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REPORT
ON
A DIGEST OF THE LAWS,
BY
JUDGE BURKE.
JANUARY 24, 1789.
PRINTED BY ORDER OF THE GENERAL ASSEMBLY.
COLUMBIA, S. C.
PRINTED BY 1. C. MORGAN.
STATE PRINTER.
1 850








REPORT.
SIR:-When I had the honor, on Saturday last, to lay the Digest of
the Laws before the House, as I could not foresee that the nature and
design of it could have been so much misunderstood, or such opposition
made against it, and not being a member of the House, I came of course
unprepared to give information on the subject of it.
In order, therefore, to enable the House to form some judgment of the
system, and the expediency of attending to it, I shall endeavor to give a
few outlines of the principal parts of it, and explain the manner in which
it is executed.
To show how necessary it was to reform the Statute Laws of this State
into a regular system, so as to render them easily known and understood
by the people, I need only point out the perplexed and confused condition
of them at present.
Many of our Acts of Assembly, and English Statutes made of force
here, are grown obsolete, or out of use by the length of time, the alteration of circumstances; and numberless Acts, by the emancipation of the
country from the regal government; many Acts, some wholly and some
in part, are expired, and others repealed by subsequent Acts, crossing and
contradicting each other. Several Acts, neither contradicted by subsequent ones, nor become obsolete, yet are rendered useless by subsequent
Acts, enacting the same thing over again, with alterations and amendments; whilst those that are in force are scattered up and down our code
without order or connection, and intermingled with those others that are
expired, repealed or become obsolete.
An incredible number of British Statutes (upwards of one hundred and
eighty, and of at least five times the bulk of the present Digest, to speak
within compass,) are enforced only by their titles and sections, and only to
be found scattered here and there in the English Statute Book. And thus
the laws of this country, on which depend the lives and property of the
people, now lie concealed from the eyes of the citizens, mingled in confused chaos under a stupendous pile of old and new law rubbish, past all
possibility of being known, only to the Law professors. I will venture to
aver that there are but very few of our lawyers that have all our laws,




4
or can point out in all cases which of them are in force or not. The
ablest of them could have separated the grain from the immense heap of
chaff without much time and labor in searching for it.
On the establishment of peace, the first Assemblies that sat after the
evacuation, soon discovered a spirit of inquiry, and began to examine into
the state of' our laws and police of the country. And viewing the revisal
and reform of them as an object of the greatest moment, they passed the
Act, in 1785, appointing Commissioners to digest them. Whatever some
gentlemen may think of the matter, in my humble opinion it does great
honor to the people, and will, I trust, convey to future time a noble testimony, that their wisdom in peace was not inferior to their gallantry in
war; for, after establishing general liberty for themselves, their next first
care was to reform their laws into a regular system, in order that their
posterity might participate in the blessings earned by the toils and dangers
which they had passed through.
However, all this confusion of our laws is not without its advocates, for
the very attempting at a remedy condemned by some gentlemen.
That the Digest is not an innovation, nor the groundwork of our laws,
plowed up, as it were, and planted over again with new hints and schemes
of the Commissioners, as some object, is what I shall endeavor to show.
One of the principal traits of it is the arrangement which the Commissioners have made in the Judiciary, which, before I explain, it will be
necessary to take a short view of our District Court Act, and the present
mode of administering law and equity throughout the State.
The slightest survey of that Act will show that, though it was beneficial when forcibly extorted (for extorted it was) from the British administration by the people of the interior country in 1769, yet at the present
day it is very inadequate to the business of' administering justice through
this extensive country, and that from a variety of causes; some derived
from the circumstances of the late Revolution, others from the increasing
population of the interior country, the intended removal of' the seat of
government, and other reasons. Let us examine this matter a little. All
writs then were, and now are, made to issue frorn the Clerk's Office in
Charleston, and there returnable; for if a man residing as far back as the
mountains be served with a writ, he must enter an appearance in town,
or judgment, right or wrong, goes against him. The writ being returned,
the pleadings are conducted and issue made up in town; then the whole
proceedings are sent to the District Court for the trial of the issue; then
to Charleston, where judgment on the verdict is entered, from whence
execution is to issue, and then again to be returned to town.




5
I do not think it uncandid to suppose that all this roundabout, expensive mode of administering justice in a widely extended, growing country,
is much better calculated to promote some other interest than the ease,
convenience and interest of the people. The Court of Chancery remains
pretty nearly on the old footing. It hath undergone some reform, yet for
all that, no one can now venture into it for the recovery and protection of
his property, unless of considerable value, so that the pool- class of citizens are shut out from the sanctuary of that Court, owing to its grievous
fees, and the fatigue and expense of attending in town. And in the upper
country, the property of nmany orphans is left to the precarious integrity
of kindred, while executors and administrators embezzle and consume it,
past the power of prevention.
To remedy these and other hardships too tedious to enumerate, a new
arrangement is proposed in the Judiciary system. The Court of each
District is made a Court of Record, with original supreme jurisdiction,
both civil and criminal, and the registries of those Courts are organized
on that system; but in order to preserve a uniformity of decision and
practice throughout all the Courts, a Court of Errors and Motions is instituted to be held before the Circuit is ended, at Columbia, the seat of
government, where matters of law resulting from the proceedings of that
Circuit, such as motions for new trials, special verdicts, &c., will be argued.
We have vested the jurisdiction of the Chancery in the Supreme Courts,
but in order that the Legislature and people may judge for themselves of
the two modes of administering equity, a duplicate system is laid before
you, and also another for a Court of Appeals-which to institute, as the
last resort in important cases, it was conceived to be the interest of the
community.
We have attempted a reform  in the Jury law, which I trust will be
better adapted to the convenience of' the citizens than as it stands at
present. The Judges on Circuit have frequent opportunity of seeing
striking examples of the oppressive mode of fbrming Juries in the country under the old Jury Act, notwithstanding that Act has a very plausible
appearance.  In Districts of great extent and thinly inhabited, the drawing and impanneling one hundred and eight persons to attend Court as
Jurors, creates such difficulty in summoning, and expense to the people
in attending, that very often we could not make a Jury, if the Council
for the Suitors did not consent to Voluntary Jurors. There are so many
poor illiterate people balloted for in the outer Districts, who are altogether
unable to bear the expense of attending or to procure even a lodging, that




6
we see numbers of helpless men in the depth of winter and fiercest
weather, camping out in the woods during the Sitting of the Courts, and
who are dragged from home through mere timidity and indigence, being
unable to pay the fine, so that the most important and sacred duty of our
Judicature, the trial by Jury, which calls for men of independence and
capacity, is evaded by the rich, who are able to pay their fines, and committed generally to the uninformed part of the community, often unacquainted with the English language. Some amendments are therefore
offered with great deference.
One short plain Law is presented, relating to crimes and punishments,
and arranged pretty nearly in the order laid down by Judge Blackstone.
In many cases where the punishment of death was deemed heretofore too
cruel and sanguinary, we have recommended banishment for a limited
time, under the expectation that Government would be authorized to
agree with some foreign power for the purchase or reception of offenders:
As to their labouring on Public Works, in such a country as ours.'We
think it difficult, if not at present impracticable, with so many means of
breaking from confinement, and the facility of concealment in our extensive woods and swamps.
We present a reform respecting the Fees of the Professors of the Law
and of Public Officers-the Fees of the Judges of the Supreme Courts.
We abolish altogether, as it was thought repugnant to the nature of his
office and dignity of his character, for a Judge to be interested in the multiplicity and duration of suits in the Court where he presides, besides the
indecency of frequent contentions about fees with the officers who collect
them; but we have made it a part of the Bill of Rights to allow the
Judges moderate but sufficient salaries to secure their independency.
After giving these few short outlines of the work, for I fear to trespass
on the patience of the House to enter into further particulars, I shall pass
on to explain in a few words the manner in which it is executed.
The Commissioners knew that the matter of our Statute Law, was in
itself excellent, but in the mingled mass of confusion it was in, it required
immense labor to separate the pure ore from the dross and refuse. To
do this, we, with the power of our commission in view, took all our own
Acts of Assembly, or British Statutes made of force, and the parts and
clauses thereof which related to the same subject; and the clear Law so
selected and weighed, we arranged into one compact plain uniform Act;
cutting off the fatiguing preambles and shameful tautologies, with long
string of superfluous words and phrases now in use, which only serve to




7
disgrace our code, increase its bulk and perplex the meaning; and we
retained as much as it was possible, the identical words and sentences of
the Laws from which we made the selection; for it was apprehended that
if different words and phrases were substituted, new interpretations and
uncertainty would of course ensue.
The style that is in general aimed at, is a plain, concise and clear
one; and particular attention was devoted in digesting such Laws as
more immediately respect the liberty, lives and property of the citizens;
whether passed in the present generation or descended to them from their
ancestors. In many instances, British Laws and parts of Laws, not in
force, and some selected from the codes of other States, we have engrafted
into our own stock; but on this, as on every other occasion, we endeavored
to adapt them to the local circumstances and situation of our country,
having always in view the operation and police of the common law, and
strictly attending to the spirit and principles of our popular government.
In the law of descents, the right of primogeniture is lopt off, with sundry
other decayed branches of antiquated feudal policy.
I believe the work contains pretty nearly every Act that merits re-compilement, or to have a place in a system of this nature. If any such are
omitted, they are but few in number, and I think still fewer that will be
deemed altogether useless, except about fourteen laws upon subjects that
come within the jurisdiction of the Federal Government. However,
these are also delivered to the House. Some laws in the arrangement
made by Mr. Pendleton, in the country last summer, are missing-a law
for the admission of attorneys, an escheat law, and one or two others,
which I shall digest anew, and lay before the House.
That no mistake and errors will be discovered in this production, is what
I am not so idle as to suppose. In the first place, the undertaking was
an arduous one, and required the first abilities and industry; and in the
next, the hope to arrive at perfection in a work of this nature, is as vain,
as to think of meeting the approbation of every one, considering the discordant opinions prevailing among us, on the subject of our internal
policy. If the several Bills are moulded into such form and technical
arrangement, as to prepare the subject of them for debate and the result
of the Legislature; any material errors, defects, or mistakes in copying
of the work, will be easily seen and remedied, in the reading through
both Houses.
Perhaps there may be some want of connection of the parts in some
places of the work, chiefly owing to the frequent intervals of Mr.




8
Pendleton's absence on account of his health, for the work was pretty
equally divided between the three Commissioners, and Mr. Pendleton
was so apprehensive of this want of combination, that he gave it a further
revisal in the country during last summer and fall, to blend it together
and link the wl],ole in the connection I speak of.
I know it is urged against the Digest, that it is interwoven with the
County Court system, which not having produced all the good ends the
advocates of the measure expected, the Digest, they say, will be useless;
in answer to which, I beg leave, sir, to observe, that whether County
Courts be rejected, or undergo a modification, the work on your table
will not be much less practicable; the matter and substance of it will be still
the same; and any of the Commissioners could, in a few days, assimilate
the whole to any alteration which County Courts may undergo, or in
case of their entire repeal or suspension.
Upon this institution-of County Courts-I beg leave to offer one observation: I think, with submission, that this business requires the most
serious attention of the Legislature; for if the upper country will not relinquish, nor the lower embrace that system-if it be not so organized as
to answer alike in every part of the State-a police so different within
the same community, may, I fear, tend to establish a sort of legal division
between the Eastern and Western inhabitants, and prevent the country
from cementing together into that close union of all its parts, which, to
bring about, should be the wish of every good man among us.
And here I cannot pass without making a remark concerning our late
associate, Mr. Judge PENDLETON, who is now no more. The zeal of
that able magistrate in favor of County Courts flowed, I believe, from the
most pure and honorable motives. If the measure hath fallen short of his
expectations, it goes only to prove that the finest talents, a mind highly
cultivated, and combined with honest intentions, are not always sufficient
to exempt a human creature from being mistaken.
As for my own part, whatever may be the fate of this production of
our labors, it shall, during my life, be the most ardent wish of my heart
that my fellow-citizens and their generations may for ever enjoy, under
equal laws and liberty, every public and private happiness.
I have the honor to be, sir, with respect,
Your most obedient, humble servant,
XADANUS BURKE.
The Honorable JACOB READ, Esq.




























































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