History of the American BAR

Chapter V

Colonial Southern BAR

South Carolina

In South Carolina, under its charter of 1663, a form of government and an institution of laws, courts and law procedure was initiated, which differed from anything in America. This was John Locke’s celebrated but chimerical Fundamental Constitutions of Carolina, issued in 1669-1670 by the Proprietors. It provided for a most elaborate system of courts of eleven different kinds and jurisdictions; and it contained the-following curious limitation on the courts:

"Since multiplicity of comments as well as of laws have great inconveniences, and serve only to obscure and perplex; all manner of comments and expositions on any part of these Fundamental Constitutions, or any part of the common or statute law of Carolina, are absolutely prohibited."

Owing to their impracticability, few of these Constitutions ever came into actual operation; and after being modified in 1682, they were substantially abrogated in 1698. For many years, there was much doubt as to how far the English law was applicable; and in 1692, the Assembly, in an address to Governor Ludwell, had complained because the court had “assumed to put in force such English laws as they deemed adapted to the Province; but the Assembly conceived that either such laws were valid of their own force or could only be made so by an act of the Assembly.”

In 1712, by a special act, the Assembly adopted the English Common Law as a rule of adjudicature, and also such English statutes (126) as had been selected by Chief Justice Trott as applicable to the condition of the Colony.

No law passed prior to 1682 is to be found on record. The first authority for printing the laws was given in 1712; and the first compilation of the law, made by chief Justice Trott, was published in 1736.

Up to 1683, all judicial business was done by the Governor and Council. In that year, a Provincial Court was established with a Chief Justice appointed by the Proprietor; but it was not until 1720 that any assistant judges were appointed. The Governor and Council became a Court of Appeals. There were few other statutes, if any, relating to courts or their jurisdiction prior to the wholesale adoption of English law, in 1712.


In North Carolina, which became known as a separate Province about 1691 (although not formally made so until 1731), John Locke’s Constitutions were theoretically the frame of government until their abrogation; but in 1715, an act was passed by the Provincial Legislature providing that the Common Law should be in force, “so far as shall be compatible with our Way of living and trade,” and' certain specific English statutes were also adopted. No compilation of laws was made until 1732. A Commission was appointed to revise the laws in 1746, and again in 1776; and the first printed collection of laws was in 1751.

Until 1702, the Governor and Council acted as the Court. In that year a General Court, consisting of a Chief Justice and two assistant judges, was established. The earliest Chief Justice named in the records was the famous Anthony Ashley Cooper, Lord Shafteshury, who exercised the duties of his post through a deputy. Only a few of the Chief Justices prior to 1746 were trained lawyers, and when such, they were English barristers sent from England, the first barrister, William Smith, coming in 1731; but in 1746, a Superior Court was constituted, the judges of which were required by statute to be lawyers. The earliest record of County Courts is in 1693.

Of North Carolina lawyers, little is recorded; and the condition of education in the Colony was unfavorable to the development of native talent.

Early in the Eighteenth Century, however, they were allowed to practise; but the Court ordered that they must be licensed by the Chief Justice and judges; and that no sheriff, undersheriff or clerk should plead as attorney at law. The English statute, 3 James I, c. 7, as to admission and regulation of attorneys, was treated as in force in the Colony.

The only eminent members of the early Colonial Bar were Thomas Barker; Samuel Johnston, a Scotch lawyer; Henry Eustace McCulloch, a barrister of the Inner Temple, who practised in the Province from 176I to 1767; Thomas Jones and Alexander Elmsly, both English lawyers; John Dawson, a Virginian; William Avery, born in Connecticut, a Princeton graduate, and Attorney-General in 1777; Jasper Charlton; William Cumming, and Robert Smith.

In 1777, Iredell became Judge of the Superior Court, resigning the next year, and in 1789 he was appointed Judge of the Supreme Court of the United States.

Contemporary with him, after the Revolution, were Abner Maurice Moore; Archibald McClaine; Alfred Moore, who, born in 1755, a student at Harvard but not a graduate, succeeded Iredell in the United States Supreme Court; William R. Davie, born in England in 1756, a Princeton graduate of 1776, admitted to practise in North Carolina in 1780, and of whom it was said, “if he had superiors in legal learning and close reasoning, he as an orator was inferior to none in the State;” John Haywood, who was born in 1753, became Attorney-General in 1791 and published his Reports in 1799.

Both of the Signers of the Declaration of Independence from North Carolina were lawyers. One, William Hooper, was born in Boston in 1742, a graduate of Harvard in 1760, and a student under James Otis in 1761 the same year in which Otis argued the Writs of Assistance. He came to North Carolina in 1767, and within six years became a leading member of the Bar. The other, John Penn, was born in Virginia in 1742, a student under Edmund Pendleton, and removed to North Carolina in 1774.


No laws were passed by the General Assembly of Georgia until 1755, the Colony having previously been under the arbitrary rule of the Proprietor.

The first court of Georgia, held at Savannah in 1733, was lawyerless; but when Georgia became a Crown Colony in 1752, the Chief Justice was required to be an English barrister. The three assistant judges were usually laymen of high standing in the community, and received no salaries. In 1789, the Superior Court of the State was established.