Front Page Titles (by Subject) South Carolina: 74: Act to Ascertain the Manner and Form of Electing Members to Represent the Province - Colonial Origins of the American Constitution: A Documentary History
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South Carolina: 74: Act to Ascertain the Manner and Form of Electing Members to Represent the Province - Donald S. Lutz, Colonial Origins of the American Constitution: A Documentary History 
Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund 1998).
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Act to Ascertain the Manner and Form of Electing Members to Represent the Province
The text is taken from T. Cooper, ed., Statutes at Large of South Carolina, vol. 3 (Columbia, 1837), 135–40.
By 1721 the government of South Carolina had evolved to the point where the local legislature was a fully functioning institution. Most of the foundation documents of South Carolina—like those of Virginia, North Carolina, and Georgia—had been written and adopted in London, and for this reason there are few that qualify for inclusion in this collection. As each of these four colonies reached the point of self-governance equivalent to that achieved in colonies further to the north, a refounding occurred through acts by the legislature. These acts usually took the form of defining electoral districts, the electoral process, and the relationship between the parts of the legislature and between the legislature and the governor. On the one hand, the institutional structures of the southern colonies had to a striking degree come to resemble those found in the northern colonies. On the other hand, political realities during the development of the southern colonies did not allow as much room for independent local development. Thus, while the institutions were similar up and down the coast, the theory underlying their design was less robust in the south than that articulated in New England and Pennsylvania in particular. As a result, while post-1775 state constitutions had much in common, the theory used to justify the Revolution and undergird later American constitutional development had been rehearsed in public to a far greater extent in the north than in the south—especially in foundation documents. Still, these arguments resonated everywhere in America.
Whereas the choosing members of the Commons House of Assembly for this province by parishes or precincts has been found by experience to be the most just and least expensive method that can be devised, and approaches nearest to the form and method of choosing or electing members in other his Majesty’s dominions and plantations, and not liable to the inconveniencies that attend any other method heretofore used or practiced in this province; therefore, for preserving the same inviolable, we humbly pray your most sacred Majesty that it may be enacted,
i. And be it enacted by his Excellency Francis Nicholson, Esq., Governor, etc., by and with the advice and consent of his Majesty’s honorable Council and the Assembly of this province, and by the authority of the same, that the persons who shall be chosen to serve as members of Assembly after the ratification of this act shall be elected and chosen after the manner and at the places appointed by this act.
ii. And be it further enacted, by the authority aforesaid, that all writs for the future elections of members of Assembly shall be issued out by the Governor and Council for the time being, and shall bear date forty days before the day appointed for the meeting of the said members, and shall be directed to the church warden or church wardens of the several parishes hereafter named, or in case there should be wanted church wardens in any parish then to such other proper persons as the Governor and Councill shall think fit to nominate in the said writs to manage such elections, every one of whom are hereby empowered and required to execute the said writs faithfully according to the true intent and meaning of this act, to which every person shall be sworn by any one justice of the peace for the county, who is hereby required to administer such oath without fee or reward and shall give public notice in writing of all and every such writs two Sundays before the appointed time of election at the door of each parish church, or at some other public place as shall be appointed in the said writs in such parishes as have yet no churches erected, to the intent the time and place of election may be better and more fully made known; which writs shall be executed upon the same days at all places where elections are appointed.
iii. And be it further enacted, by the authority aforesaid, that every free white man, and no other person, professing the christian religion, who has attained to the age of one and twenty years and has been a resident and an inhabitant in this province for the space of one whole year before the date of the writs for the election he offers to give his vote at, and has a freehold of at least 50 acres of land, or has been taxed in the precedent year twenty shillings, or is taxed twenty shillings the year present to the support of this government, shall be deemed a person qualified to vote for and may be capable of electing a representative or representatives to serve as a member or members of the Commons House of Assembly for the parish or precinct wherein he actually is a resident, or in any other parish or precincts wherein he has the like qualification.
iv. And for the preventing of frauds in all elections as much as possible, it is hereby enacted, by the authority aforesaid, that the names of the electors for members of the Commons House of Assembly shall be fairly entered in a book or roll, for that purpose provided by the churchwardens or other persons appointed for managing elections, to prevent any person’s voting twice at the same election; and the manner of their voting shall be as herein after is directed, shall put into a box, glass, or sheet of paper, prepared for that purpose by the said church wardens or other persons, as is above directed, a piece of paper rolled up, wherein is written the names of the representatives he votes for, and to which paper the elector shall not be obliged to subscribe his name; and if upon the scrutiny two or more papers with persons written thereon for members of Assembly be found rolled up together, or more person’s names be found written in any paper than ought to be voted for, all and every such paper or papers shall be invalid and of no effect; and that those persons who, after all the papers and votes are delivered in and entered as aforesaid, shall be found, upon the scrutiny made, to have the majority of votes, are and shall be deemed and declared to be members of the succeeding Commons House of Assembly, so as they be qualified as is hereinafter directed.
v. And be it further enacted, by the authority aforesaid, that the said election shall not continue longer than two days and that the said elections shall begin at nine in the morning and end at four in the evening, and that at adjourning of the poll at convenient hours, in the time of the aforesaid election the church wardens, or other persons, as foresaid, empowered to manage the said elections, shall seal up the said box, glass, or paper wherein are put all the votes then delivered in and rolled up by the electors, as aforesaid, with their own seals and the seals of any two or more of the electors that are there present, and upon opening the poll shall unseal the said box, glass, or paper in the presence of the said electors, in order to proceed in the said elections.
vi. And be it further enacted, by the authority aforesaid, that the said church wardens, or other persons appointed in each parish to manage the elections aforesaid, shall, within seven days after the scrutiny is made, give public notice in writing at the church door, or at such other public places in the parishes that have no churches where the election was made, to the person or persons so elected that the inhabitants of the said parish have made choice of him or them to serve as their representative or representatives in the next succeeding Commons House of Assembly, under the penalty of one hundred pounds current money of this province for his default or neglect therein, to be recovered and disposed of in such manner and form as is hereafter in this act directed.
vii. And be it further enacted, by the authority aforesaid, that the inhabitants of the several parishes in this province qualified to vote for members of Assembly, as is before in this act directed, shall, upon the day of the election, according to the Governor’s and Council’s precept for the time being, meet at their respective parish churches, or at some other public place in such parishes as have not yet any churches erected in them, as shall be appointed by the said precept, and there proceed to choose their representatives according to the number following; that is to say, the parish of St. Philip’s Charlestown, five members; for the parish of Christ church, two members; for the parish of St. John’s three members; for the parish of St. Andrew’s, three members; for the parish of St. George’s two members; for the parish of St. James Goose Creek, four members; for the parish of St. Thomas and St. Dennis, three members, the election to be made at the parish church of St. Thomas; for the parish of St. Paul’s four members; for the parish of St. Bartholomew’s, at such place in the said parish as shall be appointed by the governor and Council’s precept, until the parish church is erected, four members; for the parish of St. Helena, four members, the election to be made at Beauford in the said parish; and for the parish of St. James Santee, with Winyaw, two members. And the said several members who, upon a scrutiny, are found to have the majority of votes, so as they are qualified as is hereinafter directed, shall be and they are hereby declared and adjudged to be the true representatives for the said parish.
viii. And be it further enacted, by the authority aforesaid, that every person who shall be elected and returned, as is before directed by this act, to serve as a member of the Commons House of Assembly, shall be qualified as follows; viz., he shall be a free born subject of the kingdom of Great Britain, or of the dominion thereunto belonging, or a foreign person naturalized by act of Parliament in Great Britain or Ireland, that has attained to the age of twenty-one years, and has been resident in this province for twelve months before the date of the said writs; and having in this province a settled plantation or freehold, in his own right, of a leave 500 acres of land, and ten slaves, or has in his own proper person and in his own right, to the value of 1,000 in houses, buildings, town lots, or other lands in any part of this province.
ix. And be it further enacted, by the authority aforesaid, that any of his Majesty’s justices of the peace returned to serve as a member of the said Commons House of Assembly shall read over to the rest of the members returned to serve in the said house, before they be admitted to sit as such, the last mentioned qualifying clause, and then each member, before he be admitted to sit as such in the said house, shall take the following oath on the holy evangelists. I, AB, do sincerely swear that I am duly qualified to be chosen and serve as a member of the Commons House of Assembly of this province for the parish of , according to the true intent and meaning of this act. So help me God.
x. And be it further enacted, by the authority aforesaid, that if any member or members hereafter chosen to serve in any Commons House of Assembly should die or depart this province, or refuse to qualify him of themselves as in this act directed, or be expelled by the said House of Commons, then and in such cases the said House shall by message to the Governor and Council for the time being desire them to issue out a new writ or writs, and the said Governor and Council shall, on such a message to them presented, issue out a new writ or writs, directed as before in this act is appointed, for choosing another person or persons to serve in the place or places of such member or members so dead or departed this province, or who shall refuse to qualify him or themselves, or be expelled as aforesaid. Which person or persons, so chosen and summoned as before directed, shall attend the Commons House of Assembly, as by the precept is directed, under the same fines and penalties the several church wardens or other persons appointed to manage elections according to the directions of this act are liable to the said act.
xi. And be it further enacted, by the authority aforesaid, that all and every member and members of the Commons House of Assembly of this province, chosen by virtue of this act, shall have as much power and privilege to all intents and purposes as any member or members of the Commons House of Assembly of this province heretofore of right had, might, could, or ought to have in the said province; provided the same are such as are according to his Majesty’s thirty-fifth instruction.
xii. And be it further enacted, by the authority aforesaid, that if any person or persons appointed by this act to manage any election for a member or members of the Commons House of Assembly, as aforesaid, shall willingly or knowingly admit of or take the vote of any person not qualified according to the purpose of this act, or, after any vote delivered in at such election, shall open or suffer any person whatsoever to open any such vote before the scrutiny is begun to be made, or shall make an undue return of any person for a member of the Commons House of Assembly, each person so offending, shall forfeit for each such vote taken and admitted of, opened, or suffered to be opened, as aforesaid, and for each such return, the sum of one hundred pounds current money of this province, to be recovered and disposed of in such manner and form as hereafter in this act is directed.
xiii. And be it further enacted, by the authority aforesaid, that all and every person or persons appointed to take votes, or to manage elections of members to serve in the Commons House of Assembly, as aforesaid, shall for that purpose attend at the time and place of election according as he or they are directed by the said writs and attend likewise on the said Commons House of Assembly the two first days of their sitting, unless he or they have leave sooner to depart, to inform them of all such matters and disputes that did arise or may have arisen about the election of any member or members to serve as aforesaid, or at any place or places where the same was or were appointed to be managed, and shall show to said House the list of the votes of every person returned to be a representative to serve as aforesaid, or which otherwise ought to have been returned as such, if any complaint of a false return has been made to the Commons House of Assembly; and every person appointed to take votes, as aforesaid, who shall omit or refuse to attend at either of the times and places, as aforesaid, shall forfeit the sum of ten pounds current money of this province, to be recovered and disposed of in such manner and form as is hereafter directed by this act.
xiv. And be it further enacted, by the authority aforesaid, that if any person or persons whatsoever shall, on any day appointed for the election of a member or members of the Commons House of Assembly as aforesaid, presume to violate the freedom of the said election by any arrest, menaces, or threats, or endeavor or attempt to over-awe, fright, or force any person qualified to vote against his inclination or conscience, or otherwise by bribery obtain any vote, or who shall, after the said election is over, menace, despitefully use, or abuse any person because he has not voted as he or they would have had him, every such person so offending, upon due and sufficient proof made of such his violence or abuse, menacing or threatening, before any two justices of the peace, shall be bound over to the next general sessions of the peace, himself in fifty pounds current money of this province, and two sureties, each in twenty-five pounds of like money, and to be of good behaviour, and abide the sentence of the said court, where, if the offender or offenders are convicted and found guilty of such offense or offenses, as aforesaid, then he or they shall each of them forfeit the sum of fifty pounds current money of this province, and be committed to jail without bail mainprize till the same be paid; which fine so imposed shall be paid unto one of the church wardens of the parish where the offense was committed for the use of the poor thereof; and if any person offending as aforesaid shall be chosen a member of the Commons House of Assembly, after conviction of illegal practices proved before the said House, shall by a vote of the said House be rendered uncapable to sit or vote as a member of that Commons House of Assembly.
xv. And be it further enacted, by the authority aforesaid, that no civil officer whatsoever shall execute any writs or other civil process whatsoever upon the body of any person qualified to vote for members of the Commons House of Assembly, as before in this act is directed, either in his journey to or in his return from the place of such election, or during his stay there on that account, or within forty-eight hours after the scrutiny for such elections is finished, under the penalty of twenty pounds current money of his province, to be recovered of and from the officer which shall arrest or serve any process, as aforesaid, after such manner and form and to be disposed of as hereinafter is directed; and all such writs or warrants executed on the body of any person either going to or being at, within the time limited by this clause, or returning from the place of such election is appointed to be managed, he being qualified to give in his vote thereat, are hereby declared void and null.
xvi. And be it further enacted, by the authority aforesaid, that every justice of the peace who shall refuse or neglect to do his duty in and by this act enjoined and required shall, for every default, forfeit the sum of one hundred pounds current money of this province, to be recovered and disposed of as is hereinafter directed by this act.
xvii. And be it further enacted, by the authority aforesaid, that in any succeeding Commons House of Assembly, no less than nineteen members duly met shall make an House to transact the business of the same; and for passing any law therein, there shall not be less than ten affirmatives; nor shall a less number than seven members of the said House met together have power to adjourn, which number are hereby declared to have power, in the absence of the speaker, to choose a chairman to adjourn the members from day to day and to summon by their messenger any absenting member or members to appear and give their attention in the said House.
xviii. But forasmuch as, by the great distance of the habitation of several of the members of Charlestown, through bad weather and other accidents it may often happen that such a number may not meet to make an adjournment, be it, therefore, enacted, by the authority aforesaid, that in case none of the members of the Commons House of Assembly, or a less number than seven of them, should appear in the said House according to the directions of the writs appointing their first meeting; or to their last prorogation or adjournment, that then and in such case it shall be and it is hereby declared lawful for the governor for the time being, with the advice and consent of his council, to name a further day for the meeting of the said Commons House of Assembly, and that the said House shall not be dissolved by their not meeting as aforesaid, any law, custom, or usage to the contrary thereof in anyway notwithstanding.
xix. And be it further enacted, by the authority aforesaid, that whosoever for the future shall be elected a member to serve in the Commons House of Assembly, before he be permitted to sit and vote in the said house, shall further qualify himself for the same by taking the usual oaths and make and sign the declaration appointed by several acts of Parliament of Great Britain.
xx. And be it further enacted, by the authority aforesaid, that all the fines and forfeitures mentioned in this act and not before particularly disposed of, the one-half thereof shall be to his Majesty for the use of the poor of the parish of St. Philip’s Charlestown, to be paid to the church wardens of the said parish, and the other half to him or them that will sue for the same by action of debt, suit, bill, plaint, or information in any court of record in this province, wherein no essoign, protection, privilege, or wager of law, or stay of protection shall be admitted or allowed of.
xxi. And be it further enacted by the authority aforesaid, that this present General Assembly shall determine and be dissolved at the expiration of three years next after the date of the writs issued out for calling the same, and that every General Assembly hereafter called by virtue of any writs, as aforesaid, shall determine and be dissolved every three years next after the date of the respective writs by which they were called, except sooner dissolved by the Governor.
xxii. And be it further enacted, by the authority aforesaid, that the sitting and holding of General Assemblies shall not be discontinued or intermitted above six months, but shall within that time, from and after the determination of this or any other General Assembly, or oftener if occasion require, new writs to be issued out by the Governor for the time being for calling, assembling, and holding of another General Assembly.
xxiii. And be it further enacted and declared that this present Assembly, having been elected and called together by virtue of his Majesty’s royal commissions and instructions to his Excellency Francis Nicholson, Esq., his Majesty’s Governor and Commander-in-Chief of this his province of South Carolina, shall in all things whatsoever be deemed and held to be a true and lawful Assembly, and all acts and ordinances duly passed by them, by and with the consent of his Majesty’s honorable Council and assented to by his Excellency, shall be deemed and accounted laws and orders of the said province, anything in any former act of this province heretofore made notwithstanding.
xxiv. And be it further enacted, by the authority aforesaid, that all former acts of Assembly of this province relating to or concerning the elections of the members to serve in the Commons House of Assembly be, from and after the ratification of this act, repealed, and they are hereby declared void and repealed.
Charlestown, [...] 19, 1721.
Assented to by Francis Nicholson, Governor