of color, and of course of caste,, arises in vari- 
Hayes, 1 Ha^ih ous Avays, and may in some cases be decided without the interven- 
vl'^Scoiriliai? *''"'^ "^"^ •'^"''y- As when a party is convicted and brought up for 
273. The State sentence, or a" witness on the stand obiected to as a free ne-gro, mulat- 

vs. Cnntey, 2 ' _ •> a ^ 

Hiii,Gi4. ■ to, or mestizo, in these cases, if the color be so obvious that tliere 

can be no mistake about it. the Judge may refuse to sentence, or may 

2d Sec 9th Art cxclude the witness ; still if the party against whose color the decision 

s*"! 191^' ^' ^ ™"y ^^ made, should claim to have the question tried by a Jury, it 

must, I apprehend, be so tried. 
1 Ba'ih^i%."'^° ' Sec. 10. There are three classes of cases, in which the question 
Boon^Tspeer's o^co'or, and of course, of caste, most commonly occurs. 1st. Prohibi- 
270-1. The Stale jioii against inferior Courts, or the Tax Collector. 2d. Obiections 

vs. Cantey,2HiU . = _ ' _ . -^ . 

614. Cromer vs. to Avitnesses offered to testifv in the Superior Courts. 3d. Actions 

Miller, N. p. De- „ , , „ , , . , , . .^ • , i • , 

cis. Charleston, 01 slander lor words charging the plaintili with being a m.ulatto. 

May, '47. 

Sec. 11. In the first class, free negroes, mulattoes and mestizoes 
The state vg. are liable to be tried for all oflfences, by a magistrate, and five free 

Scott, 1 Bail. ' -^ ^ ' 

296. holders, (except jn Charleston, where two magistrates must sit,) and 

of course, any person claiming to be white, (over whom, if that be 
true, they have no jurisdiction.) charged before fhem criminally, may 
object to their jurisdiction, and if they persist in trying him or her, 
may apply for, and on making good the allegation, is entitled to 
have the writ of prohibition. It seems if the party submits to have 
the q^uestion of jurisdiction tried by the Inferior Court, he will be 

Sec. 12. The writ of prohibition is generally granted, nisi, on 
a suggestion sworn to by the relator, by any Judge at Chambers, 
on notice being given to the Court claiming jurisdiction; but if the 
fact be uncoritroverted. or so plain as not to admit of doubt, that the 
relator is white, the Judge may at once grant an absolute prohibi- 
tion. Generally, however, an issue is ordered to be made up on 
granting the prohibition, nisi, in which the relator is plaintiff, and 
on the Jury finding the relator to be a free white person, the prohi- 

• bition is made absolute. 



Negro Law of South Carolina. 7 

Sec. 13. In this class, too, the Tax Collectors frequently isf?ue p'""?«'r-'r.i^f'"'- 

' • ^ •' Ifciur. :111s. Car- 

tax executions for capitation taxes, against persons whom they sup- '; i;- 1 >i Muh. 

pose to be free negroes, mulattoes, or mestizoes, (•• free persons of.!uiinson vs. 

color," as they are sometimes loosely called.) If the person or per-^'-o-"' vv'j'ili^e & 

sans against whom they be issued, be not liable to the tax, they mny, ".Xcfor ofKer^ 

on a suffgestion, move for, and have the writ of prohibition. ?!'?^''' 3 Rich'n, 

Sec. 14. In such cases, where, from the affidavits accompanying 
he suggeston, it appears that the relator or relators has or have been 
received in society as white, and has or have enjoyed the privileges 
of a white person, or of white people. I have uniformly made the 
order for prohibition to become absolute, if the Tax Collector did 
not within a given time, file his suggestions contesting the status of 
the relator or relators. This course has been adopted, because the 
Tax Collector has no jurisdiction over the person of the relator, and 
has no judicial authority whatever to decide the question of caste. 
His execution is predicated of an assumed fact. He is, therefore, 
bound to make that good, before he can collect the tax. This course 
has been found extremely convenient, as it has cut off an immense 
amount of litigation. For, generally, the Tax Collectors exercise a 
sound and honest discretion, in pursuing only those cases where 
there seems to be no room to doubt the degraded caste of the rela- 
tor or relators. 

Sec. 15. Where, however, there is to be a question as to the 
color of the relator or relators, the Court may in its discretion cast 
the burden of proof on the Tax Collector, or the relator. Generally, 
I think, it should be cast on the Tax Collector, as his execution is 
the first allegation of the color of the relator. As the issue may re- 
sult, the writ of prohibition is made absolute or dissolved. 

Sec. 16. In all the cases of the first class, the decision is conctu- gee Reporter's 
sive ; in all subsequent cases, civil or criminal. For the prohibi- f^j^ \° ' pj"^.' 
tion is in the nature of a criminal proceeding, operating in re?«, 0™°"®'^''^"^'^'"' 
and binds not only the parties, but also all the people of the Common- M'Coiium vs. 

•' ^ ' . . , Fitzsimons, 1 

wealth. So it seems, that any decision made in favor of the caste Rich'u, 2i52. 
of the relator, as white, may be given in evidence in his favor. 

Sec. 17. In the 2d class, the objection to the competency of the 
witness, makes the issue collateral, and it is tried instanter, without 
any formal issue being made up, and the finding is upon the record 
on trial. The verdict, in such a case, concludes nothing beyond the 
question of competency in that case. It, however, might be given 
in evidence for or against the witness, nnt as conclusive, but as a 
circumstance having weight in settling the question of status, in all 
other cases. 

CM loTioii 1 • -f ■ • iiT 1 r -, Cromer vs. Mil- 

bEC. 18. In the 3d class, where justification is pleaded and lound, ler, n. p. Decis. 
it would seem to forever conclude the Plaintiff from re-agitating the lair! ^^ °"'' ^^' 

8 Nkgro Law of South Carolina. 

question. But, Avhere the defence is as usual, that the Defendant 
h;id good reason to suspect and believe that the Plaintiff was, as 
he alleged, a mulatto, in such case, a finding of nominal damages 
sustains the defence, yet it concludes not the Plaintiff from after- 
wards averring and proving that he was white. 

Sec. 19. Free Indians and their descendants, unmixed by African 
The State exre-hlood, are entitled to all the privileges of white men, except that of 
MarshiiheiKime suflrage and office. The former, and of consequence the latter, has 
Au'iai',) ^vs/''the ^^6" ^6"'^<^^ to a pure Indian, living among the whites. The fore- 
Maiiafier.sofeiec- going principle resulting from the case cited in the margin, is, I am 

tiiiii for \ ork D » r r o o i j 

Dist. isiBail 215 persuaded, wrong. The term white, ("free white man,") used in 
our Constitution, is comparative merely: it was intended to be used 
in opposition to the colors resulting from the slave blood. The case 
should be reviewed, and I trust the decision Avill be reversed ; for 
the case in which it was made, will always condemn it. The relator, 
the Rev. John Mush, was an Indian of the Pawmunki tribe of In- 
dians, in Virginia ; he was a soldier of the Revolution, he had as 
such, taken the oath of allegiance. He was sent out as a Mission- 
ary to the Catawbas. He, however, did not reside among them ; 
he lived among the white inhabitants of York District, Avhere he 
had resided for many years. He was a man of unexceptionable 
character. Yet, strange to say, he was held not to be entitled to 
vote. If that decision be right, how long is the objection to prevail? 
When is the descendant of an Indian to be regarded as white? Is 
it. that he is not to be so regarded, until a jury shall find him to be 
white, on account of the great preponderance of the white blood? 
But the Indian blood, like that of the white, is the blood of free- 
dom ; there is nothing degrading in it, and hence, therefore, the 
Indian and his descendants may well claim to be white within the 
legal meaning of our Constitution. 

-,.,, ^ Sec. 20. A mestizo is the issue of a negro and an Indian, and is 

Miller vs. Daw- ... 

son and Brown, subject to all the disabilities of a free negro and mulatto. 

Dudley's Report, _^, i i f. ,. p n i 

174, 176. ai Pro- Sec. 21. i he burden of proof ot freedom rests upon the negro, 

vise of 1st Sec. , ,. ,■ i • ■ .. u r 

of the Act of mulatto, or mestizo, claiming to be free. 

7^sut.^393: ^^^' ^Ec. 22. Under the Act of 1740. 1st sec. 1st proviso, and the Act 
of 1799, it is provided, if aoy negro, mulatto, or mestizo shall claim 
his or her freedom, he may on application to the Clerk of the Court 
of Common Pleas of the District, have a guardian appointed, who is 
authorized to bring an action of trespass, in the nature of ravishment 
of ward, against any person claiming property in the said negro, mu- 
latto or mestizo, or having possession of the same; in which action, the 

Wesner ad S'^'^^ral issue may be pleaded, and the special circumstances given 

Guardian of Tom in evidence ; and upon a general or special verdict found, judgment 

Brister, l«t M'- , , , , . , . ^ ^ , J J o 

Mull., 135. shall be given accordmg to the very right ot the case, without any 

2d Faust, Sai. 

Negro Law or South Carolina. 9 

regard to defects in the prbceedirig, in form or substance. In such case, 
if the verdict be that the ward of the Phiintiti' is free, a special entry 
shall be Riade declaring him to be free — and the jury is authorized 
to assess damages which the Plaintiff's ward may have sustained, 
and the Court is directed to give judgment, and award execution for 
the damages and cost; but if judgment is given for the Defendant, 
then the Court is authorized to inflict corporal punishment on the 
ward of the Plaintiff, not extending to life or limb. Under the 2d 
sec. of the Act of 1740. it is provided that the Defendant in sucli 
action, shall enter into a recogni'zance with one or more sufficient p l jg^^ 
sureties to the Phiintiti". in such sum as the Court of Common Pleas 
may direct, conditioned to produce the ward of the Plaintiff, at all 
times when required by the Court, and that while the action or suit 
i« pending, he shall not be eloigned, abused or misused. 

Sec. 23. Under the 1st proviso, the action of trepass in the na- 
ture of ravishment of ward, is an action sounding altogether in 
damages. The finding for tlie Plaintiff, isaliogther of damages, which 
may be made up of the value of the services of the Plaintiff's ward, 
and recomi^ense ibr any abuse, or injury, which he may sustain. 
For such damages and the costs, the judgment is entered up, and 
execution issues. 

Sec. 24. Under the Act, the Court is authorized, on such finding lUce ads. Spcar 
for the Plaintiff, io make a special entry, that the ward of the Plani- H!ji.p'Rt.-'port,20. 
tiff is free. This entry ought to recite the action, the finding of the 
Jury, and then should follow the order of the Court, that the Plain- 
tiffs ward is I'ree, and til tt he be di charged from the service of the 
Defendant. This should be spread on the minutes of the Court. 
This entry is, it seems, evidence of the freedom of the PlaintitPs jijuoj sheers 
ward in all other cases, and against all other persons. It is only ^^"• 
conclusive, however, against the Defendant ; against all other per- 
sons, it is p7-i ma Jacie merely. Under the 2d sec, the proceeding 
is by petition, setting out the action brought to recover the freedom 
of the negro, the possession by the Defendant, with a prayer, that 
the Defendant enter into the recognizance required by law. If this 
order bedisobeyed.theDefendant may beattached foracontempt. until 
it be obeyed ; or it may be in analogy to the decision under the 
Trover Act, that the Sheriff might arrest the Defendant under the P"'''«,Tf.„Yp''- 

' . . " . . nun, 2d IIiII, 069. 

order, and keep him in custody until he entered into the recogniz- 
ance. I never knew the order made but once, and that was in the 
case of Spear and Galbreath, Guardians of Charles, vs. Rice, Harp. 
20. In that case, the order was complied with by the Defendant on 
notice of it. 

Sec. 25. The evidence of freedom is as various as the cases. 

Sec. 26. Proof that a negro has been suffered to live in a comma- stats vE.iiaiiitn, 

• . r n . . r- . I' n r^ ■\ 2fJ Spetrt , 150, 

nity for years as a freeman, is pn?;r6;/ac2p proof oi Irecdot;:. uiott.) 

10 Negro Law of South Carolina. 

Miner,AJm'r. of Sec. 27. If before the Act of 1820, a neoro was at [nr<re. without 

IJenaeU, vs. . , , r^ 

Reigne. etui, 2d. an owner, and actnio; as a freeman lor twenty years, the Court 

Hill, 592. The , , ' . -, . , J J ■: 

State vs. Hill, 2d woiild presume omnia esse rita acta, and every muniment necessary 
Speers, . ^^ give effect to freedom to have been proijcrly executed. 

Sec. 28. This rule applie.s also, wlien freedom has been begun to 

be enjoyed before liie Act of 1820, and the 20 years are completed 

Cooper's Justini- Sec. 29. Before the Act of 1800, (hereafter to be adverted to,) 

an Notes, 416 i • , i ■ i i i i , i-i i i 

ftiiiey vs. Beatty, any tiling which shewed that the owner had deliberately parted 
ijowers vs.New- with his property, and dissolved the viaciditiii suvltii, was enough 
man^2. M'Muil, ^^ establish freedom. 
??°"'l,^;^- -^f"- Sec. 30. The validity of freedom depend.s upon the law of the 

kius,2Hill, C. R. J \ I 

13, Rice ads. place where it begins. Hence, when slaves have beer, manumitted 

Spear and Gal- . , c^ , , r i ■ , • o, ■ • ,- i 7 11 

breath. Harper's in Other fetatcs, aiid are found in this iState, their ireedom liere, will 
depend on the validity of the manumission at the place whence they 

7 Stat. 442, 44.3. Sec. 31. By the 7th, 8th and 9th sections of the Act of 1800, it 
was provided, that emancipation could only take effect by deed ; that 
the owner intending to emancipate a slave, should, with the slave, 
appear before a Justice of the (iuorum. and Rve Freeholders of the 
vicinage, and upon oath, answer all such questions as they might 
ask touching the character and capability of the slave to gain a live- 
lihood in an honest way. And if upon such e.^anu'aation, it appeared 
to them the slave wae not of bad character, and was capable of gain- 
ing a livelihood in an honest way, they were directed to indorse a 
certificate upon the deed to that effect; and upon the said deed and 
certificate being recorded in the Clerk's office, within 6 months from 
the execution, the emancipation was declared to be legal and valid, 
otherwise, that it was void. The person emancipating was directed 
by the Sth section, to deliver to the slave a copy of the deed of 
emancipation, attested by the Clerk, within 10 days after such deed 
.shall Jiave been executed. 

Sec. 32. The person emancipating, neglecting or refusing to deli- 
ver such copy, was>, by the 9th section, declared to be liable to a fine 
of ^50, with costs, to be recovered by any one who sliall sue for the 

Sec. 33. It v^aa also provided by the 9th section, that a slave 
emancipated contrary to this Act, may be seized, and made property 
by any one. 

Sec. 31. It was held, for a long time, that when a will directed 
slaves to be free, or to be set free, that they were liable to seizure, 

TiitBail. 632,633. as illegally emancipated. But the cases of Lenoir vs. Sylvester, and 
Young vs. the same, put that matter right. In them, it was held, 
that a bequest of freedom was not void, under the Act of 1800 — that 
it could have no effect until the Executor assented— that when he did 

Negro Law of South Carolina. 11 

assent, it was his dnty to so assent as to give legal effect to the 
bequest. As legal owner, he could execute tiie deed, appear before 
the Magistrate and Freeholders, answer the questions, and do every 
act required by the law, and thus niaUe the emancipation legal. 

Sec. 35. A slave illegally emancipated, was free, as against the Linam vs. .lohu- 
rights of the owner, under tlie Act of 1800; he could only restore ua'~ 
himself to his rights by cap'ure. The Act of 1820. declares that no Monk vs. Jenk- 

1 .111 • II I < fi T-ii ei.-ii ■. iii-s, 2 Hill, C. R. 

slave shall be emancipated hut by Act or the Legislature. fetiU it 13. 7 gtat. 459. 
has been held, in Liiiara vs. Johnson, and many subsequent cases, 
that if a slave be in any other way emancipated, he may. under the 
provision of the Act of ISOO. be -seized as derelict. 

Sec. 36. The delivery of the deed of emancipation to the Clerk to Monk vs. Jenk- 

, , 1 • 1 1 I 1 I ■ ,-•11,-1- 1 i"S' 2 Hill, C. K. 

be recorded, is all the delivery necessary to give it legal ellect ; and 14-15. 

the delivery to the Clerk is equivalent to recording. 

Seg. 37 The Act of 1820, declaring that no slave should hereafter (-'line vs. Cald- 
1 ,lia'^,^-i • .1 well, 1 Hill, 423. 

be emancipateil, but by Acl of the Liegislature, introduced a new, g,j^,g ^g Sin-^ie- 

and. as I tliink, an unfortunate provision in our law. All laws unne- 1^""^,,^"!^ others, 

' _ Uudley's Rep. 

cessarily restraining the rights of owners are unwise. So far as may ~~^- 
be necessary to preserve ihe peace and good order of the community. Afi'J^,.' oVcar- 
they maybe properly restrained. Tlie Act of 1800 was of that kind. !Jf[.jfy'','j '^o^^'^ 
The Act of 1820. instead of regulating, cut off the power of emanci- The statevs. 

T-i Mr-. I -»i 1 I -i 11' 1 T •'ini'letarv and 

pation. Like all 01 its class, it has done harm instead ot good. It Rhume, Dud. 

has caused evasions without number. These have been successful, "~'^' 

by vesting the ownership in persons legally capable of holding it, 

and thus substantiaily conferring freedom, when it was legally de- 


Sec^ 38. So too. bequests or gifts, for the use of such slaves, were carmille vs 
supported under the rule, that whatever is given to the slave belongs ^^'j'^YJ^i'^jJuU 
to the master. 4-4. 

Sec. 39. Since the Act of 1820, if a negro be at large, and enjoy vinjard vs. Pas- 
freedom for twenty years, he or she is still a slave; as an Act of ^^''^'^'"^'~^""^" 
Emancipation passed by the Legislature, will not be presumed. 

Sec. 40. The Act of 1820. was plainly intended to restrain emanci- Frnzier \s. Fn- 
pation within the State; it was, therefore, held by the Court of Ap- 31.15." 
peals, that where a testator directed slaves to be sent out of the State, 
and there set free, such bequest was good. 

Sec. 41. In '41. the Legislature, by a sweeping Act, declared, 1st. 11 Stai. I5i, 
That any bequest, deed of trust, or conveyance, intended to take 
effect after the death of the owner, whereby the removal of any slave 
or slaves without the State, is secured or intended, with a view to 
the emancipation of such slave or slaves, shall be void — and the slave 
or slaves' assets, in the hands of any Executor or Administrator. 2d. 
That any gift of any slave or slaves, by deed, or otherwise, accompa- 
nied by a trust, secret or implied, that the donee shall remove such 
slaves from the Slate to be emancipated, shall be void, and directed 

12 , Negro L.vw of South Carolina. 

the donee to deliver up the slave or slaves, or accovint to the distri- 
butees, or next of kin, for their value. 3d. That any bequest, gift, or 
conveyance of any slave or slaves, with a trust or confidence, either 
secret or e.\pressed, that such slave or slaves shall be held in noninial 
servitude only, shall be void, and the donee is directed to deliver tlie 
slave or slaves, or to account for their value to the distributees, or 
next of kin. 4rh. That every devise or bequest to a slave or slaves, 
or to any person u])on a trust or confidence, secret or expressed, for 
the benefit of any slave or slaves, shall be void. 
Carmille vs. the Sec. 42. This Act, reversing the whole body of the law, which had 
mill" iciMcMuubeen settled by various decisions fron:» 1S30, can have no effect on any 
^^' deed, will, gift, or conveyance, made prior to its passage, 17th De^ 

cember, 1841. 

Sec. 43. This Act, it has been always said, was pas.'ied to control 
a rich gentleman in the disposition of his estate. Like everything of 
the kind, lie defeated it, and the expectations of his next of kin, bv 
devising his estate to one of kindred, to the exclusion of all the 

Sec. 44. INIy experience as a man. and a Judge, leads <nc to con- 
demn the Acts of 1S20 and 1841. They ought to be repealed, and 
the Act of 1800 restored. The State has nothing to fear from eman- 
cipation, regulated as that law directs it to be. Many a master 
knows that he has a slave or slaves, for whom he feels it to be his 
duty to provide. As the law now stands, that cannot be done. In a 
slave country, the good should be especially rewarded. Who are to 
judge of this, but the master? Give him the power of emancipation, 
vinder well regulated guards, and he can dispense the only reward, 
which either he, or his slave appreciates. In the present state of the 
world, it is especially our duty, and that of slave owners, to be just 
and merciful, and in all things to be ejxpptione majori. With well 
regulated and mercifully applied slave laws, we have nothing to fear 
fur ncsro slavery. Fanatics of our own. or foreign countries, will be 
in the condition of the viper biting the file. They, not us, will be the 
sufferers. Let me, however, assure my countrymen, and fellow-slave- 
holders, that unjust laws, or unmerciful management of slaves, fall 
upon us, and our institutions, with more withering effect than any- 
thing eisc!. I would see South Carolina, the kind mother, and mis- 
tress of all her people, free and slave. To all, extending justice and 
mercy. As against our enemies, I would say to her, be just, andfearnot. 
Her sons t'altered not on a foreign shore ; at home, they will die in 
tlie last trench, rather than her rights should be invaded or despoiled. 
Sec. 45. Free negroes, mulattoes, and mestizoes, are entitled to 
all the rigiits*of property, and protection in their persons and prop- 
erty, by action or indictment, which the white inhabitants of this 
State are entitled to. 

Nkgro Law of Soct;; Caromxa. .. 13 

(Sec. 46. They are legoJlj- sui jurirr'. (The Act of '22. h;i'.c!i!);i S, ~ S ;.t. -;w. 
requires every iiiiilc free negro, iibove the age of 15. to liave a guar- 
ch'an, w!io must be a respectable Ireeliohler oftlie District, who may 
be appointed by the Clerk.) Nolwitlistaiuling this j)rovi.-5i()n, tiie 
J'rec negro is still, as I liave said sui juri.s, when of and above tiie age 
of 21. The guardian is a mere protector of the negro, and a guaran- 
tor of liis good conduct to the public. 

Sec. 47. They may contract, and be contracted with. Their mar- Bowercvs. Xtw- 
riages with one another, and even with white people, are legal. — ni'^^'-'-d-M'^-^iiiiii 
They may purchafie. hold, and transmit, by descent, real estate. — 1\''''' f;"'","' "^ 

J '' t^ J : ■■ Mrs. ilarili-iig.ip, 

They can m-^rlgage. aliene. or device tlie same. They may sue. and •"'•'' ""^ '-s'lipa- 

.....;. . . •> J ■ tor ot riuevillf, 

be sued, without noticing their respective gUi!rdKin.s. rpimrini in tiie 

Sec. 48. They are entitled to protect tiieir persons by action, in- vs^Newnvin.'tM 

dictment, and the writ of Habeas Corpus, (except tliat the writ of I'hp's.Mie'vs.^ "' 

Habeas Corpus is denied to those who enter the State contrary to .Vi!."^*" 'Vro ^' 

the Act of 1835.) They cannot repel force by force; tjiat is. they 'l"'"" ^ «'« vs. 

' •' ' •' . . ' 'J Hill, Mem, IJO- 

cannot strike a white man. who may strike any o( them. loi. 

Sec. 49. It has, however, been held, in a case decided in the Court Sc'otr". i B:.ii -iM! 
of Appeals, and not reported, that insolence on the pan of a free ne- Js-i/Yisina.'a'ja, 
gro, would not excuse an Assault and Battery. From 1 1ml decision. I 
dissented, holding as in the Stale vs. Harden, 2d Speers (note) 155, 
•' That words of impertinence or insolence addressed by a free negro 
to a white man, would justify an Assault and Batfery." -'As a general 
rule, I should say, that whatever, in the opinion oi' the Jury, wouhl 
induce them, as reasonable men, to strike a free negro, should in all 
cases be regarded as a legal justification, in an indictment." 

Sec. 50. In addition to the common law, remedies, by action ofcs-.-it. Gr4. 
Assault and Battery, and False Imprisonment, and indictments for the 
same, the Act of '37 furnishes another guaranty for the protection of 
free negroes, mulattoes, or mestizoes, by declaring any one convic- 
ted of their forcible abduction, or assisting therein, to be liable to a 
fine not less than $1000, and imprisonment not less than 12 months. 

Sec. 51. Free negroes, mulattoes. and mestizoes, cannot be wit- vvhite v». 

nesses or jurors in the Superior Courts. They can be jurors no .^g^^''"'^' ^^'^^' 

Avhere. They cannot even be witnesses in Inferior Courts, with the <^"""i"!rvs. 

sino-le exception of a Magistrates and Freeholders Court, trymo-JOQ. isrii and 
T < . , • r ■■la- 1''"' sf <•. of Act 

slaves or Iree negroes, mulattoes or mestizoes, tor criminal onences, on740. p. l. too. 

and then without oath. This was however, not always the case, to 

the entire extent which I have stated. It was at one time held, that 

any person of color, if the issue of a free white woman, is entitled to The State va. 

... , u.. . u 1 ■., 1 V • r^ . I)ovvell,2 Brev. 

give evidence, and ought to be admitted as a witness, in our Courts, ue. 
This was predicated of a clear mistake of the civil law maxim of par- xhe S'aie vs it 
tus sequitur ventrem, and ol the provision in the 1st section of the ^'^°"- 'Ba'>273. 
Act of 1740, that the offspring should follow the condition of the mo-iiajs, i uaiKsrs. 
thcr, which only mean, that slavery or freedom should be the condi- 

11 Negro Law of South Carolina. 

tioii of t lie offspring, but where tlie words imilatto or mestizo are ever 
used iis de;sigii:\tiiig a class, they are to be interpreted by their com- 
mon acceptation, 
r. I,. 106-IG7. ^'^'^- 52. It i.s singular that the 13th and lilh sections of the Act 
" St t 101 40' "''l~i'^' directing who may be witnesses against slaves, free negroes, 
&c., shouhl have been confined to free Indians and slaves, who are to 
i)e examined without oath. From which it would seem, that tree 
negroes, mulattoes. &c.. might be examined in such cases, as at com- 
mon law, upon oath. But the practice under the Act has been uni- 
form, as I have before stated it. I think it a very unwise provision, 
and; of practice, to examine any witnesses in any court, or case, 
without the sanction of an oath. Negroes, (slaves or free) will I'eel 
the sanctions of an oath, with as much force as any of the ignorant 
classes of white people, in a Christian country. They ought, too. to 
be made to know, if they testify fHlselJ^ thcv are to be punished for 
it. by human laws. The course pursued on the trial of ne^groes, in 
the addu(;tion and obtaining testimony, leads to none of the certain- 
tics of truth. Falsehood is often the result, and innocence is thu.-i 
ofien sacrificed on the shrine of prejudice. 

Sec. 53. Free negroes, mulattoes, and mestizoes, may make all 
T;kiinv.s. Lopez, necessary affidavits on collateral matters, in cases in the Superior 

Ihini. Rep- 100. ^, ■ i • i .1 u ,- .• r * 

Courts, in which they may be parties, as on motions of postponement^ 
&c. So too. they may in such Court take the oaths under the Insolvent 
Debtor's or Prison Bounds Act, and under the Acts of Congress to ob- 
tain a pension. 

Sec. 54. Free negroes, mulattoes, and mestizoes, (except such aa 
Th'e"s a^e vs^"^" ^""^ proved to the satisfiiction of the Tax Collector, to be incapable 
Graliam.2iiHill. of making a livelihood.) are liable to a capitation tax, (fixed by 

4.57. 2d sec. Act ^ ' ,, 

of'45,iiSiaL343. each tax Act ;) they may make a return personally — or any mem 
ber of the family may make a return for tlie rest; or if one be 
sick, he or she may make such return by agent. They are liable to 
be double taxed tor not making a return of themselves. 

Aciyffiso5-p. 6. Sec. 55. This tax seems to have originated in 1805. The Act oi 

Act q'. 3.3, 2(1 . ^ = 

Bee. p. 4. The 1833 directs the issuing of executions against free negroes, mulat- 

Stalfc vs. Gra- . 

ham, 2ci Hill, toes and mestizoes, who may lail to pay the tax, and that under 
them, they may be sold for a term, not exceeding one year ; provide.-i, 
however, that they shall in no instance be sold for a longer term 
tlian may be necessary to pay the taxes due; but they cannot be 
sold under the double tax executions to be issued against them ibr 
not making returns of themselves. Such executions go against pro- 
iJdsec 9ih Art P^'''^y Tierely. The constitutionalits' of the provision for the sale of 
Con. s. c. fpgg negroes in payment of their taxes, is exceedingly questionable. 

Sec. 56. The terra ^'free person of color,'''' used in many of our 
Acts, since 1840. has given rise to many imperfect and improper no- 
tions. Its meaning is confirmed by the Act of 1740, and all proper 

Negho Law of South Caiiolina. 15 

constructions of our codfrnoir to negi-oss. vvdattce^^ ami mestizoes. In 
common parlance, it lias a modi wider signification. Jicnce iht danger 
of its use ; for all who iiave to execute the Acts of the Leyishitnre 
iire not learned lawyers, or Judges. The Legislature ouglit tu use 
the words of the Act of 1740. ''Free negroe.s, inulattocis and mesti- 
zoes," and then every one would have a cerUiin guide to undLr.-itand 
the words used. 

Sec. 57. The Act of '35. declares it to be unlawful for any free negro, Act of ip35- 
or person of color, to migrate into this State, or to be brougiit or in- jf' '"^'^' '^ ®"''- 
trodnced within its limits, by land or water. 

Sec. 58. Any free negro, or person of color, not being a seaman on 
Ijoard any vessel arriving in this State, violating tliis law, shall and may 
be ceized by any wiu'te person. or by the Slieriti'orConstable of the dis- 
trict, and carried before any Magistrate of the district, city or parish — 
who is authorized to bail or commit the said free negro — and to sum" 
mon three freeholders, and form a Court for the trial and examina- 
tion of the said free negro, or person of color, within six days after 
his arrest; and on conviction, order him to leave the Slate — and at 
the time oi' conviction, to commit him to jail, until he can leave the 
State, or to release him on bail, not longer than ]5 days. And. if 
after being bailed and ordered to leave the State, the tree negro or 
person of color, shall not leave within 15 days, or having left shall 
return, shall be arrested, and on conviction before a Court of one 
Magistrate and three fr.^ehohlers, he shall be liable to such corporal 
punishment as the court shall order; if after such punishment, the 
offender shall still remain in the State '-longer than the time al- 
lowed," (which is. I suppose, the time previously fixed, 15 days.) or 
shall return, upon proof and conviction before a court of one Magis- 
trate and three freeholders, the iree negro or person of color may be 
sold, and the proceeds appropriated, one half to the use of the State, 
the other half to the use of the informer. 

Sec. 59. If the free negro or person of color come into this State, sd sec. 7 Stat. 
on board any vessel, as a cook, steward, mariner, or in any other em-'*^^' 
ployment, the Sher-'lfof the district is to apprehend, and confine in jail, 
such free negro or person of color, until the vessel be hauled off 
from the wharf, and ready for sea. The Act provides, that on the 
apprehension of any free negro or person of color, on board any ves- 
sel, the Sheriff shall cause the Captain to enter into a recognizance 
with good and sufficient security, in the sum of $1000 for each free 
negro or person of color, who may be on board his said vessel, that 
he will comply with the requisitions of this Act, which are, that he 
will, when ready lor sea, carry away the said free negro or person 
of color, and pay the costs of his detension ; but if the Captain be 
unable or refuse so to do, he is to be required by the Sheriff to haul 
his vessel in the stream, 100 yards distance from the shore, and there 

emain until ready for sea. If this be not complied with, in 24 hours. 

.1(5 Nkcro Law of Suctu Carolina. 

the Ciiptciin is liable to be iiuiicteil, and on conviction, is to be fined 
not excL'tnli'.iu,' $1000, and imprisoned not exceeding 6 nionlhs. 

Si;c. GO. Wlienever any free nei^ro or person of color, shall be ap- 

•M sec. / blal. . " ' 

4/1. prehouded and committed for coming into this State by sea, it is 

the duty ot" the ShcriU' to call npon some Magistrate to warn tlie 
otfendKr, never again to enter the State, and at the time of giving 
such warning, the Magistrate is to enter the name of such free ne- 
gro or person of color, in a book to be kept by the Sherili' with a 
description of iiis person anil occupation, v.'hich book is evidence of 
th.e warning, and is to be depo.^ited in tlie Clerk's office, as a pub- 
lic record. If the offender shall not depart the State, in case the 
Captain shall refuse or neglect to carry him or her away, or having 
departed, shall ever again enter into the State, he or she is liable to 
be dealt with, and incur the forfeiture prescribed in the 1st sec. 

.""iMi sec. 7 Slat. Sec. 01 If any free negro or person of color, before tiic passage of 

the Act of '35, or since, has left, or shall leave the State, they are 

forever prohibited fi'om returning, under the penalty of the 1st sec. 

Skc. 62. The 8th sec. of the Act, except.s from its operation free 

8lli sec. 7 , . ' ' „ -^ 

473. negroes and persons ol color, coming into the State Ironi shipwreck, 

but declares them liable to iirrest and imprisonment, as provided in 
the 2d sec, and to incur all its penalties, if within thirty days they 
shall not leave the State. 

Sec. 63. The 9th see. excepts free negroes and persons of color, 
m sec. 7 S;at. ^.^j^^^ shall arrive as cooks, stewards or mariners, or in other employ- 
ment, in any vessel of the United States; or on board any national 
vessel of the navies of any of the European or other powers in 
amity with the United States, unless they shall be found on shore, 
after being warned by the Sheriff to keep on board their vessels. 
The Act does not extend to free American Indians, free Moors, or 
Lascars, or other colored subjects beyond the Cape of Goop Hope, 
who may arrive in any merchant vessel. 

Sec. 64. Free negroes, and free persons of color, (meaning of 
utii sec. 7 Stat, course inulattoes and mestizoes.) are prohibited, (unless they have 
a ticket from their guardian,) from carrying any fire arms, or other 
military or dangerous weapons, under pain of forfeiture, and being 
whipped at the discretion of a Magistrate and three freeholders. 
They cannot be employed as pioneers, though they may be subjected 
to milittiry fatigue duty. 

Sdc. 65. The first, second, third and fifth sections of the Act of 
'35, are to my mind, of so questionable policy, that I should be dis- 
3,1 paragrah 8th po^ed to repeal thein. They carry with them so many elements of 
ufs!'^""'' '"°"' discord vith our sister Slates, and foreign nations, that, unless they 
~;j^ '^''i^-^'^ "'■'■ were of paramount necessity, which I have never believed, wc 
chapmin vs. should at oiice Strike them out. I am afraid too, there arc many 

.Miller,2aSpeera ..,,.. , • , , • 

rag. grave constitutional objections to them, iti whole or in part. 

Negro Law of South Carolina. 17 


Slaves, their Civil Rights, Liabilities, and Disabilities. 

Sec. 1. In a previous part of this digest, I have had occasion in- 
'cidentally to state the meaning of the civil law maxim, ^'partus se- 
quitur ventrem,^^ and of the provision of the 1st section of the Act of 
1740, " the offspring to follow the condition of the mother." Both 
mean, that the offspring of a slave mother must also be a slave. 

Sec. 2. The maxim, as well as the provision of the Act, has a Eid ^n Id iJrev.' 
further meaning in relation to property. It determines to whom the ^/^'^^i^gfi' e^'^ 
issue belongs. The owner of the mother has the same right in her i^ep. (UeS.)6il. 
issue, born while she belongs to him, which he has in her. If for 
example, the person in possession is tenant for life, then such an one 
takes an estate for life in the issue. If there be a vested estate in 
remainder, or one which takes effect on the termination of the life 
estate, the remainder man is entitled to the issue, on the lulling in 
of the life estate, as he is entitled to the mother. If there be no Geiger vs. 

,1 111-.- 1 1 1 Brown, 4M'C. 

estate carved out beyond the lile estate, then as the mother reverts, 418. 
so also does the issue. 

Sec. 3. The estate of a tenant for life in slaves, engaged in mak- ^^ g^:*[ypg(^*r''°'^ 
insr a crop, if he die after the 1st of March, is continued by the Act ^"""",\f-',^Lr 

=' r^ ' J same,,l Bail. 645. 

of '89, until the crop be finished, or until the last day of December. 
in the year in which the tenant dies. 

Sec. 4. The issue of a white woman and a negro, is a mulatto J^^^i^j^^^^.^^v,;^" 
within the meaning of that term, and is subjected to all the disabili-TheStaie vs 

. Hayes, 1 Bail. 

ties of the degraded caste, into which his color thrusts him. The 275. 
r\i\e '' partus sequitur vejitrem^^ makes him a freeman. The result 
■of mingling the white and negro blood is to make him a mulatto, and 
that carries with it, the disqualifications heretofore pointed out. 

Sec. 5. The 1st section of the Act of 1740, declares slaves to be 
chattels personal. * 

Sec. 6. The first consequence legally resulting from this provision 
would have been without any Act of the Legislature, that the steal- 
ing of a slave, should be a larceny (grand or petit) at common lav/. 

Sec. 7. But in 1754, an Act was passed, which, by its first section, ^- l. ^5. 
made it a felony without the benefit of cleruy, to inveigle, steal a?zrf^,^-'"'^-ii;.,'^''"' 

•' ~j. ^ ) ataie vs. jYliIeK, 

carry away, er to hire, aid or counsel, any person or persons to invei-- '*"■ ^ M'C- 1- 

•' •" ' • ^ ■^. . The Siaie vs. 

gle, steal or carry away, any slave or slaves, or to aid any slave in whyie, et. ai. 2 

J *• p u ■ ^ 1 I ? . N &;M'C. 174. 

running away, or departmg irom his master's or employer's service. The state vs. 
Sec. 8. This law, beginning in our Colonial times, and made for B°^"5"y9 "' '^'^ 
us by our rulers, given to us by Great Britain, has remained ever The state vs 
since unchanged, and has been sternly enforced as a most valuable m'Mu11.'48.8 
safeguard to property. Yet public opinion was gradually inclining ^.ypeere/7ji°^' 
to the belief, that its provisions were too sanguinary, and that they Jp^j^u^j^'^'y^^^^.^ 
might be safely mitigated when the torrents of abuse poured upon the 2 Speers, 129. 

18 Nkgro Law of South Carolina. 

State, and the Judge presiding on the trial from abroad, and the 
free States of the Union, on account of the conviction of a worthless 
man. John L. Brown, for aiding a slave to run away and depart from 
her master's service, stopped the whole movement of mercy. It is now, 
however, due to ourselves, that this matter should be taken up. the 
law changed, and a punishment less than death be assigned for the 

Sec. 9. Slaves are in our law. treated as other personal chattels, 
so far as relates to questions of property, or liability to the payment 

F L. 379 ^^ debts, except that by the county court Act, (which in this respect 

is perhaps still of force.) slaves are exempted from levy when other 

P,L.420r property be shown; and also by the Act of '87, far recovering fines 

and forfeited recognizances, the sheriff is directed to sell under the 
executions to be issued, every other part of the personal estate, be- 
fore he shall sell any negro or negroes. 

Sec. 10. In consequence of this slight character which they bear 
in legal estimation, as compared with real estate, (which has itself, 
in our State, become of too easy disposition,) slaves are subjected to 
continual change — they are sold and given by their masters without 
writing; they are sold by administrators and executors, and by the 
sheriff, (and may even be sold by constables.) These public sales by 
administrators, executors or the sheriff, maybe for payment of debts 
or partition — they (slaves) are often sold under the order of the 
Ordinary, without any inquiry, whether it be necessary for payment 

P. L. 493. ' of debts or division. This continual change of the relation of mas- 
ter and slave, with the consequent rending of family ties among them, 
has induced me to think, that if by law, they were annexed to the 
freeholds of their owners, and when sold for partition among distri- 
butees, tenants in common, joint tenants and coparceners, they 
should be sold with the freehold, and not otherwise — it might be a 
wise and wholesome change of the law. Some provision, too, might 
be made, which would prevent, in a great degree, sales for debts. A 
debtor's lands and slaves, instead O'f being sold, might be sequestered 
until, like virmn vadium, they would pay all his debts in execution, 
by the annual profits. If this should be impossible on account of the 
amount of the indebtedness, then either court, law or equity, might 
be empowered to order the sale of the plantation and slaves together 
or separately; the slaves to be sold in families. 

Sec. 11. Although slaves, by the Act of 1740. are declared to be 
chattels personal, yet, they are also in our law, considered as per- 
sons with many rights, and liabilities, civil and criminal. 

Sec. 12. The right of protection, which would belong to a slave. 

dy, Dudley's as a human being, is by the law ol slavery, transterred to the master. 

vb.^c^ion!'^2tr" Sec. 13. A master may protect the person of his slave from in- 

BnU. 98,99. jury, by repelling force with force, or by action, and in some cases 
by indictment. 

Negro Law of South Carolina. 19 

Sec. 14. Any injury done to the person of his slave, he may re- Gaston vs. Mur- 
tlress by action of trespass, vi et arniis, without laying; the injury Helton vs. Cas- 

, , • • . . ' , . , , , ton, 2(1 Bail 95. 

done, with a per quod servitmm amisit. and this even though he may Tennentvs.nen- 
have hired the slave to another. Rep. 83. 

Sec. L5. By the Act of 1821, the murder of a slave is declared to Actsons2i,p. 
be a felony, without the benefit of clergy; and by the same Act, to 
kill any slave, on sudden heat and passion, subjects the offender, on 
conviction, to a fine not exceeding $500, and imprisonment not ex- 
ceeding 6 months. 

Sec. 16. To constitute the murder of a slave, no other ingredients The state vs. 
are necessary than such as enter into the offence of murder at com-2d^Hm,459! 
mon law. So the killing, on sudden heat .and passion, is the same ^.s '^I^^^^^'^ ^^/^ , 
manslaughter, and a finding by the iurv on an indictment for the mur- Kep. 432. 
•der of a slave, of a killing on sudden heat and passion, is good, and sub- Fleming, eieci- 

1 /T-i 1 -I ^ n^i . 'i'^ ^ f ded at Columbia, 

jects the oiiender to the punishment ot the act; or on an mdictment lor gpnng, 1848. 
ihe murder of a slave, if the verdict be guilty of manslaughter, it is 
^ood, and the offender is to receive judgment under the Act. 

Sec. 17. An attempt to kill and murder a slaveby shooting at him, Jj^^jfoHUUoS. 
was held to be a misdemeanor, and indictable as an assault with an 
-intent to kill and murder. This was a consequence of making it 
murder to kill a slave. 

Sec. 18. The Act of 1841 makes the unlawful whipping or beating n Stat. 155. 
of any slave, without sufficient provocation by word or act, a misde- 
meanor, and subjects the offender, on conviction, to imprisonment not 
■exceeding 6 months, and a fine not exceeding $500. 

Sec 19. This Act has received no judicial construction by our 
Court of Appeals. It has been several times presented to me on 
Circuit, and I have given, it construction. The terms " shall unlaw- 
J'ully whip or beat any slave not under his charge," " without reason- 
able provocation." seem to me convertible. For if tlie beating be 
excusable from reasonable provocation, it cannot be unlawful. So if 
the beating be either without provocation, or is so enormous, that the 
provocation can be no excuse, then it is unlawful. What is sulficient 
provocation by word or deed, is a question for the jury. The ques- 
tion is, whether as slave owners, and reasonable men. if they had 
been in the place of the defendant, they would have inflicted the 
•whipping or beating which the defendant did '? If they answer this 
question in the affirmative, then the defendant must be acquitted, 
■otherwise, convicted. 

Sec. 20. The Acts of 1821 and 1841, are eminently wise, just, and 
3iumane. They protect slaves, who dare not raise their own hands 
iin defence, against brutal violence. They teach men, who are whol- 
ly irresponsible in property, to keep their hands off the property of 
mother people. They have wiped away a shameful reproach upon us, 
tthat we were indifferent to the lives or persons of our slaves. They 

20 Negro Law of South Carolina. 

have had too, a most happy effect on slaves themselves. They know 

now. that tlie shiekl of the law is over them, and thus protected, the/ 

yield a more hearty obedience and effective service to their masters;- 

P. L. m. Sec. 21. By tiie last clause of the 37th section of the Act of 1 740; 

it is provided if any person shall wilfully cut out the tongue, put out 

the eye, castrate, or cruelly scald, burn, or deprive any slave of any 

limb, or member, or shall inflict any other cruel punishment, other 

than by whipping, or beating with a horse-whip, cowskin, switch, oT 

small stick, or by putting irons on, or confining or imprisoning suclf 

slave, every such person shall, for every such offence, forfeit the sum 

The state vs. of £100 current money, equal to |61 23-100. This provision it has' 

Wilson, chev. been held extends to any cruel beating of a slave. 

Rep. (So. Ca. ' ... 

Rep.) p. 168. Sec. 22. The provision is humane, but the punishment is too slight- 

for such scandalous offences. 

Sec. 23. To secure convictions under this part of the 37th sectioHj- 
and also where slaves were killed, it was provided, in the 39th sec-- 
tion, that if a slave suffered in life or limb, or was cruelly beaten 09" 

P. L. 173. abused, where no white person was present, or being present, shall 

neglect or refuse to give evidence — in every such case the owner of 
person having the care and management of the slave, and in whose' 
possession or power the slave shall be, shall be adjudged guilty, un- 
less he can make the contrary appear by good and sufficient evi- 
dence, or shall, hy his own oath, clear and exculpate himself. This 

Rains'^Sd^M c Provision has been considered as applicable to trials under the Act of 

633. 1821, and a prisoner charged with the murder of a slave, has been 

allowed to exculpate himself. 

Sec. 24. This is the greatest temptation ever presented to perjury, 
and the Legislature ought to speedily remove it. 

Sec. 25. The 38th section of the Act of 1740, requires the owners 
of slaves to provide them with sufficient clothing, covering and food, 
and if they should fail to do so, the owners respectively are declared 

p. L. l7o j^ j^g liable to be informed against to the next nearest Justice of the 

' Stat. 411. 1-1111 

Peace, (Magistrate now,) who is authorized to hear and determine 
the complaint; and if found to be true, or in the absenee of proof, if 
the owner will not exculpate himself by his own oath, the magistrate 
may make such order as will give relief, and may set a fine not ex- 
ceeding £20, current money, equal to $13 66-100, on the owner, to be 
levied by warrant of distress and sale of the offender's goods. 

Sec. 26. This provision, it must be remarked, (leaving oot the 
exculpatory part) is a very wise, and humane one, except that the 
penalty is entirely too slight. I regret to say, that there is in siteh a 
State as ours, great occasion for the enforcement of such a law, ac- 
companied hy severe penalties. It migiit be proper, that this matter 
should by the direction of an Act, hereafter to be passed, be given in 
charge to the GJrand Jur}-. at each and every term, and they be 

Negro Lav»* of South Carolkva. 21: 

eolemnly enjoined to enquire of ail violations of duty, on the part of 
masters, owners, or employers of slaves, in furnisliing tliem vviili 
sufficiei t clothing, covering, and food ; and the law niiglit also ilirect- 
that every one by them reported, should be ordered instantly to be 

Sec. 27. It is the settled law of this State, that an owner cannot Fairchiid vs. 
abandon a slave needing either medical treatment, care, food or rai- Re,,' fog. 
ment. If he does, he will be liable to any one who may furnish the 

City Council vs.- 

same. In Fairchiid vs. Bell, that good man, and great Judge, Wilds, cohen, '.iii 
whose early death. South Carolina had good cause to deplore, said, '^*"*' 
in the noble language of a Christian and patriot, "the law would 
infer a contract against the evidence of the fact, to compel a cruel and 
capricious individual to discharge that duty, which he ought to have 
performed voluntarily. For as the master is bound by the most 
solemn obligation to protect his slave from suffering, he is bound by 
the same obligation to defray the expenses or services of another to 
preserve the life of his slave, or to relieve the slave from pain and dan- 
ger. The slave lives for his masler^s service. His time, his labor, his 
comforts, are all at his master^ s disposal. The duty of humane treat- 
ment and of medical assistance, (when clearly necessary) ought not 
to be withholden. 

Sec. 28. By the 22nd section of the Act of 1740, slaves are protec- ^-y, 'l^/ 

•' ) r 7 Stat. 404 

ted from labor on the Sabbath day. The violation of the law in this 
respect subjects the offender to a fine of £b current money, equal to 
$3 7-100, Ibr every slave so worked. 

Sec. 29. By the 44th section of the same Act. owners or other per-?- L- 174. 

•^ ^ 1 Siat. 413. 

sons having the care and management of slaves, are prohibited from 
working or puttmg the said slaves to work tor more than 15 hours 
from the 25th March to 25th September, and 14 hours from 25th 
September to 25th March, under a penalty of £20 current money, 
equal to $13 66-100 for every offence. 

Sec. 30. The time limited and allowed for labor in this section is too 
much. Few masters now demand more than 12 hours labor from 1st 
March to 1st October, and 10 hours from the 1st October to 1st March. 
This, after allowing suitable intervals for eating and rest, is about as 
much as humane prudent masters will demand. 

Sec. 31. A slave may, by the consent of his master, acquire and Hobsonvs. Per- 
hold personal property. All, thus acquired, is regarded in law as that JJarmiiu' vk^'ihe 

nfthpma«!tpr Adtnr. of Car- 

ol me master. miiie, 2 McMuU 

Sec. 32. The only exception is under the 34th section of the Act 470--471 
of 1740, which makes goods acquired by tratRc and barter for the par- The state vs. 

..• 1 J !• u i2x r I 1 V » „• Mazyck,3dRich. 

ticular and peculiar benent ot such slave, boats, canoes, or penaugers 091 

in the possession of a slave, as his own, and for his own use ; horses, j^y^l^od Rfcii.*' 

mares, neat cattle, sheep or goats, kept, raised or bred for the use of 2^''- 

any slave, liable to be seized by any one, and forfeited by the judg- 

22 Negro Law of South Casolinx. 


ent of any Justice (magistrate) before whom they may be brotlght/ 
nrS''""uJiV.- ^^*^' ^^' U"'^*^'' ^'^^-^ section, it has been lately held, that no one 
fiprins, 1^4-'. lean enter on the plantation of the master to make such seizure. 

Law Reporter, ^ 

new B^rif s. I'^o. Sec. 34. A seizure can therefore Only be made when a slave ie 

Clarke ads. ,• i • • r , , ■, ■ , ■ ■, ^ 

Bkike. 3d Mcc. Icunu,. as owner, m possession oi the contraband articles, outside of 
■ his muster's plantation. 

•Sec. 35. This qualification may render the law harmless. Still it 
ought to be repealed. The reasons which led to its enactment have 
all passed away. It is only resorted to, noxc, to gratify the worst 
passions of our nature. The right of \he master, to provide as com- 
fortably as he pleases for his slave, could not be. and ought not to be 
abridged in the present state of public opinion. The law may very ' 
well compel a master to I'nrnish his slave with proper, necessary-y 
wholesome, and abundant raiment and food ; but certainly no legis- 
lator now. would venture to say to a master, you shall not allow your 
slave to have a canoe to fish with, or to carry vegetables to market 
or that he should not be allowed to have a horse to attend to his 
duties as a stock-minder in the swamps, savannas, and pine forests ol' 
the lower part of the State, or that a family of slaves should not have 
a cow to furnish them with milk, or a hog to make for them meat, 
beyond their usual allowance. All these are matters between the 
master and the slave, in which neither the public nor any prying, 
meddling, mischievous neighbor, has any thing to do. Experience 
and observation fully satisfy me that the first law of slavery is that 
of kindness I'rom the master to the slave. With that properly incul- 
cated, enforced by law. and judiciously applied, slavery becomes a 

•2 Moultrie's „ ., , . . . , , „ i i -i i 

-Mem. 355-356. lankly relation, next in its attachments to that ot parent and child. — 
It leads to instances of devotion on the part of the slave, which would 
do honor to the heroism of Rome herself,* With such feelings on 
our plantations, what have we to fear from fanaticism? Our slaves 
would be our sentinels to watch over us; our defenders to protect our 
firesides from those prowling harpies, who preach freedom, and steal 
slaves from their happy homes. 

Sec. 36. A slave cannot contract, and be contracted with. This 
principle was broadly laid down by the Constitutional Court, in a 

■CJrecg vs. Thorn- case in which a note was given by the defendant to the plaintiff ^s 

!Son.2d Con. Rep. , , , , ,"■ -m • > ^- •.. r-t _ 

<Miii33i.) slave by name, and the plaintifi brought the action upon it, l<rom 

this decision, Judge Cheves dissented, upon, I presume, the ground 
that the master hud the right to affirm the contract, and make it his 
own, and consider it for his own benefit. In it, I think, he was right, on 

• In 1812, February, Professor Chas. Dewar Simtnons on his return to Columbia from 
Charleston, found the Haugliabook Swamp entirely over the road. In attempting to cross 
on horseback, he was washed otf the road and separated from his horse. He first succeeded m 
reachinga tree, then constructed a raft of rails tied with his comfort. Three times his slave 
Marcus, swam in to his rescue. His master told him he could not help him, save himself; but 
he persisted until both perished together. 

Negro Law of South Carolina. 23 

the principle that the acquisition of the slave is his master's, and that 
a slave's contract is like an infant's witli an adult. It is not binding 
on the slave, but if the master affirm it, the defendant cannot be dis- 

Sec. 37. A slave cannot even legally contract marriage. The 
marriage of such an one is morally good, but in point of law. the 
union of slave and slave, or slave and free negro, is concubinage 

Sec. 38. The consequence is, that the I'ssue of a marriage between 
a slave and a free negro, are illegitimate, and cannot inherit from 
father or mother, who may be ^vee. 

The hardship of such a case, where the issue of free negroes mar- 
ried to one another can inherit, might very well lead to a judi- 
cious enactment to remedy it. 

Sec. 39. A slave cannot testify, except as against another slave, 1.3 and iith Bee, 
free negro, mulatto, or mestizo, and that without oath. p. l!^*16G-7. 

Sec. 40. The propriety of this is noif so tioubtful. that I third? the ^ ^■'''•^*^^"~' 
Legislature would do well to repeal this provision, and provide that 
slaves in all cases against other slaves, free negroes, mulattoes, and 
mestizoes, may be examined on oath. 

Sec. 41. By the Act of 1834. slaves are prohibited to be taught ^cis of '3f,p i», 
to read or write, under a penalty (if a wliite person may od'end) ^^^^^1,^.^^^^ j-^q^ 
not exceeding $100 fine and six months imprisonment, if a -free 
person of color?'' not exceeding 50 lashes and a fine of $50. 

Sec. 42. This Act grew out of a feverish state of excitement prO' 
duced by the impudent meddling of persons out of the slave States, 
W7ith their peculiar institutions. That has, however, subsided, and' I 
trust we are now prepared to act the part of wise, humane and fear- 
less masters, and that this law, and all of kindred character, will be 
repealed. When we reflect, as Christians^ how can ■'^e justify it, that 
a slave is not to be permitted to read the Bible! It if? in vain to say 
there is danger in it. The best slaves in the State, are those who 
can and do read the Scriptures, Again, who is it that teach your 
slaves to read? It generally is done by the children of the owners. 
Who would tolerate an indictment against his son or daughter for 
teaching a favorite slave to read? Sncli laws look to me as rather 
cowardly. It seems as if we were afraid of our slaves. Such a feel- 
ing is unworthy of a Carolina master. - 

Sec. 43. The 2d section of the Act of 1834, prohibits the employ- ^Sut. 468-469. 
ment of a slave, or free person of color, as a clerk or salesman, under 
a penalty not exceeding $100 fine, and imprisonment not exceeding 6 

Sec. 44. The 1st section of the Act of 1800, prohibits the assem- '^ ^'*'- ^*°"^- 
blies of slaves, free negroes, mulattoes, or mestizoes, with or without 
white persons, in a confined or secret place of meeting, or with gates 

2i Negro Law of South Carolina* 

Pai'ioTAci°)'t ']•/ "'' ^^'^'^'■•^ ^^' ^"'^■-h place of meeting barred or bolted, so as to prevent 
-ii stut. !39-60. the free ingress and egress to and from the same > and Magistrates^ 
■Sheritis. Militia Officers and Officers of the patrol, are authorized to 
«nter, and if necessary, to break open doors, gates, or windows, (if 
^esi.sted) and to disperse the slaves, free negroes, mulattoesor mesti- 
zoes, found tliere assembled. And the officers mentioned in the Act 
are authorized to call such force and assistance from the neighbor- 
hood, as tliey may deem necessary ; and may, if they think necessary, 
impose corporal punishment on such slaves, free negroes, mulattoes, 
or mestizoes, and if within Charleston, they niay deliver them to the 
Master of the Work House, who is required to receive them and inflict 
flny such punishment as any two Magistrates of the City may award, 
not exceeding 20 lashes. If out of the City, the slaves, free negroes, 
mulattoes and mestizoes found assembled contrary to this Act, may 
be delivered to the nearest Constable, who is to convey them to the 
nearest Magistrate, and to inflict under hie order, punishment not 
7 Stat. 441. exceeding 20 lashes. 

7Stat 448 *^^'^" ^^* The 2d section of the Act of 1800, which prohibited meet- 

Bell ads. Gra-- injTs for the religious or mental instruction of slaves, or free negroes, 

ham, 1 N. and "= ° . ,,,..„ '„ Sj 

Mc. 278. mulattoes or mestizoes, belorc the rising of the sun, or after the gomg 

down of the same, was very properly altered by the Act of 1803, so 

^ „ as to prohibit the breaking into any place of meeting, wherein the 

13th sec. of Pa- '■ ... 

troi Act of '39, members of any religious society are assembled, before 9 o'clock at 

U Stat. 60. . , , . 1 ■ I » r- r, 1 1 I -1 

night, provided a majority are white people. Alter 9 o'clock at night, 
or bel'ore, if the meeting be composed of a majority of negroes, 
(although white persons may be present,) it may be dispersed by 
Magistrates, Sheriffs, Militia Officers, and Officers of the patrol, and 
slaves, free negroes, mulattoes and mestizoes may be punished not 

1 N. and McC. exceeding 20 lashes. 

^^^" Sec. 46. In the case of Bell ads. Graham, it was held that these 

Acts could not justify a patrol in intruding on a religious meeting, in 
the day time, in an open meeting-house, where there were some white 
people, although there might be a majority of negroes. 

Seo. 47. The 2d section of the Act of 1800. and f?he amendatory 
Act of 1803, are treated now, as dead letters. Religious meetings of 
negroes, with only one or more white persons, are permitted by night 
as well as by day. They ought to be repealed. They operate as a 
C- reproach upon us in the mouths of our enemies, in that we do not 

afford our slaves that free worship of God, which he demands for all 
his people. They, if ever resorted to, are not for doing good, but to 
gratify hatred, malice, cruelty or tyranny. This was not intended, 
and ought to have no countenance or support, in our Statute law. 

Sec. 48. The 40th section of the Act of 1740, regulates the appa- 
rel of slaves, (except livery men or boys) and prohibit them from 
wearing any thing finer, other or of greater value than negro cloth, 

Negro Law of South Carolina. 25 

duffils, kerseys, osnaburgs. blue linen, check linen, or coarse garlix^-p.ij.vrz. 
or calicoes, checked cottons or Scotch plaids; and declares all gar- 
ments of finer or other kind, to be liable to seizure by any constable 
as forfeited. 

Sec. 49. Thi.s section has not. within ray knowledge, ever been 
enforced. Indeed, if enforced now, it would make an immense booty 
to some hungry, unprincipled seeker of spoils. It ought to be 

Sec. 50. The 42(1 section of the Act of 1740, prohibits a slave orp j^ j-^^ 
slaves from renting or hiring any house, room, store or plan- 
tation, on his own account. Any person offending against this Act, 
by renting or hiring to n slave or slaves, is liable to a fine of £20 cur- 
rency, equal to $13 66-100, fo be recovered on complaint made to any 
magisl.rate. as is directed in the Act for the trial of small and meanP. L. 213. 

Sec. 51. The 43d section of the Act of 1740. which declares it to „ , ^^^ 
be unlawful for more than 7 male slaves in company, without some 
white person accompanying them, to travel together any of the pub- 
lic roads, and on doing so, makes it lawful for any white person to 
take them up and punish them by whipping, not exceeding 20 stripes, 
is, lam afraid, offeree, unless it be considered as impliedly repealed 
by the restriction on the patrol, to whip slaves found out of their ^^th sec. of Act 

■' . . of '39, UStat.bO. 

owner's plantation without a ticket iti writing. 

Sec. 52. The occasion for such a Inw has passed away. Public 
opinion has considered it unnecessary, and like every useless severity, 
mercy has condemned it. It would be well that il should be repealed. 

Sec. 53. The Act of 1819, 5lh section, repeals the 23d section of^ctg^figig p^ 
the Act of 1740. The law now, makes it unlawful for any slave, ^^-j .gg 
except in the company and presence of some white person, to carry or The state vs. 

, . I , ,-r . . , . , '^'■inel, 2d Hill, 

make use ot any hre arms or other otiensive weapon, without a ticket 291. 
or license, in writing, from his owner or overseer; or unless such 
slave be employed to hunt and kill game, mischievous birds or beasts 
of prey, within the limits of his master's plantation, or unless such 
slave shall be a watchman in and over his owner's field,? and planta- 
tion. If this law be violated, any white person finding a slave carry- 
ing or using a gun or other offensive weapon, without a ticket or 
license in writing, from his owner or overseer, or not used to hunt 
game,&c. within tlie plantation, oras a watchman in the same, may seize 
and appropriate to his own use, such gun or offensive weapon. But 
to make the forfeiture complete and legal, the party making the seiz- 
ure, must, within 48 hours after the seizure, go before the next Magis- 
trate, and make oath of the manner of taking, and then, after 48 
hours notice to the owner or overseer having charge of the slave, by 
summons to shew cause why tne articles should not be condemned, 
(the service of the summons being proved on oath,) the Magistrate 

2"6 Negro Law of South Carolina. 

may, by cerlificate under his hiind and seal, (if lie be satisfied that 
the arms have been seized according to the Act of 1819) declare the 
same to be forfeited. 
7 Stat. 462. Sec. 54. Tlie 6th section of the Act of 1 822 declares it to be unlaw- 

ful to hire to male slaves their own time; and if this law he violated, 
the slaves are declared liahle to seizure and forfeiture according to 
the provisions of the Act in the case of slaves coining into this State. 

Sec. 55. Whether this provision relates to tlie 4tii section of the 
Act of 1816, 7 Stat. 453. or to the 5th section of the Act of 1803, 7 
Stat. 450, is indeed somewhat uncertain. The Act of 1816. and all 
its provisions were repeated by the Act of 1818, 7 Stat. 458. The 
Act of 1803, seems to be unrepealed, and hence, therefore. I presume 
the proceeding to forfeit must be under it. By it the proceeding is 
to be in the name of the State, in the nature of an action of detinue. 
P. L. 172. Sec. 56. The latter part oi" the 36th section of the Ac^ of 1740, 

declares that any master, or over.-:eer, wlio sluill permit orsuiTer his or 
their negro or other slave or slaves, at any tinie to beat tlrums. blow 
horns, or use any other loud instruments, or whosoever shall sutler 
and countenance any public meeting or feastings of strange negroes 
or slaves, on their plantation, shall forfeit £10 cuiTent money, equal 
to $6 88-100 upon conviction, or proof, provided infornuition or suit be 
commenced within one month. 

Sec. 57. This provision is one so utterly unnecessary, that the 
sooner it is expunged from the Statute book, the better. Indeed it is 
not only unnecessary, but it is one under vviiich most masters will be 
liable, whether they will or not. Who can keep his slaves from 
blowing horns or using other loud in.struments ? 
7 Stat. 450. Sf.c. 58. The 2d section of the Act of 1803. prohibils the importa- 

tion of any negro, mulatto, mestizo, or other per.'^on of color, bond or 
free, from the Bahama, West India Islands, or South America, and 
also from other parts, of all of those persons who have been resident 
in any of the French West India Islands. 

Sec. 59. The 3d section provides that no rnale slave above the age 
of 15 years shall be brought into tliis State from an}' oi' our sister 
States, unless the person importing such negro shall produce and file 
In the oiFice of the Clerk of tiie District, vi'here the person so import- 
ing may reside, a certificate under the hands of two magistrates, and 
the seal of the Court of the District wiiere the slave so imported resi- 
ded for the last twelve montiis previous to the date of the certificate, 
that he is of good character, and iias not been concerned in any insur- 
rection, or rebellion. 

Sec. CO. Under the 5lh section, if slaves be brought into this State 
in violation of the provisions of the 2. id and 3d sei tiuns. they are de- 
clared to be forfeited, one half to the State, the oijar half to the 
informer: to be recovered in the name of tlie State, by action in the 

Negro Law of South Carolina. 27 

nature of an action of detinue, in wiiich it is not necessary to prove 
tiiat tlie defendant was in possession, at the commencement of the 
suit, and the informer is a competent witness. 

Sec. 61. The 3cl seciion of tiiis Act has heen so often violated, that 
it could liardly he enforced at present, without great injustice. Still 
the provision is a wise one. No greater curse has ever heen inflicted 
on South Carolina, than the pouring upon her of the criminal slaves 
of our sister States. It might he well for the Legislature, in revising 
(which I hope they will speedily do) our Code Noir, to re-enact this 

Sec. 02. The Act of '35. makes it unlawful to bring into this State g,,^ g^^ 7 ^^^^^ 
originaliy or to bring b ick into this State, after being carried out of^'^- 
It, any sliiv« from any port or place in the West Indies, or Mexico, or 
any part of South America, or from Europe, or from anj^sister State, 
situated to the north of the Potomac River, or city of Washington, 
under the penalty of $1000, for each slave, to be recovered in aa 
action of debt, and lorfeiture of tiie slave. 

This provision does not extend to runaway slaves. 

Sec. 63. By the Act of '47, any slave carried out of this State, in 
the capacity of Steward. Cook. Fireman. Engineer, Pilot, or Mariner. Act of '47, 11 
on board any steamer, or other vessel tradnig with any port or place 
in the Lsland of Cuba, may be brought back into this State, if he may 
iiot in his absence have visited some other port or place in the West 
Indies other than the Island of Cuba, or a port or place in Europe, 
i\Ie.\ico. South America or any State north of the river Potomac and 
City of Washington. 

Sec. 64. The 7th section of the Act of '35, providing for the con-^. „. 

' ^ = The State vs. 

demnation and forfeiture of a slave by a Court of a Magistrate and Simmons, ttal. 
■n 1 1 I 11 1 1 T 11/-. (« T-. • 1 r, 2 Speers, 761. 

b reeholdcrs. was dechired by tlie whole Uourt oi hirrors, m the State 

vs. Simmons, et ai., to be unconstitutional. How the forfeiture 
declared in the 6th section is to be carried oat, is somewhat doubt- 
ful. I suppose it n)ight be a part of tlie judgment on the indictment 
and cofiviction of the owner for bringing back a slave, which he had 
carried to the proliibited places. The whole provision had better he 
repealed. Slaves visiting iree States find nothing to enamour them 
of negro freedom there: in general, after all the labors of lone of our 
negro-loving brethren of the free Slates, they, in general, return to 
their Southern homes, better slaves. Forfeitures, too, may occur 
under this Act. which none of us would bear. Every servant, (negro, 
mulatto, or mes>izo,)who has been in Mexico during the war. and 
who has returned, is liable to be forfeited, and his master to pay a 
fine of ^1000. Could the law be enforced in such a case ? We have 
nothing to fear, if the whole Act of '35 be repealed. It ought to be, 
for no law should stand, which public opinion, in manj^ cases, would not 
suffer to be enforced. Indeed there are few, very few cases, where the 

28 Neguo Law of South Carolixa. 

Act of '35 could meet witli public favor. I speak unrepervedly. for I 
am talking to friends, slave-holders — citizens of a State, wliom I 
love, and whom I would have to be, "without fear, and without 


Crimes of Free Negroes, MulaUoes, Mestizoes, and Slaves — Tlieir 
Punishment and Mode of Trial, including the Law as to Runaways 
and the Patrol. 

Sec. 1. The general rule is, that whatever would be a crime at 
common law, or by Statute, in a wliite pereon, is also a crime of the 
eame degree, in a ^ree negro, mulatto, mestizo, or slave. In some 
instances the punishment has been altered, in others new ofiences 
have been created. There are also rases, in which the slave or free 
negro, mulatto or mestizo, from his status, would be guilty ot a higher 
crime than a white person would be. under the same circumstances. 
The State vs. These will be tried to be fully noticed, in this digest. Whenever a 
Crank, 2d Bail, slave Commits a crime by the command, and coercion of the master; 
mistress, owner, employer, or overseer, it is regarded as the crime of 
the master, mistress, owner, employer, or overseer; and the slave is 
not criminally answerable. 

Sec. 2. A free negro, mulatto or mestizo, cannot lawfully strike 
any white person, even if he be first stricken, and llierefore. if he 
commit homicide of a white person, generally, he cannot be guilty of 
manslaughter; he is either guilty of murder, or altogether excused. 
/ suppose if one without authority to govern or control a free negro, 
mulatto, or mestizo, were in the act of endangering life or limb of the 
free negro, mulatto, or mestizo, and he, to defend himself and save 
life or limb, were to slay his assailant, it might be excusable. A free 
negro, mulatto, mestizo, or slave, slaying one of tlie same stattis, 
would be guilty of murder, manslaughter, or be excused, se defen- 
dendo. as in the case of white people, at common law. 
P. L. 167. Sec. 3. The 17th section of the Act of 1740 declares a slave who 

7 402. phaJl be guilty of homicide of any sort upon any white person, except 
it be bj/ misadventure, or in defence of his master or other person, 
under whose care and government such slave shall be. shall, upon 
conviction, suffer death. 

Negro Law of South Carolina. 29 

This seems to conflict in some degree, witii what is saiJ, 3d clmp, 
1st section. Still, I tiiink what is affirmed there, is law. A homicide 
committed by the command and coercion of the master, is not one oi" 
which the slave is guilty, but the master is alone guilty of it. 

Sec. 4. By the 24th section of the Act of 1740, it is provided, if o P. L 169. 
sZare shall grievously wound, maim, or bruise any white person, unless 
it bo by the command, and in the defence of the person or property 
of the owner, or other person having the care or government of such 
slave, such slave on conviction, shall suffer death. 

Sec. 5. The 18th section of the Act of 1751 (which having altered 7siat. 425. 
the Act of 1740, is by the Act of 1783, continuing the Act of 1740. ^,\,'^,^,'f • 'j,'?/,^^: 
continued, instead of the parts altered) gives to the Courts trying '"*• '^'^"'''^*'°"' 
any negro or other slave, for any off(>nce under the Acts of 1740. orSuob. 
1751. where any favorable circumsfances appear, the power to miti- 
gate the punisliraent by law directed to he inflicted. 

Sec. 6. The meaning of the words grievously wound, maim, or 
bruise, has never received any precise adjudication. In the case of 
the State vs. Nicholas, a portion of the Court indicated their opinion 
to be. that to grievously wound, maim, or bruise, meant such an 
injury as might endanger life or limb. This is. I think, the true 
meaning. The subject, before '48, passed under my review, in the 
unfortunate case, in York, which led to the passage of the Act of '43. 
In that case, the lady on whose body the outrage was attempted, was 
seriously bruised, yet so, as in no way to endanger life. I thought, 
and so decided, that the slave was not guilty of a capital felony. 

Sec. 7. By the Act of 1843. any slave or free person of color, (mean- ^ g,^, 238, 
ing any Iree negro, mulatto, or mestizo) who shall commit an assault 
and battery on a white woman, with intent to commit a rape, shall 
on conviction, suff'er death, without the benefit of clergy. 

Sec. 8. The 24th section of the Act of 1740. declares any slave^p. l leg. 
who shall strike any person, unless it be by the command and jd'Siat. 40o 
defence of the person and property of the master, or other person 
having the care and government of such slave, for the 1st and 2nd 
off'ence. liable to such punishment as the Court may think fit, not 
extending to life or limb, and for the 3d ofl'ence. to the punishment of 
death. Under the 4th section, and this of the 3d chapter, it ought 
to be remarked, that that portion of the 24th section of the Act of 
1740. which exempts a slave from punishment for acting in obedience 
to his master and in his defence, requires more to make out his 
exemption than the Act intended. For it not only requires that the 
striking, wounding, maiming, and bruising, should he under the com- 
mamlofthe master, but also in defence of his person or property. Ei- 
ther the command of the owner or other person having the care or gov- 
ernment of the slave, the defence of his person or property should be 
enough. The law ought to be so amended. Any slave seeing a white 

30 Negrd Law of South Carolina. 

man about to knock his master dovv^n, or in the act of stealing hifi 
property, ought not to wait for a comma ml— his blow in defence, 
under such circumstances, is good and ouglit to be lawfil. 

p I,. 167. Sec. 9. The 16th section of the Act ol" 1740. provides that any 

' '"'■'■ shive, free negro, muhitto, Indian, or mestizo, who shall wilfidlij and 

7nalicious}y, burn or destroy any stack of rice, corn, or other grain, of 
the produce, growth, or manufacture of this State, ur shall wilfully 
and maliciouslj' set fire to, burn or destroy any tar kiln, barrels of 
pitch, tar. turpentine or rosin, or any other goods or commodities, the 
growth, produce or manuf U'ture of this State, or slmll feloniously 
steal, take, or carry away any slave, being the property of another, 
•with intent to carry such slave out of the State., or shall willully and 
maliciously poison, or administer any })o;son to any person, fieeman. 
woman, servant, or slave, shall suffer deatli. Over these and all 
other offences, tor which, under the Act of 1740, death may be the 
punishment, the Court, under the ISlh sei-tion of the Act of 1751, 
mentioned in the 5th section of the 3d Chapter of this Digest, have 
the power of mitigating the punishment. The term Indian, used in 
this 16th section of the Act of 1740, means either a freed Indian, (one 
who was once a slave) or an Indian not in amity with this govern- 
ment. (See 3d section of 1st Chap.) In the case of the State vs. 

l^^N.andMcC. wiiyte and Sadler, it was held that the Act of 1754, making it a 
felony without clergy, to inveigle, steal, or carry away any slave, 
applied to slaves, as well as to free people, and hence therefore, that 
it repeals that provision of the Act of 1740, which made it capital, on 
the part of a slave, '• to steal, take, or carry away any slave, the pro- 
perty of another. -ic/^/t i'H/ri»i to carry such slave out of the State. I 
Ihink the decision very questionable. For in 1783, the Act of 1740 
was continued as law. without noticing this supposed repeal of 1754. 
If the Act of '54, ii this respect, and not the Act of '40, is to govern 
slaves, then every slave aiding another in running away, is liable to 
be hannred. This certainly is rather a hard consequence. 

P. L. 167. 7 Stat. Sec. 10. By the 17th section of the Act of 1740, and the 14th 
'"'■'■ section of the Actof 1751, amending the same, any slave, whoshallraise 
or attempt to raise an insurrection, or shall delude and intice any 
slave to run away and leave this State, and shall have actually pre- 
pared provisions, arms, ammunition, liorse or horses, or any boat. 
canoe, or other vessel, whereby the guilty intention is manifested, 
is liable, on conviction, to be hanged, unless the Court, from favora- 
able circumstances, should mitigate the sentence, or from several 
being concerned, should be disposed to select some, on whom they 
would inflict other corporal punishment. 

f/O-T'siat^li 7 ^^^- 11- ^ ^'^^'^ ^^'^'^ '*'^^'^ harbor, conceal or entertain any slave 
that shall run away, or shall be charged or accused witli any crimi- 

Negro Law of South Carolina. 31 

nal matter, shall suffer such corporal punishment, not extending to 
life or limb, as the Court may direct. 

Sec. 12. A free negro, muhitto, or mestizo, who in 29t!i section "fAc-sofisai, p- 
the Act of 1740, was liable to a penalty for harboring a slave, is by ^''- / s.Ki.4t;o, 

• ■* • ° ^ Riiihiim vs. 

the j^ct of 1821. (which operate-s as an implied repeal.) if he or she WouU, uud. 164. 
harbor, conceal or entertain any fugitive or run away slave, liable 
on conviction to such corpora! punishment, not extending to life or 
limb, as the Court may in their discretion think fit. 

Sec. 13. The 30th section of the Act of 1740, prohibits any slave p. L. 170, 171, 
residing in Charleston from buying, selling, dealing, trafficking, bar- ' ' ' 
tering, exchanging or using commerce lor any goods, wares, provi- 
sions, grain, victuals of any sort or kind whatsoever, (except slaves 
who, with a ticket in writing from their owner or employer, may 
buy or sell fruit, fish and garden stuff, or may he employed as por- 
ters, carters, or fishermen— or n)ay purchase any thing for the use 
of their masters, owners, or other person, who may have the care 
and government of such slaves in open market.) All goods, wares, 
provisions, grain, victuals or commodities, in which such tratTic by 
slaves is carried on, are liable to be seized and forfeited, and may 
be sued for and recovered before any Magistrate of Charleston, one 
half to the informer, the other half to the poor of the parish of St. 
Pliilip's, and the Magistrate by whom the forfeiture is adjudged, is 
authorized to inflict corporal punishment on the slave eno-acred in „, 

, ^ . . 3'st sec Act of 

such traffic, not exceeding twenty stripes. The 31st section proiiibits 1740, 7 Sui. 409. 
any slave belonging toCliarleston, from buying any thing tosell again, 
or from selling any thing on their own account in t/harleston. All 
goods, wares and merchandize purchased or suhl in contravention of 
this seclion, are liable to be forfeited by the judgment of any Magis- 
trate of Charleston, one half to the use of the poor, the other half 
to the informer. 

Sec. 14. If any slave, (without the command of his or her master, p. l. 275. 
mistress, or overseer, evidenced by a ticket in writing.) shall shoot 
or kill between the 1st of January, and the last day of July in each 
year, any f iwn, (deer.) or any buck, (di-er.) beiueen the 1st of 
Sept. and last day of Oct., and between the 1st day of March and 
last day of April, such slave, upon conviction before a Magistrate, 
by the oalh of a sufficient witness, or I he confession of the said 
slave, shall, by order of the Magistrate, receive 20 lashes on the 
bare back, urdess security be given for the payment within one 
month of the fine imposed by the Act, on white or free persons, £2 
proclamation money, equal to ^6 44-100 for each fawn or buck killed. 
If the slave shall kill a doe, between the 1st day of March, and the Id ^"^7^1', stc.' 
1st of Sept., witiiout the consent and privity of the owner or over- •*''^^ "'^ '^'*' 
seer, such slave is liable, 0:1 conviction before a Magistrate aiid four 

32 Negro Law of South Carolina. 

frechoMers (sworn according to tiie 4th section) to receive 39 lashes 
on the biire hack. 

Sf-c. 15. A shive detected in fire hunting, or who shall kill in the 

p. L. 497. iiight-liine, ari}' deer, horse or neat cattle, or stock of any kind, not 

the property of his master or owner, without the privity or consent 
of the owner or overseer of the said slave, such slave, on conviction 
before a Court of one Magistrate and four freeholders, sworn to the 
best of their judgment, without partiality, favor or aflection. to try 
the cause now depending between the State, Plaintiff, and B. the 
slave of C. Defendant, and a true verdict give, according to evi- 
dence, is liable to receive 39 lashes on tlie bare back. 

Sec. 16. Any slave, who, not in the presence and by the direction 
of some white person, shall mark or brand any horse, mare, gelding, 
colt, filly, ass, mule, bull, cow, steer, ox, calf, sheep, goat or hog, 

stc.'Aci'ot'i'}. is liable to be whipped, not exceeding 50 Itislies, by the order of any 
Magistrate betbre whom the offence shall be proved by the evidence 
of any white j)erson or slave. 

Si:c. 17. The Act of 1834. authorizes the Court, before which a 

Acts of '3t, p. 12. slave or free person of color is convicted of any offence, not capital, 
1o punish the offender by imprisonment, provided this Act shall not 
abolish the punishments which were then by law imposed. Under 
this Act. the question will arise, whether the punishment by impri- 
sonment is cumulative ; or whether, when resorted to, it is in place 
of tlie other punislimenl to which the offender is liable. I incline to 
the opinion, that the punishment is not cumulative, but may be 
substituted for other punisiiment, at the discretion of the Court. 

TheStatp. pxre- Sec. 18. A slave guilty of insolence to a white person, maybe 

vs.'mhs. and" °" tried by a Court of a Magistrate and freeholders, and punished at 

MHri!nii'i)ist."2 ''"'"''' ii^''--t''^i 'i^f e.K^endiiiT to life or limb. 

*'"'°'^- Sec. 19. " No free peTsnn of color,^^ (meaning. I suppose, '• no free 

negro mulatto, or mestizo ") or slave, can keep, use or employ a still, 
or other vessel, on his own account, for the distillation of spirituous 

Act nfiP3], is( liquors, or be employed or concerned in vending spirituous liquors of 

and 2(J sec. p. 13. ^ .". . „. ,, 

any kind or description, and on conviction thereof is regarded as 

guilty of a misdemeanor, and is to be punished not exceeding fifty 

lashes, at the discretion of the Court; and the still or other vessel 

is forfeited, and the same is to be sold under an execution to be issued 

by the Magistrate granting the warrant to apprehend the free negro 

or slave, and the proceeds of the sale are directed to be paid to the 

Commissioners of the Poor. 

Actofsi 4tiisec- ^''^'^- ^^- A slave, or free person of color, (meaning as is above sug- 

P- '^- gested) who shall commit a trespass, which would subject a white 

person to a civil action, and for which no other penalty is prescribed, 

is regarded as guilty of a misdemeanor, and is to be punished at the 

discretion of the Court trying him, not extending to life or limb. A 

Negko Law ok South Carolina. 33 

question will arise under this Act, whether any civil remedy by way 
of trespass, can now be had against any negro, mulatto, or mestizo, 
for a trespass by him or her committed ? 

Sec. 21. A free negro, mulatto, mestizo, or slave, being a distiller. \ctof'34 last 
vendor, or retailer of spirituous liquor.^, who shall sell, exchanire, mye P^'''*S'"^P''' "'^ 

; X 1 • cT* I c? S6C. 

or otherwise deliver spirituous liquors to a slave, except upon the n sut. 409. 
written and express order of the owner, or person having the care of 
the slave, shall, upon conviction, (il'a slave) be whipped not exceed- 
ing fifty lashes; if a free negro, mulatto, or mestizo, be also whipped 
not exceeding fifty lashes, and fined not exceeding $50; one half of f •-■' °^ 'f^- 
the fine to the informer, the other half to the State. 

Sec. 22. A slave, or free person of color, (meaning as before sug- ^pi of >33 2a 
gested) convicted of a capital otfencc, is to be punished by hanging ; sec. p. 41. 
if convicted of an offence not capital, a slave is to be punished by p. 40. 
whipping, confinement in the stocks, or treadmill, or as i.s prescribed 
by the Act of '3i, (see ante 1st sec.) imprisonment may be resorted 
to. A free negro, mulatto, or mestizo, is liable to the same punish- 
ment, or may be fined. 

Sec. 23. In all parts of the State, (except in Charleston,) slaves Act of -sp, sec. 

or free persons of color, (meaning as suggesled ante 19th sec.) are to '^f,p'g,^^g .^,g 

be tried for ail offences by a Magistrate and five freeliolders ; the M'^'",'"'^^' , 

'^ ' Cliarltstoii, Jan. 

freeholders are to be obtained by the Magistrate, who i.s-sues the war- 1^48. 
rant, summoning eigiit neighboring freeholders, out of whom the pri- 
soner, (if he be a free negro, mulatto, or mestizo) or the owner or 
overseer, (if a slave) may select five to sit upon the trial, and upon 
good cause shewn against any freeholder, to be determined by the 
Magistrate, another shall be substituted in his place. If the prison- 
er, the owner, or overseer, should refuse or neglect to make the selec- 
tion of the five freeholders to sit, tlie Magistrate may himself make 
the selection. 

Sec. 24. In Charleston, (inchuiing the Parishes of St. Philips and en, s^,;. Act of 
St. Michael's) slaves, free negroes, mulattoes and mestizoes, are 'ia.- i'?'||,'sfc'^Actof 
ble to be tried for capital offences by tv.'o Judicial Magistrates and 7^' 1'; 

^ ■' == _ Act ol 

five freeholders, or slaveholders, who. I suppose, ought to be obtained "J -''• i> '^-^■ 

' . ' irjo Act (x'b'J, sec. 

as directed — ante 22nd section — and in such cases there must be a i--J, p. :V.i-(50. 

concurrence of all of the freeholders, and one of the Magistrates; in f,'j,;i,'„iHs, 
cases not capital, they are to be tried by two Judicial Magistrates ^j|V^'''"*'""' •''*"• 
and three freeholders or slaveholders, a concurrence of a majority of 
the jurors and the presiding Magistrate, is enough for conviction ; if 
the jurors be unanimous, then in that case the concurrence of the 
Magistrate is dispensed with. In all eases, the ministerial Magis- 
trate, issuing the warrant, is to attend the Court, and act as prosecu- 
ting officer. 

Sec. 25. The anomaly is presented here of two different systems of 

llhSO, sec. 

2i Negro Law or South Carolina. 

jarispriKlcnce for the State and Charleston. Both cannot be right, 

one sliould give way to the other. 
Act of '39, sec. Stc. 26. The iurors when organized, should be sworn bv the 

Magistrate, to well and truly try the case now pending before you, 

and adjudge the same according to evidence. So help you God. 
Act of 1754, sec. Sec. 27. A slave, 'ix^Q negro, mulatto or mestizo, charjied with a 

4. 7 Stat. 427. • . , a- • 1 l • , • , ■ • , ■ r^ ■ I • , ■ 

Act of '39, sec. Criminal otience, is to be tried withm six days, ii it be prasticable to 

iP--- giyg ^^ least one day's notice of ihe time and place of trial to the 'iVQQ 

negro, mulatto, mestizo, the owner, overseer, or other person having 

the care and government of the slave — which notice must, iii all cases, 

befairhj given before the trial can proceed. 

Act of '39, p. 22. Sec. 28. On the trial of a .slave, free negro, mulatto, or mestizo, it 
is the duty of the Magistrate to stale in writing, plainly and distinct- 
ly, the offence charged against the prisoner, and for which he is on 
trial ; to this charge the prisoner ought to be required to answer, 
cither by himself, or tlirough his guardian, master, owner, overseer, 
or other person having the care and government of such slave on 
trial, or by the attorney employed to defend such prisoner. In every 
such trial, the prisoner is entitled to the benefit of the services of an 
attorney at law, to defend him. The Magistrate is bound to keep a 
correct statement of the testimony given against and for the prisoner, 
and to annex it to the charge, (the accusation.) The judgment of 
the Court in the country Districts and Parishes, mast be in writing, 
and signed by the Magistrate and any four of the freeholders, or by 
the whole, if they agree. In Charleston, it must be made up as 
directed, (ante sec. 23.) and must be signed by those required to con- 
cur in it. It is in all parts of the State to be retarned to the Clerk's 
office of each judicial district, and be there filed. 

Act of '33 sec 3 ^'Ec. 29. When a slave, free negro, mulatto or mestizo, is capitally 

P-41. convicted, an application may be made to any one of the Judges of 

Act of '39, sec. ) i r j j ._ 

28, p. 23. the Courts of Law of this State, in open Court, or at Chambers, for 

a new tritil. Tlie Magistrate presiding, is required for such purpose, 
to furnish a full report of the trial ; and if from that, as well as from 
afl^davitri on the part of the prisoner, (which before being laid before 
the Judge must be shewn to the Magistrate- presiding.) the Judge 
should be satisfied the conviction is erroneous, a new trial is to be 
ordered, on which neither the Magistrate, nor Magistrates, nor any 
of the freeholders, who before sat on the case, are to sit again. To 
afford opportunity for this appeal to be made, or for an application to 
the Governor for a pardon, time, reasonable time, must be allowed 
by the Court between the conviction and the execution of the sen- 

Sec. 30. Under those provisions, there is nor any very well settled 
practice. Before a motion for new trial ought to be heard, reasona- 
ble notice of the time and place of such motion should be given to the 

Negro Law of South Carolina. 35 

Magistrate presiding;. When a new trial is ordered, I have always 
directed the Clerk oftlie Court to summon the Magistrate and free- 
holders, who sliould try the case de novo, and to give notice to all con- 
cerned, of the time and place of trial, and if necessary, to issue sum- 
mons for the witnesses. This seemed to secure, in the best way I 
could devise, consistently with the law, an impartial administration 
of it. 

Sec. 31. The right of appeal, in cases not capital, and to afford 
sufficient time in such cases, for an application for pardon, ought to 
be provided for. For many are the errors and abuses of power com- 
mitted in this behalf. The whippings inflicted by the sentence of 
Courts trying slaves and free negroes, are most enormous— utterly 
disproportioned to offences, and should be prevented by all the means 
in our power. In all cases where whipping is to be resorted to, I 
would limit the punishment by law, in all cases affecting both black 
and white, to forty, save one, and direct it to be inflicted in portions, 
und at considerable intervals of time. Thus mingling imprisonment 
and whipping together, and holding the rod suspended, in the con- 
templation of the party, until tlie delay itself would be worse punish- 
ment than the infliction. 

Sec. 32. The tribunal for the trial of slaves and free negroes, (a 
Magistrate and freeholders of the vicinage) is the worst system 
which could he devised. The consequence is, that the passions and 
prejudices of the neighborhood, arising from a recent ofl'ence, enter 
into the trial, and often lead to the condemnation of the innocent. — 
The Charleston scheme is better than that which prevails in the 
country. Still I think it none of the best. I would establish a tribu- 
nal to consist of one judicial Magistrate, to be appointed by the 
Legislature, to try all criminal cases against free negroes, mulattoes, 
mestizoes or slaves. He should be compelled to hold his Court on 
the first Wednesday in every month, at the Court House ; and he 
should have the power to direct a Constable, (whom he should bo 
authorized to appoint to attend his Courts) to summon 24 freehold- 
ers or slaveholders of the District, and out of them a jury of 12 should 
be empannelled to try the prisoner, allowing him as far as ten, a 
peremptory challenge, and on cause shewn, to the balance of the 
pannel. The Magistrate issuing the warrant, should be required to 
state the offence and act as prosecuting officer. To the charge thus . 
presented, the prisoner should l)e required to answer; and he should 
have the benefit of an attorney's services, to defend him. on the law 
and evidence. The judicial Magistrate sliould be required to charge 
the jury on the law and the facts, as a Judge of the Law Courts now' 
does. The jury should simply say guilty or not guilty. The Magis- 
trate presiding, should pronounce the judgment of the law. The 
prisoner on conviction should have the right of appeal *.o the Court 
of Appeals, and no sentence should be passed until the case was 

36 Nkgro Law of South Carolina. 

there heard, and the prisoner remanded for judgment. The judicial 
Magistrate, liis Constable, and tiie Magistrate issuing the warrant, 
should be compensated by fees, to be paid, in all cases, by ihc State. 

Actof'29,p. 28, Sec. 33. Under tlie law, as it now stands, the State is liable ibrail 

^'^*^' ^" the costs attending negro trials, (exce]^ fi ee negroes, rnulattoes, and 

mestizoes, in t!ie Parishes of St. Philips, and St. Michael's, who if 
convicted, and able to pay. are declared liable to pay the same, and 

P. L. 168. also under the 21st section of the Act of 1740, if the prosecution 

against a slave, free negro, mulatto, or mestizo, appears to be mali- 
cious, the Court trying the case, and satisfied of that fact, may order 
and compel the prosecutor to pay the costs.) This provision of the 

Ar-,tsof'29, p.28, 21st section of the Act of 1740, is re-enacted, as to slaves, in the Ma^i-is- 
Irates' and Constables' Acts for St. Philip's and St. Michael's, passed 
in 1829. 

Exparte Brown, Sec. 34. A slave cannot be twice tried, and punished, for the same 

2d Bail. 323. ^ ' ■t' • 


Sec. 35. If a slave be out of the house or plantation, where such 
^l|j^^<=- Act slave resides, or without some white person in company, and should 
P. L. 165. refuse to submit to, and undergo the examination of any white per- 

son, it is lawful for such white person to pursue, apprehend, and 
moderately correct such slave, and if such slave shall assault and 
strike such v^'hite person, such slave may be lawfully killed. 

Sec. 36. Masters, overseers, or other persons, have the power to 

apprehend and take up any slave found out of his or her master's or 

owner's plantation at any time, but more especially on Saturday 

Sec. 36, Act of nights or Sundays, or other holidays, not being on lawful business, or 

P^L 172 "''^ with a ticket from the master, or not having some white person 

in company, and even with a ticket, if armed with wooden swords or 

other mischievous and dangerous weapons, and to disarm such slave, 

and all such mentioned in this section, to whip. 

3.')th SPT. of tiie Sec. 37. Any person is authorized to take up any runaway slave, 

r'^L°ifl9^?stsec ^"^'^ it seems, it is noio the duty of the person taking up a runaway, 

Actof'ss. (when he knows, or can be inlbrmed without difficultv, to whom such 

V. L '141. '- ' • ' ^ 

.'■.3(1 sec. Act of slave belongs) to send such slave to the said owner, but if the owner 

be unknown, then in Charleston District, it is the duty of the person 
isth sec. ordi- taking up such runaway slave to send within five day.s, the same to 
ofchariesion, the Work House in the city of Charleston, the master of the Work 
315. '*^^' House is to admit every such slave upon a certificate from a Magis- 

trate of the District,, or Maj-or, or one of the Aldermen of the city, 
containing the particulars of the apprehension of such fugitive slave, 
and requiring his confinement; in all other parts of the State the 
runaway slave is to be sent to the Gaol of the District. It is the duty 
of the Master, Gaoler or Sheriff, to securely keep the slave so com- 
mitted, and it the same escape by negligence, the Master or Sheriff, 
(for tiic gaoler is merely the Shcriif's keeper.) is liable to the owner 

Negro Law or South Garolika. 37 

for tlic Value of the slave, or such damages as may bo sirsfnincd by 

such escape. Information of the slave so committed to the care ol ,l?n'\\^.^'^' ^'^''^ 

the Master of tiie Work House, is to bs by liim sear, to t.he owner, if I'liarUs^inn, ci'y 

, •' . Laws. 315. 

known; if he be unknown, the Master of the Work House is to adver- 
tise such slave in the city paper, (under the advice of the City Att'y.) 
giving the name, age. and other further description, so that the 
owner may be informed the slave is in custody. In other parts of the 
State, the runaway is to be advertised once a week for 3 montiis, in 
some public gazette, by the Sheriff or Gaoler, who is also required, if 
the owner's name and address can be obtained, to give him specific 
notice of the confinement of the said runaway. The adverti-seinent 
must contain the name, age, and other particular tlescrlption of .such 
.slave, and the name of the person said to be the owner. The Gaoler 
or Sherilf and the Master of the Work House, is liable to a fine of 
lOi". or $2 14 for such slave committed as a runaway, neglected to be 
advertised. The runaway is to be kept for 12 mouths, if not claimed 
by the owner, and in Ciiarleston, proof of property made on oath 
before one of the Judges of the Common Pleas, or any Magistrate, 
within twelve months from the date of the advertisement inCh:irles- 
ton, in other parts of the State, from the commitment, the runaway 
is to be sold. In Charleston the sale is to be made by the City She- 
riff, he giving one month's notice of the time, place, and reason of isiii and lOtli 

, , , . , . . ' ^ . SPC. Onl. of 

such sale; he is to give to the purcliaser a receipt tor the mone}' ciiai-iestmi, ',?n. 
arising from such sale, specifying the reasons of the sale, and he (the "^ ■^^^''' ''' 
City Sheriff) is directed to pay the said proceeds to the City Treas- 
ury. Out of the fund so paid over, i.s to be deducted the expenses of 
the said runaway, as provided and allowed by law. The balance is 
to be retained by the City Treasurer, for the owner, but if not claimed 
within a year and a day it i.s to be paid into the State Treasury, and 
out of it. 1 presume, the Commi.ssioners of Public Buildings of Cliaries- 
ton District are entitled to draw it. under the general law of '39. In 
other parts of the State, the Sheriff of the District is to advertise the 53dspc. of Act of 

r 11, 11 1 r • 1 , '39- 11 Stat. aO. 

runaway lor p. month, and then to sell ; and aiter paying the charges 
or expenses allowed by law, the balance is to be paid to the Commis- 
sioners of Public Buildings, and is to belong to them absolutely, if 
not claimed b}^ the owner of the slave so runaway, within two years. 
The title to be executed by the Sheriff to the purchaser of such run- 
away, is good, and bars the rights of the owner. Any neglect or 
default in the duties required by the 53d section of the Act of '39, 
subjects a Gaoler or Sheriff to an action on the case. 

Sec. 38. A person taking up a runaway, and failing to send the 
same to the work house, or the District gaol within five days, is lia- . 

'^ -' ' Actof'SS. 

ble to pay 206\ or $4 28-100 for every day the same may be retained. !'■ L 44i. 
The person taking up a runaway, is entitled to 10s. or $2 14-100 for iRth sec. Ord. 
taking up such runaway, id. or 7-100 for every mile from the place ci'ty La ws',*^3i5"' 

38 Nkguo Law of Socth Carolina. 

where, tnkcn to t]ie owner's residence, (if the runaway be car- 
ried to the ownei'.) or to the district gaol or the work house, and 
half a liollar per (hiy for the travel, computing the journey at 25 
■miles to the day. To entitle the person taking up a runaway, to 
these allowances, he must carry the slave to a neighboring Magis- 
trate, who may examine on oath the captor, touching the time and 
distance h^ has necessarily travelled, and shall go with such slave, 
and the .said Magistrate shall give a certificate on a just estimate of 
such time and distance, and on presenting such certificate, the gaol- 
er is to give his note for the same payable to the bearer. The Mas- 
ter of the Work House is lo pay the same, instead of giving a note. 
These fees are to be paid to the Gaoler, or Master of the Work House, 
by the owner, or out of the sale of the said runaway, if he should not 
be claimed by the owner and be sold. 
■scihnuii 37ih Sec. 39. It is the duty of the Master of the Work House, Gaoler, 

*740.'''^""^ ^"^'"'o'' Sheriff", to provide sufficient food, drink, clothing and covering, for 
p. L. 1C9. every runaway slave delivered into the custody of either. The 

11 Stat. 11. Gaoler or Sheriff" is entitled to charge 20 cents per day for each run- 

away confined, and also for all necessary expenses in providing 
20!hsec. Orel of*"'o'hes or blankets. In the Work House, a runaway slave is direct- 
'39. Citj Laws, g(i (Q i,g p^i X.Q labor on the tread-mill, and therefore no charge for 

diet is made. 
, „, ,„, Sec. 40. Each militia beat company, bv its commander, ("except 

1st. 2(1, and 3d . r j . > \ r 

etc. Act of '30. the company or companies on Charleston Neck.) is divided into con- 
venient patrol districts. All the free white male inhabitants, above 
the age of eighteen yeara. of each patrol district, are liable to do 
patrol duty, except aliens or transient persons above the age of forty- 
five years, or who have not resided within the State for six months, 
or persons who are above the age of forty-five, who do not own slaves, 
or alien enemies. Persons liable to do patrol duty, may send in their 
places, respectively, an able-bodied white man, between the ages of 
sixteen and sixty, as a substitute; and for failing to discharge patrol 
duty, in person or by substitute, each person liable to do the same, 
without a legal excuse, is liable to pay a fine of $2 for each default, 
and ten per cent, on his general tax of the preceding year. 
3(] and 4ih sec. Sec. 41. It is the duty of the commanding officer of each beat 
u'^sta'i 56 company, to make out a roll of the inhabitants of each patrol divi- 

sion, liable to do patrol duty, and from such roll, at each regular mus- 
ter of his company, to prick off", at his discretion, any number of per- 
sons to do patrol duty until the next muster, and appoint some pini- 
dent and discreet person to command the said patrol. If the officer 
commanding the beat company, fails to prick oflf. at each muster, the 
patrol of each division, or the commandant of the patrol fails in his 
duty, each of them is liable to a fine not exceeding $30. 

Nbgro Law op South CABOLft^A, 39 

Sec. 42. It is tlie duty of tlie commandant of tlie palrol to rail -''h »"') 13 hsfc. 

•' . ' Ac. of 'o'.l. 

them out at least once a fortnight, and to take up, anil corri;ct wilii ii Siat.ut— GO. 
stripes, not exceeding 20, with a switch or cowskin, ail slaves ibund 
outside of their owner'.? or employer's plantation, without a ticket or 
letter to shew the reasonableness of his absence, or some while per- 
son in company to give an account of the business of such slave; 
and also, if the slave have a ticket, and has in his possession, a frun, 
pistol or other offensive weapon, unless such slave be on lawlul busi- 
ness, or in company with some white person not less than ten years 
of age. Fire arms, and other offensive weapons, found by the patrol Act nt'43, 
in the possession of a slave, in violation of the above provisions, are laf- -^u • 
liable to seizure by them, and condemnation and forfeiture to iheuse 
of the regiment to which the patrol may belong. To obtain such 
forfeiture, the leader of the patrol making the seizure, must, withini 
ten days, go before the nearest Magistrate, and make oath of the 
manner, time and place of taking, and if the Magistral e shall be sa- 
tisfied of the legality of the seizure, he sliall summon the owner of 
the siave from whom the arms have been taken, to appear before 
him within ten days, to shew cause why the arms should not be con- 
demned. If the owner should fail to appear, or appearing, should 
shew insufficient cause, the said arms or weapons shall, by certificate 
under the hand of the Magistrate, be '•declared condemned,'' and 
may be sold within ten days, and the proceeds, after payment of the 
costs, paid to the paymaster of tlie regiment. 

Sec. 43. The patrol have the power, and are required to enter into othspcActorss, 
any disorderly house, vessel or boat, suspected of harboring, traffick- '' " '"*'' 
ing or dealing with negroes, whether the same be occupied by white 
persons, free negroes, mulattoes, mestizoes or slaves; and to appre- 
hend and correct all slaves ibund tliere, by whipping, (unless, as I 
apprehend, such slaves shall have not only a ticket to be absent, but 
also a ticket to trade.) The patrol is required to inform a Magis- 
trate of such white persons, free nearoes, mulattoes or mestizoes, as 
may be found in such house, vessel or boat, and to detain, until re- 
covered by law, such produce or articles for trafficking, as may be 
therein found, if such detention be authorized by any three freehold- 
ers or any Magistrate. It is the duty of tiie owner of each boat or 
vessel navigating the public rivers or canals of this State, to keep 
and produce to the Magistrates or patrols, when required, a list of all 
the negroes composing the crew, with their owners' names, and a de- 
scription of their persons. 

Sec. 44. The patrol may, as is stated in the 44th and 45th sec- n, hand I4fh 
lions of chapter 2nd of this digest, break up unlawful assemblies of 1^1*^841' "a 'eo 
slaves, and inflict punishment on slaves there found, not exceeding *Ji- 
20 stripes, with a switch or cowskin. 

Sec. 45. Every owner of a settled plantation, who does not live on 

■iO NEGrtO Law of South Carolina. 

l!['%ri' cl ^^'^^ the same s^ix iiionlhs in every year, and who employs upon the same 

11 Slat. firtoen or more slaves, is required to keep upon the same, some white 

man, capabhj ol' performing patrol duty, under a penalty of fiflycenta 

per month for each and every working slave employed on the said 


v!!l^' Tr/'^' "*^ Sec. 4(3. Patrols are not liable, in the discharge of their duty, to 

CI. the ])aynicnt o!" any tolls. 

J sth sec. Act of Sf.c. 47. Ill incorporated towns and villages, the power and duty 
ii' '^'' ''■ of regulating the patrol in the same, is vested in and devolved upon 

the municipal authorities of the same. 
Tiie stai'eYs. Sec. 48. Thc Captain of a Beat Company, cannot constitute him- 

^Mc(j, r;2. sell trie Captain ot a Patrol. 

iioKgvs. lieiier, Sec. 49. The ticket or pass to a slave, need not state the place to 
HrC. fiy. which he or slie is to go, and a patrol whipping a slave, with such a 

i74o' ^'''''^'^'*'^'^' pass, are trespassers. The form given in the Act of 1740, -'Permit 

this slave to be absent from the plantation of A. B. until ," or 

any other equivalent tbrm, will be sufficient. 
7iii nn(i.=tii sec. Sec. 50. It IS the duty of Captains or Commanders of Patrol, to 
11 Suit. 59. keep their respective commands in good order and demeanor, when 
on duty ; and any patrol man misbehaving himself or neglecting or 
disobe}'ing the orders of his commandant, is liable to a fine of not less 
than ^2, nor more than $20. If the Captain of a Patrol acts disor- 
derly, so as to defeat the proper execution of the patrol laws, he is 
liable to be returned by any member of his command, or any other 
person competent to give evidence, to the commanding officer of the 
Beat Company, who is to return him to a Court Martial for trial, and 
if found guilty, he may be fined not less than $5, nor more than $50. 
inthspc. Act of Sec. 51. Each Captain of the Patrol is required, at the net regu- 
59" '"^^' ''■ lar muster of tlie Beat Company, after his appointment, to make a 

return, on oath, of the performance of his duties. Failing to make 
such return, he is liable to a fine of $20 
17th sec Act of Sec. 52. The penalties to be incurred by the commanding officers 
^39. 11.61. 11 of Beat Companies, commandants of the patrols, and patrol men, for 
neglect of duty, or violation of law, may be imposed by Courts Mar- 
tin L 
mill s»c. Act of Sec. 53. If the patrol be sued, and the party suing, fail to recover, 
he is liable to treble costs ; whicli is full costs, to which is added one 
half, and then half of that half. 

Sec. 54. The Act of '39 in repealing all other laws on the subject 
of the patrol, wifurtunately excepts the Act regulating the perform- 
ance of patrol duty on Charleston Neck. The Act of '23, so 
saved from repeal, difters in many respects from the general 
Ac' of 'as.sec. i,law. which it is now necessary to state. 1st. A majority of the com- 
pany officers is to direct how the company is to be divided into patrol 
districts, and the Captain is so to divide it, and it is so to continue 

Negro Law of South Carolina. 41 

until altered by a majority of said officers. The officers failing to do 

this duty, are liable to a fine of ^30, to be recovered in the Court of 

Law. (by indirtment) as no mode is appointed by the Act. 2d. All 2d section; 

white males above 18 and under 60, residing in said patrol districts, 

(except ministers of the Gospel) all females owning ten slaves above 

the age ot ten years, and all persons having settled farms, or a house 

and lot, with five or more slaves above the age of 16. residing within 

the said companies, are liable to do patrol duty. Females required 

to do patrol duty, must of course do so by substitute. 3d. The com-„, 

t^ J J _ _ 3a section. 

manding officer, or officers of a company are to appoint in wriling. 
the leader of tlie patrol, whose qualification and term of office is the 
eame as pointed out in section 40. The person so appointed refusing 
to accept, the commanding officer or officers of companies or the lead- 
ers of patrol, not peforming the duties required, are liable to a fine of 
$20. to be recovi»red by indictment, in the Court of Law. and paid to 
the Commissioners of Cross Roads. No person can be compelled to 

serve as leader, more than once in 12 months. 4th. The patrol is not 

, 1 • , 1 1 o , . ■ 5th section. 

only autliorixed to enter disorderly house.s, »k.c., as stated in section 

42; but if resisted, they are authorized to break open doors, windows, 
and locks ; they are required to produce to the Magistrate, whom they 
may inform of white persons, free negroes, mulattoes and mestizoes, 
found in such houses, the produce or articles for trafficking found 
•there, to be disposed ofaccoi-ding to law. 5th. The leader of a patrol 
lis, as is stated in section 49, to keep his command in good order, &c. jethanJ'th see- 
any patrol man, misbehaving, &c., is liable to a fine of $2, to be "°'^' 
imposed by the officers of the company to which he belongs, and to 
be paid to the Commissioners of Cross Roads, Charleston Neck. — 
A leader acting disorderly may be proceeded against as stated in 
section 49; he is to be tried by a Court consisting of the oiTicers of 
his company, or any 3 officers of the Regiment, and may be fined $10, 
to be paid to the sanie authorities. Commissioners of Cross Roads. 
Charleston Neck. 6th. A substitute for patrol must be between 18 8:11 section. 
and 60. 7ih. Free negroes, mulattoes, or mestizoes, found on ,„ , 

^ ' ' lOth section. 

Charleston Neck, are to be treated by the j)atrol. as slaves, unless 

they produce their free papers, office copies, or other satisfactory 
evidence of freedom. If Ibund out of their own houses, or the enclo- 
sure of ilieir employer, not having a regular ticket from their guar- 
dian after 9 P. aI. irom20th Sept. to 20th March, and 10 P. M., from 
20tii -VJarch to2Qth Scpl. they are declared liable to be treated as slaves 
wii.hout a pass. Bf.h. No-grocery, retail shop, or any store, shop, or 
place, wherein are vended spirituous liquors, is to be kept open on the ' section. 
Sabb ilh day or any oilier day after 9 P. M., from 20th Sept. to 20th 
March, and afti^r 10 P. M., from 20tli March to 20th Sept., any owner, 
or occupant violating this law, or trading, trafficking, or bartering 
therein, with any slaves, free neg.oes, niulattoc?. or mestizoes, is 


Negro Law of South C'ArxOLiNA. 

12th section. 

13th section. 

14th section. 

15th section. 

16th section. 

Act of '45, 1st 
and 2d sec. 
11 Stat. 344. 

liable to a fine of $50, to be rerovercd by indictment, in tbo Court of 
La'v, and paid to the Commi.«sioiiers of Ronds. Chiiriiston 
Neck. 9th. Each inhabitant of Charleston Nick, liabi^ to patrol 
duty, is required to provide and carry with liini on servici\ a good 
gun or pistol, in order, with at least G b;ill cartri(lg(s for tiu- siinic. or 
eutlass, under the penalty of $2, and 10 per cent on jiis general tax of 
the year preceding. 10th. The comninnding officer of the company 
or companies on Charleston Neck, may appoint a S;'cretary. whose 
duty it shall be to prepare and lay before tiie Military Courts iiert-in 
before iTientioned. all necessary papers, and to kt tp a rtcord of the 
proceedings of the same, which is to be open to tlu- insptction ol' all 
interested. For this duty, he is ex^'mptfd fro m jairol duty. llih. 
The leader of each patrol may appoint a warntr to sunin)on the 
patrol; and for this duty he is exenspted from the ptilrol. 12th. It 
is the duty of the officers commanding the corapanics on Charleston 
Neck, and all Magistrates, to inform the leaders of the patrols, of 
unlawful assemblies, of negroes, (slaves) frve negrot.s. mnlattoes, 
and mestizoes. The leaders on receipt oi" this information, are to 
turn out their patrols, and discharge the duty required by law ; tail- 
ing to do this, they are respectively liable to a fine of $20, to be paid 
to the Commissioners of Cross Roads, Charleston Nrck. For uni- 
formity sake, I think this Act of '23. should be repealed. 

Sec. 55. The Commissioners of Cross Roads nn Charleston Neck, 
by the Act of '45. wer? authorized to build a Guard House, and it 
provides that all free negroes, mulattoes. mestizoes, and slaves, on 
Charleston Neck, charged or found guilty of violating the law, shall 
be therein confined, and thei^e punished ; and al.^o slav. s. free negroes, 
mulattoes, and mestizoes, taken up by the patrol, .'^liall there he whip- 
ped according to the patrol law. unless the ov,-ner or person having 
charge of such slaves, free negroes, mul.ittoes. or mestizoes, or their 
guardians, shall pay to the Commissioners of Cross Ronds, one dol- 
lar for each of said slaves, free negroes, mulattoes or mestizoes. 

N"£GRO Law cf South Carolina. 43 

Tke Rights — Civil and Criminal Remedies — And Liabilities of the 

Master. Also the Lcnc to Prevent the Disturbance of the Peace in 

relation to Slaves and Free Negroes. 

Sec. 1. The riglit of a master in a slave and all wliich appertains 
or belongs lo him, is tliat of property. If the slave be in the posses- 
sion of another, his owner may maintain detinue for his specific deli- 
very, or may have a bill in Equity, to compel his possession to be 
•restored, 1 unless he may have been boarrht for saie, in which case"Sarter vs. Gor- 

' ^ •' . ■ '^""' 2d Hill C. 

the owner is left to his remedy at law.) or may bring trover to reco-K- i2l. 

ver the damages sustained in his conversjon. The owner may bring 

irespvss for any forcible taking of (he slave from his possession, or for 

uny forcible injury done lo his person. So too. if a slave wander 

from tlie posse.s.-^ion of the owner, and another employ him, the owner ^^'' ^^.L*^'"' 

may bring assumpsit for his labor, or trover for the time he may be in 370— 2. 

tlie employtuent of a ilrird person, or if such person knew he was a 

slave, the action on tlie case might be sustained. So too. if a bailee Helton vs. Gas- 

abuse or employ a slave ditfi'rently from the contract of bailment, uuncan vs. Rati 

<tnd he is killed or injured, the bailee would be liable to the owner. — }j"J',^ g^j^' ^'^ 

So too. a romn)on ciirrier transt^ortincr a slave from one place to ano- JJ'^'"'^, ,'''!^;, ^"^^ 

' = ^ Donald, 4 McC. 

ther. is liable fm an injur}' to. the ileatli, or loss of the slave, as he~^- 

would be for other articles, with this exception, if he shews that he 
used proper care and diligence, and the injury, loss, or death, resulted wrJThtvs Gray 
^rom the act of the slave, then he would not be liable. Any employ- 2d Bay, 461. 
meat of a slave, without the consent of the master, by which the 
slave is killed, or injured, makes the person so employing him, liable 
for the damages sustained by the owner. For personal property, in 
the possession of the slave, and commonly called the property of the 
slave, the m.ister may maintain the same actions against one posses- 
sing himself of it, as he could ibr the slave himself. For harboring a 
runaway slave, knowing him to be such, an action on the case can be 
m a i n ta i i '. e d h y ( !i e o w n e r. 

Sec. 2. A contract Ibr the hire of a slave for a year is an entire Pnoo' vs. Par- 
contract, yel if the slave die, his wages will be apportioned. But if'"'' ' " ■^- ■ ~ ■ 
the slave be sick, or runaway, no deduction is to he made on either W; lis vs. Ken- 
account. The owner is not liable generally, for medical services ren-";^3/' ' '^^' 
dered to his slave, while in the possession of one to whom he may he 
hired. Tlie master is liable Ibr lUi'dical services rendered to liis "uarre^i "2yi]ail. 
slave wilhout his knowledge, if the slave be in great danger. ^''2- 

Sec. 3. By the 5rh section of the Act of '39, provision is made, if 5,(1 gee. Act of 
any waile miri shall heat or abuse any slave, quietly and peaceably '"^'•^- 11 Stat. Oti. 
being in his master's plantation, or found any where without the 
same, with a lawful ticket, that lie shall forfeit $50, to be recovered 
by and to the use of tlic owner, by action of debt, besides being liable 

44 ■ Negro Law of South Carolina. 

Caldwell etal. to the owner, in an action of trespass for dama>--eK. UiTv^'-er thiV pro- 
ads. Langford, 1 . . . ' ^ 
McMuii. -i75, vision, il. has been held, that wher^' a .shive was ibiind out of tii.s Pias- 
ter's plantation, but had a ticket, and was wiiipped by tlie party find- 
ing him. that the ntiaster could maintain the action under the Act, 
and recover. 

Sec. 4. The Act of 23, for the re,q:ulation of patrol duty on Charles- 
64. ° ' ^' ton Neck, section 4, provides if any wiiite man .shall zran^ow/?/ heat, or 
abuse any slave, quietly and peaceably being in liis or her owner's 
enclosure, or found anywhere without the same, with a lawful ticket,- 
he shall forfeit S50. to be recovered by the owner, and to his use, 
besides being liable to the owner in an action of trespass for dama^^es. 
This provision is identical with that of 'S9, except that in the Act of 
'23, the beating or abusing must be loantonhj. In the Act of '39. no 
such word is used. It may be under the Act of '23, malice, or craeU 
ty, would have to be shewn. 

Sec. 5. The 3rd section of the Act of 1747. provides, that if any 
3ci see. Act of overseer or manager shall employ upon his own accoant or bu.^ioess, 
/ . ^- 1-- * '^^ any of the negroes committed to his care, by sending them on errands, 
or in any other manner whatever, such overseer or manager shall pay 
the sum of 10s. (equal to $2 14-100,) for every day he or they shall 
so employ any negro committed to the care of such overseer or mana- 
1st section. ggj, (This penalty, another part of the Act, section 1st. directs to 
be recovered before a Justice of the Peace, Magistrate now, in the 
manner and form prescribed for the recovery of small debts and da- 
mages.) The 3rd section further provides, that to establi.'jh the iact 
Sd^secUoiv'^^'' of the employment of the owner's .slaves by the overseer or manager, 
the wformation of ike negroes shall be sufficient, unles the overseer or 
vianager will exculpate himself on oath. 

In the case of Dillard vs. Wallace, I ruled that this provision was 
1 McMull. Rep. obsolete from non-user. The Court of Appeals, admittinig that, its 
enforcement had been hitherto unknown, and ninety yeajs had then 
elapsed from its enactment, held that it was still not obsolete. It is 
therefore a law, hov/ever anomalous in its provision about evidence, 
still to be enforced. 

Sec. 6. If any slave shall be beat, bruised, maimed or disabled, in 

C;h F=c. Act of ■' . ■ ' ' 

iMu. P. L. 165. the lawful business or service of his master, owner, overseer or other 
person having charge of such slave, by any person or persons, not 
having sufficient cau.^e or authority, (of which cause the Magistrate 
trying the case is to judge.) he or they shall forfeit 40^. current mo- 
ney, equal to 5^. Sd. sterling, or |1 20-100. to the use of the poor of 
the District or Parish. If the slave or slaves be maimed or disabled 
from performing his or her or their work, the person or persons beat- 
ing the slave, shall also forfeit and pay to the owner, I5s. current mo- 
ney, equal to about 44 cents, for every day he may be unable to dis- 
charge his usual service, and the charge of the cure of such slave. 

Negro Law or South Carolina. 45 

If the (liimacTps i:i the whole do not exceed £20 currcMit money, equal 
to $12 27-100 t!iey, as also the penalty (br the use of the poor, may 
be recovert-d beibre a Magistiate ; and ii' the oftViider shall produce 
no goods on which the same maybe levied, the Magistrate is author- 
ized to conimit him to gaol until tiie same be paid. 

These provisions have been very little noticed, and furnish so poor 
• I r'^iief for the abuse to which tlu-,y apply, that they v\'ill rarely be 
resorted to. The action of trespass is an abundantly better remedy. 
Still, this law e.Kists. and may. in the case described in the Act, be 
resorted to by owners, if they choose so to do. They cannot, liowev- 
er. have this remedy, and also an action of trespass. 

Sec. 7. Any person who shall give a ticket or written permit to a . ,,„, 

■'. *^ *= ' Actsof '3b, p. 83. 

sUwe the property of or under the charge of another, (without tiie 

consent, or against the will of such owner, or person having charge.) 

uutliorizing such slave tn be absent, or to deal, trade or tralTie, such 

person is liable to be indicted, and on convi(;tion. to be punished by 

fine not e.Kceeditig $1000, and imprisonment not exceeding 12 months. 

Notwithstanding this Act, a person who might give a ticket to a X!^^ '^'■'I? ,\^',i 
slave, with a view to aid a slave in running away and departing from 472. 
his master's service, might be tried and capitally convicted under the 
Act of 1754. 

Sf.c. 8. If a white person harbor, conceal or entertain any runaway 
or fugitive slave, he or she is liable to be indicted for a misdemea- ■^'^"'°'^'~^'P'^''' 
nor, or prosecuted in a civil action for damages, at the election of the 
owner or person injured. If indicted and convicted, the offender is 
liable to a fine not exceeding $1000. and imprisonment not exceeding 
12 months. The owner may proceed by indictment, and also civilly, g.^^,' '\ Vich. 
at the same time, he cannot be put to his election until the trial. '^^■ 

Sf.c. 9. If a person be maimed, wounded or disabled, in pursuing g,]., ^p^ j^^t „{- 
apprehending or taking any slave that is run away, or charged with ^''*'^- ^- ^- ''^^- 
any criminal offence, or in doing any thing else, in obedience to the 
Act of 1740, he shall receive such reward from the public as the Ge- 
neral Assembly may think fit; and if he bn killed, his heirs, execu- 
tors or administrators shall receive the same. 

I do not know that any claim has ever been made under this law. 
Still, however, it seems to be of Ibrce, and a claimant would be enti- 
tled to the benefit of its provisions. 

Sec. 10. The Court trying and capiially convicting a slave, is to 
appraise the same, not exceeding $200, and certify such appraisement g^g* u sut. sol' 
to the Treasurer of the Division within which tiie slave may be con- 
demned ; and in the event of the slave being executed, in pursuance 
of the sentence, the Treasurer is directed to pay the appraisement to 
the owner. 

Sec. 11. If a white person game with a free negro, mulatto or 

„ • , 1 II u X 1 . ,' ■ Act of 1834. 6(h 

mestizo, or slave, or shall bet upon any game played, wherein one ot gee 7Stat. 4Gy 


Kr.cno L.vw ot' Sul'tii C'ir-ioMxA. 

Tlie S:-.ti? vs. 

N:-.ttf;, aa;i:ii, 


Ac! of '4$, U 
S;at. i'Ji. 

Is! st-c. Ac-t of 
'17. 7 Sun. 40-1, 

^!h sec. Acl of 

'3i. 7 Si^it. 409. 
Siii'P vs. S "lie. 
Rice's lie]). 147 

'3d sec Act. of 
'3-1. 7 S.A.I. 469. 

Act of '44. 
«;al. ^94. 

The S'ate vs. 
Evans, 3ci Hill, 

Thp State vs. 
S ime. Rice's 
Rep. 147. 

The S'ate vs. 
Sc'.iroder, 3(1 
Hill, til 

The State vs. 
Avtiuts, Ud. S:rob 

tl'.e parlies is a *ri-ee negro, mulatto, mt'stizo or slave, or .vhali he will- 
i:i?xiy prer?ent, aiJing and ahetting, whcM'c^, any game of chance i^ 
playjd, as ai'oi'cy;',iil, in .suvli cast!, sucli white person, upon conviction 
by inLlicLiaoiit. io lijible to rectiive 39 lasiie.s, atid to be fincti a;xl im^- 
pri.soneu at the Ji^-cretion ot" tlie Court; one half of the fine is to go 
to tlie informer, the otlier half to tjie State. 

Kjiic. 13. Any sliop-kccper, trader or other person, h}- himself or 
any oilier per.on acting Cor him or her. wlio shall buy or purcjiase 
from any .slave, in any partof thi,^ St^f-e, any corn, rice, jiea-s, or other 
grain, bacon, flour, tobaf'co, indigo,' cotton, blades, hay, or any other 
article \vhi;f.?oever, or shall of herwrseiiieal, trade or irafTic wilh any 
slave not havi:ig a permit so to d^al. trnde or Irnflic, or to sidl any 
such article, from or Under the_.Jatrid' of his master or owner, or such 
other person ;is may have the care".and management'^of such slave, 
upon conviction, is lialile to bs fhi^^iot exceedins !|1GC0, and to bo 
impriiioncd not more t'lan 12 montiis. nor Tess than 1 foontli. It is 
the business of the party trading with a slave, to prodijce anii prove 
the, permit. 

Sicc. 13. If a shivp enter a shop, store, or house of any kind, used 
for dealing. tr;iding and tratlicking, with an articie, and come out with- 
out the same, or eister without an article, and conui out with one. it 
is sulllcient evidence to convict tlie owner or jjerson occupj'ing the 
same for trade. In an indictment under the Act of 1817. 

Sec. 14. If a white person, being a distiller, vetidor or retailer of 
spirituous liquors, shall sell, exrhange, give, or in any othcTwise de- 
liver any spirituous liquors to any slave, except upon the written and 
express order of the owner or person having the care and nuinage- 
ment of the slave, he shall, upon conviction, be fined not exceeding 
$100. and imprisoned not exceeding six months; one half of tlie said 
fine to the use of the inlbrmer, anil the otlier half to the use of the 

vSec. 15. One effect resulting from the Act. and certainly neither 
intended nor anticipated by the Legislature, was to repeal the penal- 
ty of 'he Act of 1817, quoad distillers, vendoi's and retailers, (the 
very persons who, ;il)Ove all others ought to bear the heaviest pen- 
alties ) in relation to the sale or exchtinge of spirituous liquors. The 
rule of evidence established by the Act of 1S17, as to the production 
and proof of the permit, still remains in force. 

Skc. 16. In an indictment for trnding with a slave, or giving or 
delivering s])irituous liquors to a slave it is necessary that the slave 
should be described, when possible, by I'.is own and his owner's name,, 
or if that be not possible, by some equivalent description of the slave. 

Sec 17. In indictments under the Act of 1834. alrhough the rule 
of evidence estiiblished by its 5ih section does not apply, and so. too, 
under the Act of 1817, where .the trading is not in '-a shop, store, or 

Np;g:{o L.iw or South Cakolixa. 47 

hons^e of any ki:Kl, nst\] for triulino- " yvx it' the sl:ive b.:; soL^r: to enter 
with an article, and com(? out vviliiout it, or to fiitvr wiiliout an arti- 
cle, and come out witli one. it, is a tact. iVom whifh. at coininon law. 
a pro8urap(.ion may arise ol'gnilt, ami on which the jury may convii-t. f:-ii,Ji-."" kiV? 
Sec. 18. It was dfc-iJed imriKHiiately alter tlie passaije of the Act !|ir|™ .'^^J'J:^. 
ot' 1817, tliat (he sale to a slave, of any article ichalioecer. orpurchase y,"" '','""•• 1 
from a slave of any article ichatsoevcr. beiontrino- to tlie slave, his Th" Saie v^5, 

, ■ I • ,^ I I Aiioup. 2 N. and 

rn.i.ster, or any other p'3r^;oii. wa.s a violation ol tne law. isin:. i?~. 

S:-:c. 19. If the ma.ster. or over.-5eer. or other per.-on having cliari>-e <j.%,',;j^2'';i^^;,„,j 

of tile slave, send a slave \vil!i i^oods to detect anot.lier, in deaiin4- qJi'j'gve \^"'''' 

trailin!:j or tralSckiiiij with a slave, and stand by, and si^e the trtidinu". Anont-.'^ N. and 

: •' '^' ?.lc(.;. -Si . 

it does not excn.'^-e the defendant, he still ia guilty. 


Sec. 2k). If the owner, or ovei-seer, or other perso'i havini^ diarge ohm im, (not 
of theslavi;, go with him to make the sale or [)urchase, and st.ind by tik's'^ii'- vs 

and russeiit to the Sii.nie, the vendor woulil not be guilty. ¥^)" then. .'^','"''*' ^ SiJ.-ers, 

^ — ■' • jt^'i. 

,J,he trading might be regarded as that of the master by his slave. 

^' St:c. 21. If the trailer he in tlie habit of trading with slaves and !''• ^'^'V^- , 
;.;. ^ , ^ Anon?, 2 N. anil 

htid authorized his clerk so to* trade, he may be convicted for a tradnig ^cO. -27. 

•' The S :ite vs. 

with ii slave, by his clerk in his absence. But the principal cannot .Uxftiimi, dpci- 

,y . , ., 1 1 1- .1 ^ ,-■ 1 • I I I 1 -1 (led ^tColumbia, 

be crimnially ansv^erahle lor tiie act ot ins cierk, unless none with May '3."). 

his knowledge and consent actual, or implied. The same ruh; holds, ro^mtn*^ ^liiuJ. 

as to a partner. ii;V „, , 

1 T hv S'a'e vs. 

Sec. 22. An overseer trading with his cmployer'-s slaves may be ''imniie'", 2 

. ' ■' •' Sn-ob. 

indicted and convicted, under the Act of 1.317. 

S.t;c. 23. Before the Act ol 'SI, a p;,'rso;i wlio sold liquor to a slave tiip S'atp vs, 

, ,, , , ,. , . , Soiiii-rkalb. 2 N. 

might be indicted lor trading .with a slave without a ticket, and also u'.d ,McC 280. 

for retailing. It follows, since the Act of '34 is substituted tor that of os.diivan,*at 

'17, so lar as the penalty is concerned, tiial a person now may i,^ ^'^'^i Pi-ius. 

indicted for selling, giving, exchunging or delivering spirituous 

liquors to a slave, and tor reitiilirig without a license, although there 

be but one sale and delivery. \ 

Seu. 21. If one sell spirituous liquor to a slave, or to another for n-irrison vs. 

him, without a permit from his owner, employer, or other person hav- g^l;'^''^^' ' ^''"*^''' 

ing charge of him, and the slave die in consequence of the too Woe 

use of the liquor so sold, the person so selling, is liable, in an action 

on the case, for the value of the slave to the owner. 

Sec. 25. A license to retail, cannot be granted to an applicant,,,, ,. , , 
' =■ J^^ ' 4in spction Act 

unless he will swear that he will not, during his license, sell, give, °f^'34, u stat. p. 
exchange, barter or otherwise deliver spirituous liquors to any slave 
contrary to the law on that subject. If he has been engaged before 
in the business, he must also swear, that he has not during his past 
license, sold, given, delivered, exchanged, bartered, or otherwise 
delivered spirituous liquors to a slave contrary to law. 

Sec. 26. If a master or other person having charge of a slave whoso'h sec. Act of 
may be accu.\;ed of any capital or other crime, shall conceal or convey p, l'. 16S. 

4S Negro Law of South Carolina. 

.uvny such slave, so he cannot be brought, to lri;il and punislinnentj 

such master or other person shall be liable to Ibrfeit £250 current 

money, equal to £35 I6s. 5d. or $153 58-100, if the crime be capital j 

if !;oi capital then the forfeiture is £50 currency, equal to £7 3s. 2d, 

Tb'S'aievs. or $30 70. This provision, in capital felonies, supersedes the com- 

*M^y 1340. " **" mon law offence of accessory, after the fact in a crime committed by 

a slave, so far as owners and other persons having charge of a slave 

may be concerne<l. 

.^ , Sec. 27. A master is liable for the acts of his slave, done neffli- 

Driiyfori ads. , - =" 

Mmire. Parker geutlv, uiiskil fully, or willull v. in the course of any public emplov- 
vs.Gonlon.Uud. ^ / i • ■ . u ,• , , , • , , 

26>i. meat or busuiess carried on by hira, under the authority or with the 

•s TOn'i?Du(j.^' consent of his master. As where, a slave navigating his master's 

sn'eevs Trice.i ^'6*5^6'; ^^ negligently managed his craft as to injure a wharf, or to run 

liitv. 1/8. down a car of fish, or where a slave carpenter, with liis master's 

assent, actual or implied, umiertakes to repair a hoiise. and in doing 

it, does it so unskilfully, that the whole building falls down, or where 

a slave blacksmith, in shoeing a horse, becomes enraged wilh him, 

and wilfully knocks out the horse's eye 'with his shoeing hammer, in 

all these cases, the. master is liable, according to the principles which 

I have above stated. 

Siiee vs. Trice, 3 Sec. 28. The master is not liable for the unautliorizcd acts of his 

vvuisis^'vs. slave, done without his knowledge or consent, actual or implied, and 

Smith 3 McC. j^^^^.j j,., .^,^y p^ijijc business or employment, in which he nas placed his 


Sec. 29. Any person or persons, who shall, on Ins. her, or their^wn 
liS^aL292^.' " behall. or under color, or in virtue of any commission, or authority 
from any State or public authority of any State in this Union, or any 
foreign power, come within this State, with the intent to disturb, hin- 
der, or counteract the operation of laws made or to be made, in rela- 
tion to slaves, free negroes, mulatloes, and mestizoes, are liable to be 
arrested, and if not bailed, committed to gaol by any of the Judges of 
this State, including the Recorder for a high misdemeanor, and on 
conviction is liable to be sentenced to banishment from the State, and 
to be fined and imprisoned at the discretion of the Court. 

Sec. 30. Any person within this State, who shall at any time 

2ud spc. Act of , . . .!•»<• CI.. X u 

'44. 11 Stat. 292 accept any commission or authority Irom any btate, or pub- 
lic authority of any State in this Union, or from any foreign 
power, in relation to slaves or free persons of color, ;inil who 
shall commit any overt act with an intent to disturb the peace 
or security of this State, or with intent to disturb, counteract, or hin- 
der the laws of this State, made or to be made, in relation to slaves 
or free negroes, mulattoes, or mestizoes, shall be deemed guilty of a 
misdemeanor, and upon conviction thereof shall be sentenced to pay 
for the first ofl'ence, a fine not exceeding $1000, and to be imprisoned 
not exceeding one year; and for the second ofTcnce. he shall be 

Negro Law of South Cauolina. 49 

imprisoned 7 years, and pay a fine not less than $1000, or bo banished 

from the State, as the Court shall see fit. 

Sec. 31. The Governor's duty is to require all persons who come g^g^^dgj, 

into this State, for the purposes, and under the circumstances stated 

in the 1st section of the Act of '44. and the preceding 29th section of 

this digest, to depart from the State in 48 hours after sucli notice, and 

such persons shall thereupon be bound to depart, and failing to do so. 

they are guilty of a high misdemeanor, and upon conviction, are to 

be sentenced to be banished from the State, and to such fine and 

imprisonment, as the Court may think expedient. 

Sec. 32. Any person convicted a second or any subsequent time, , , 

■' ^ ^ , . ,.. -lili section, 

under the 1st and 3d sections ot the Act oi '44, set out in the preceding 

29th and 31st sections of this digest, is to be imprisoned not less than 

7 years, to pay a fine not less than j$1000, and to be banished from 

the State. 

Sec. 33. It is the duty of the Sheriff of the District to execute the sth section, 
sentence of banishment, by sending the otFender out of the State; 
and if he shall return, (unless by unavoidable accident,) the Sheriff 
of the District where he may be found is '• to hohC him in close con- 
finement under the original sentence, until he shall enter into a recog- 
nizance to leave the State and never to return. 

Sec. 34. Free negroes, mulattoes, and mestizoes, entering this ]gtsec ^ct of 
State as cook, steward, or mariner, or in amy other employment, on '^^' ^^ '^^^^- ~'^^- 
board any vessel, in violation of the provisions of the 2d section of 
the Act of '35, and which is set out and prescribed in the 59th section 
of Chapter 1, of this digest, and who may be apprehended and con- 
fined by the Sheriff, are not entitled to the writ of Habeas Corpus. 

Sec. 35. If the SheritF shall by the usual posse comitatus and the.,, ^g^ , t„fi44 
civil authorities, not be able to enforce the provisions of the Act of ii ^t=it-''-"-'3- 
'35, the Governor, on a requisition made on him. and signed by the 
Sheriff, is required to order out a sufficient number of the militia, to 
meet the exigency of the case, to be placed under the command of 
discreet officers, who shall be ordered to give the Sheriff the aid 
necessary to execute the said Act. 


In the unavoidable hurry of revising the proof-sheets, a few errors 
escaped correction. Slight verbal inaccuracies, and those merely in- 
volving aninversionor omission of a letter, the intelligence of the 
reader will easily correct. 

Page 10. line 3, for «Wta,"read "rite." 
» «' « 10, for ''sziiu^M,'' read ''semiii." 


ABDUCTION. Penalty for the forcible abduction of free negroes, 13 
ACTION. Different forms of, for injuries, &c.. to slaves, 43 

ACT OF LEGISLATURE. Emancipation to be effected only by, 11 
An Act bestowing freedom, never presumed, - - 11 

APPAREL. Of slaves, regulated, - - - 24,25 

APPEAL. When time shall be allowed for, - - - 34 

APPRAISEMENT. To be made of convicted slaves, - 45 

ASSAULT AND BATTERY. Not jusiifiable for insolence 

from a free negro, &c. _ _ . . 13 

By a slave, how punished, . _ _ . 28,29 

With intent to commit a rape. - - - - 29 

ASSEMBLIES. Of slaves, &c., when unlawful, - 23,24 

Proceedings in cases of, - - - - - 24 

ATTORNEY. Allowed to slaves on their trial. - 34 

BASTARDS. Issue of slaves married to free negroes, are, 23 

BEaUEST. Of slaves, when void, - - ' - 11 

To slaves, void, .__-._ n 

BRANDING. Of cattle, &c., by slaves, unlawful, - 32 

BURNING. Of stacks of rice. &c. by slaves and free persons of color,30 
CAPTAINS. Of vessels, with negroes on board, to give bond. 15 
CHARLESTON NECK. Patroilaw relating to, - 40,41,42 

Guard House, on, ------ 42 

Unlawful beating of slaves, - _ _ - 44 

CHALLENGE. Persons of color allowed the privilege of, 33 

CLERK. A slave cannot be, - - - - 23 

COLOR. When the evidence of being a slave, - - 5 

Question of, to be tried by a Jury, _ . . 5 

When the question most usually arises, - - - 6 

CONCEALMENT. Of slaves indicted lor capital offences, unlawful 48 

CONTRACTS. Slaves cannot make, - - - 22 

COSTS. Of trial of slaves, &c., by whom paid, - - 36 

COURT. Competency of witnesses, how tried. - - 7 

How far the verdict concludes, - _ _ 7 

To appraise the slave on conviction, - - - .45 

CRIMES. Of slaves, free negroes, &c. - - • - 28 

DAMAGES. How assessed by the Jury. - - - 9 

DEER. When unlawful for slaves to kill, - - 31, 32 

DERELICT. When slaves may be seized as such, 11 

DESCRIPTION. Of slaves necessary in the Indictment, 46 

EMANCIPATION. How effected, - - - 10 

Copy deed to be given to the negro. - - - 10 

To be made by the Legislature only, - - 11 

Remarks on the power of - - - - 12 

EVIDENCE. How far color is evidence of being a slave, 5 

Of freedom, - - - - - &, 10 

When slaves may testify, - - - - 23 

Of tradincf with slaves, - - - 46 

FELONY. The stealing of slaves, is, - - - 17 

Murder of a slave, is - - - - 19 

52 Index. 


FIREARMS. Not to be carried by persons of color, - 16 

Slaves not allowed to curry or use, - - 25 

Seizure of, from slaves. - - - - 2d 

Mode of proceeding, _ - - - 2d 

FORFEITURE. Of slaves, - - - - 27 

FREEDOM. Uuestion of. how tried, - - 8 

On whom the burden of proof lies, - - - 8 

Entry of, must be made in Court, - - 9 

Evidences of - - - - -9,10 

FREE PERSONS OF COLOR. Entitled to all the rights 

of property, ----- 1^ 

Their disabilities, - - - - " ■^. 

Their rights and privileges, _ - - 13 

What the /er;j?, signifies, - - - - 14, 15 

Not to enter the State, - - - - 16 

Penalty and proceedings, - - - - lb 

Not allowed to carry weapons. - - - 16 

GAMING. With slaves, &c.. unlawful, - - -45,46 

GAOLER. His duties, respecling runaways, - - 37 

GUARDIAN. When and how appointed, - - 8 

Who must have one, and who can be one - - 13 

His relation towards his ward, - - - 13 

HARBORING. Of slaves by slaves, unlawful, - 30, 31 

Of runaway slaves, - - - - 4o 

Penalty for, - - - - - 31, 45 

HIRING. Slaves not to hire houses. &c. - - - 25 

Unlawful to hire to slaves. - - - 25 

Penalty and mode of proceeding, - - - 25 

Master not to hire to slaves their own time, - 26 

Penalty and proceedings, - - - - 26 

Of slaves, by the year, - - - - 43 

The duties, "liabilities,' &c.. of the parties, - - 43 

HUNTING. When unlawful in slaves, - - 31, 32 

Trial and mode of [)roceeding, - - - 32 

IMPORTATION. Of slaves unlawful, - - 26,27 

Penalty and mode of proceeding, - - -26,27 

INDIANS. When declared to be slave)?. - - 5 

Color no evidence of being slaves, - - " f 

Presumed to be free, - - " . . " '^ 

Deemed tchite within tlie meaning of the Constitution, 8 

INSOLENCE.- Of free person of color, how punished. - 13 

Of shives, how punished, - - - ^2 

INSURRECTION. Attempt to raise, how punished, - 30 

JUDGMENT. On issue of freedom, - - 9 

Of the Court to be in writing; - - ' . 

To be signed by the Magistrate and fi'eeholders. - Si 

To be returned to the Clerk's OtHce. - - ' "^"^^ 

JURY. When they ought to find the party to be white, - 6 

When tiiey sliould lind him to be a mulatto, - 6 

When dispensed with, - - - - ' r 

Tlie party may claim a Jury. " ' ' to 

Persons of color cannot be jurors, - - 13 

LEVY. Slaves exempt i'rcm, - - - ~ \^ 

LICENSE. To retail, when granted, - - 47 

Oatli of applicanis fur, - - - - 4i 

In HEX. 53 


LiaUOR. Slaves not allowed to distil; - - 32 

Unlawful to giT-e or sell to slaves, - - - 33, 4G 

Penalt}' and proceedings lor giving to slaves, - 33, 46 

When a slave dies from the eti'ect of the liquor. - 47 

MAGISTRATE. Court of Magistrate and freeholders. 33 

His duties on the trial of slaves, &c. - - - 34 

MAIMING. Of slaves, how punished, - - 20 

Of a white person by a slave, - - - 29 

MARRIAGE. Slaves cannot contract, - - 23 

MASTER. Has the right of protection of his slave, - IS 

In what way he may protect his slaves. - - IS 

Bound to give his slaves sutlicient tood, &,c. - - 20 

Penalty for not so providing them, - - . 20 

Not to hire to slaves their own time, - - - 26 

His rights and liabilities, - - - 43 

His civil and criminal remedies. - - - 43 

When liable for the acts of his slave, - - 4S 

MESTIZOES. When declared to be slaves, - - 5 

Who are so called, - - - - . 8 

Their disabilities, - - - - 8 

MIGRATION. Of persons of color forbidden, - - 15 

Penalty and proceedings, - - - - 15 

MILITIA DUTY. Free persons of color, subject to, - 16 

MISDEMEANOR. Unlawful whipping, &c.. of a slave, - 19 

Wlien slaves are guilty of,, - - - 32 

MULATTO. Who is a mulatto, - - - 5 

The issue of a white woman and a negro. - - 17 

Such mulatto is iree, - - - - 17 

MURDER. Of a slave is felony, - - - 19 

What shall constitute the inurderof a slave, - - 19 

Of a white person by a free person of color. - 28 

Of a white person by a slave. - - - 28 

Of a slave by a slave, - - - - 28 

NEGROES. Their status, rights and disabilities, - 5 

When declared to be slaves-, - - _ 5 

To whom the term is confined, - - - 5 

NOTICE. Of the time of trial to be given to the slave, &c. 34 

OATHS. Not to be administered to persons of color, - 13 

Of Jurors ou the trial of slaves. &.c. - - 34 

OVERSEER. Not to use his employer's slaves, - - 44 

Not to trade with his employer's slaves, . \ . 47 

PARDON. Time allowed for application for, - - 34 

PATROL. How divided and organized, - - - 38 

Who liable to do patrol duty, - - - ,- 38 

Substitutes may be sent, - - - - - 38 

Penalty for failing to do patrol duty, - - - 38 

Duties of Captains of Beat Companies, - - - 38 

Powers, duties and liabilities of the patrol, - - 38, 39, 40 

Not liable to the payment of tolls, - - _ 40 

By whom regulated in towns. &c. . _ _ 40 

Who cannoc be the Captain, - - - - 40 

Form of the ticket to pass a slave. - - _ 40 

Penalty for the default of the Captain, - - - 40 

Treble costs, when allowed, _ - - _ 40 

On Charleston Neck, .... 40.41.42 

r>\ Index. 


PETITIOX. Proceedings by. - • - - - 9 

PENALTY. For the forcible abduction of free negroe.?. - 13 

For not making a tax return. _ - . - 14 

For tlie unlawt'ul migration of slaves. - - - 15, 16 

For not giving food, clothing. &c., to .slaves, - - 20 

For holding unlawful assemblies, - - - - 24 

For iiiring to slaves their own time, _ - - 26 

For the unlav*'ful importation of slaves, - - - 26. 27 

For attempting to in.<5urrections, - - - 30 

For f'.iling to do patrol duty. - - - - 38 

For the default of the Captain of the patrol, - - 40 

For the unlawful beating of slaves, - - - 44. 

For giving or selling liquor to a slave, - - - 33,46 

For giving a ticket to another's slave. - - - 45 

For harboring runaways, - - - - 31, 45 

For gamuig with slaves, &c. - - - - 46 

For trading with slaves. - - - - - 46 

For uidawl'ul interference with slavery. - - -48,49 

POISONING. By slaves. &c.. how punishable. - - '30 

PROHIBITION. When a writ will i,ssue, -' - -6,7 

When made absolute. . _ _ _ 7 

On whom the o,v?f.5p?'ofc«»''/i lies, - - - _ 7 

Vv'hen the decision is conclusive, _ . _ 7 

What may be given in evidence. _ - - - 7 

PROPERTY. Rights of as regard*? free persons of color, 12 

Of slave.s. lielonss to their master, - - - - 21 

PROTECTION. The slave's right of. transferred to the master. 18 

PUNISHMENT. Of slaves and free persons of color. 28. 32 

When the Court may mitigate, _ . _ 29 

Of slaves. &c.. for capital oflfences, - - - 33 

For offences not capital, _ _ _ _ 33 

Of slaves, &.c., by Avhipping. - - - - 35 

TJnlawlul punishment of slaves. - - - 43,44 

RAPE. How punished in a slave, 29 

READING. Slaves not to be taught. 23 

RUNAWAYS. Who may apprehend, 36 

]\iode of proceedino", 36 

To be kept by the Gaoler, &c., 37 

When they ma}' be sold, 37 

How the proceeds of sale are to be applied, 37 

Compensation for apprehending. 37, 38 

To be lodged in the Gaol or Work House, 37, 38 

Duties of persons apprehending, 37, 38 

To he furnished with food. &c. 38 

To be put to labor in the Work House, 38 

Ufilawful to liarbor. ' 45 

Penalty for harboring, 45 

Persons wounded in apprehending them. 45 

SHERIFF. His duties respecting runaways, 36 

SLANDER. How far justification concludes, in an action of, 7 

Nominal damages in an action ot", 8 

SLAVES. Who declared to be such, 5 

Color, evidence of being, 5 

To whom their ott'spring goes, 5. 17 

Are considered as chattels personal. 5. 17 


1— ^>-^v^ 

L\DKX, 55 


SLAVES. How emancipated, ' 11 

Gift to slaves void. 11 

Penalty for the forcible abduction of, 13 

Their civil rights, liabilities and disabilitie.s-. 17 

Stealing of, is felony, 17 

Of tenant ibr life, to finish the crop after his death, 17 

Are exempt from levy, 18 

Should be annexed to the freehold. 18 

Killing of, 19 

To be provided with sufficient food, &c. 20 

Maiming, &c., of slaves, how punished, 20 

Number of hours to worI(, 21 

Not to be abandoned by their master, 21 

When they may acquire and hold property, 21 

Cannot make any legal contract, 22, 23 

Apparel of, regulated, 24, 25 

Not allowed to rent houses, &c. ^« 25 

Not more than seven to travel together, 25 

Not to be brought into the State, 26, 27 

Forfeiture of, 27 

When answerable for crimes, &c. 28 

Trial and punishment of, 28, 29 

Attempt to raise insurrection among. 30 

Stealing or harboring, 30, 31 

Not to trade or traffic, 31 

Guilty of a trespass, how punished, 32 

Allowed the privilege of challenge, 33 

Attornies, allowed to defend, 34 

When they may be lawfully killed, 36 

The hiring of by the year, 43 

Different forms of action for injuries, 43 
Unlawful punishment of, 43, 44, 45 

Unlawful to game with, 45, 46 

When unlawful to give them tickets, 45 

When convicted, to be appraised, 45 

SLAVERY. Interference with, by emissaries', 48, 49 

Penalty for interfering with, 48, 49 

Mode of proceeding, 48,49 

SUNDAY. Slaves not to work on, 21 

TAXES. Capitation tax on free negroes, &c., 14 

Penalty for not making returns and paying, 14 

TENANT FOR LIFE. Slaves to finish the crop after his 

death 17 

TICKETS. Unlawful to give one to another's slave. 45 

TRADING. By slaves in Charleston, unlawful, 31 

Proceedings in cases of, 31 

With slaves unlawful, 46, 47 

With slaves how proved, 46, 47 

By the overseer, 47 

TREASURER. To pay the sum appraised to the master of 

an executed slave, 45 

TRESPASS. Action of, by the guardian of a negro claiming to 

be free, " 8, 9 

In a white man a misdemeanor in a slave, 32 

When the action of, may be brought, 43,44 

^^ Index. 

TRIAL. Of free persons of color, °c 

Of slaves, free neg-roes, &c., 28 33 

Notice of the time of trial to be given. ' 34 

When the Judge may grant a new trial, 34 

New mode of trial of slaves &c., recommended 35 36 

ivtT?in''.A^/!''^ V° ''« ^'^'^« tTied for the same offence, ' 36 
VVHIFPlN^r. See Punishment 

WITNESSES. Free persons of color cannot be ' 13 

WORK. How long slaves shall work durino- the day 21 
WORK HOUSE. Duties of the master respecting runaways36, 37 



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