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chase of arms, drums, colours and other articles necessary for military purposes. And that all fines imposed by a regimental court martial, should be paid over to the commander of the corps, or regimental paymaster, for the use of the regiment generally, and its contingent expenses. That all offences committed by non commissioned officers and privates, were to be tried, and fines inflicted by the majority of the commissioned officers of the company to which they belonged, or in which they were enrolled ; That all officers from the major generals down to ensigns, were to be tried by officers of different grades, agreeably to their rank, and the fines imposed by the different courts martial on such officers, it was admitted, ought to be paid over to the commanding officers of the different corps, or pay-masters appointed to receive the same, for the use of the different militia regiments. [See sections 48, 49, 50, 2 Brevard, 54.]

Mr. justice Bay delivered the opinion of the court.

I have, since the argument, given the subject the best consideration I could, and have looked into the different militia acts, in order to find out the true intent and meaning of the legislature, in regard to the appropriation of the different fines imposed by those acts; and after the most attentive and diligent research, I am sorry to say, that there is a great deal of obscurity and some contradiction in the different clauses respecting such appropriation. The first clause relied upon in favour of the motion, was the 45th clause of the act of 1794, which declares that “all fines which shall be imposed in any regiment, corps, company or troop, shall be paid into the hands of the pay-master or person acting as such, of such regiment, corps, company or troop, and be paid and appropriated by warrant under the hands of a major part of the field officers, or commanding officer of the corps, or captain, or commanding officer of the company, as the case may be, for the purpose of providing colours, drums, bugles, fifes and trumpets for their respective battalions, corps, companies and troops, &c." Now, according to this clause, there are three classes of pay-masters to whom these fines are to be paid.

1st. Into the hands of pay-masters of regiments.
2d. To pay-masters of companies.
3d. To pay-masters of troops.

It is impossible that all the fines can be paid to all three of those pay-masters; for if they are paid into the hands of the pay-masters of regiments, they cannot be paid to the other two classes of pay-masters of companies and troops ; and so in like manner, if they are paid into the hands of either of the other two pay-masters, nothing can be paid to the regimental pay-master: the companies will get the whole. Hence,

the evident obscurity and apparent contradiction in the clause itself, in making the same thing payable to three distinct classes of men for the same purposes. And this appears to me to have given rise to the ingenious construction given by the counsel in the argument in favour of this motion, in order to give some kind of consistency to the clause in question, viz: That all fines inflicted by company courts martial for all defaults or neglects committed by the noncommissioned officers and privates of every description, should be paid over to the pay-masters of the companies or troops in which they were committed ; and all fines inflicted on commissioned officers of every grade, should be paid into the hands of the regimental pay-masters for the use of the regiments ; thus making an evident distinction between the fines arising from the default and neglect of the commissioned officers of the regiment, and those arising from the defaults and neglects of the noncommissioned officers and privates, which, no doubt, would make a prodigious difference in the aggregate amount in the course of a year. The clause, however, in the act, is perfectly silent as to this separation and division of fines inflicted by regimental and company courts artial. It does not say that there shall be any distinction between the fines inflicted by regimental and company courts martial, that one class of fines shall be paid over to a regimental pay-master, and another class paid over to the pay-masters of companies or troops (which includes those of every kind or degree) in any regiment, company, corps or troop, shall, in the first place, be paid over to tne pay-master of the regiment, and then to the pay-masters of the companies and troops, as the case may be, &c.

There is no separation or division in the act; the whole or none must be paid to one or other of the pay-masters mentioned in the clause. Now, the great question in this case is, to which of them are these fines to be paid? And I candidly confess, that I find great difficulty in giving a direct and positive answer to the question. If I were a legislator, and was asked the question, to which of them ought these funds to be paid over, I should not hesitate a moment in saying, that the good and prosperity of the whole corps or regiment ought to be preferred to the aggrandizement of any one company before or over another, but that the whole ought to be put upon the same footing to make one efficient complete corps or regiment; and that all the funds in the regiment ought to be appropriated to that general purpose. My judicial functions, however, preclude me from giving any such answer to a question of a legislative nature, in the present instance, and I find myself greatly relieved from the embarassment under which I laboured in answering the above question, by resorting, in the present instance, to military usage, as the best solution and expositon I can give to the point now before me; for it came out in the argument against the motion, that it had been the usage and practice ever since the year 1794, when the act passed and the 16th regiment was organized, to pay over these fines into the hands of the regimental pay-master only, for the use of the said regiment, and this was admitted to be a fact by the counsel for this motion. Here then is a military usage for 27 years, a period more than long enough to establish a prescriptive right, and give to a custom the force of law, for 20 years will establish a prescriptive right; and this construction was given by military officers, who ought to be the

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best judges of military law, soon after the act passed and came into operation; and it has uniformly been acquiesced in throughout the State of South-Carolina, to the present day; and this is the first time it ever was called in question In looking further into the militia laws of the state, I find that this construction, given by the officers of the regiment soon after its organization, was sanctioned by legislative authority in the year 1813, nineteen years after the act of 1794 bad gone into operation. For it is expressly declared in the 11th clause of the act of 1813, amending the militia laws of the State, “that all fines collected as above, shall be paid into the hands of the pay-master of the regiment to which the delinquents shall respectively belong." There is no doubt or obscurity in this clause, which was an amendment of all former militia acts then in force, and it is the last law upon the subject. This act, therefore, in my opinion, ought to have a governing influence over all the regiments in the Sate, as it removes all the doubts and obscurities respecting fines, in all the previous acts, and is in exact conformity to the military usage above mentioned. I am therefore of opinion, after a full consideration of this case, that the motion for the prohibition should be rejected, and that the collector of the fines should pay the amount into the hands of the pay-master of the 16th regiment, for the use of the same. The judges, after the report of the foregoing case, were unanimously of opinion there were no grounds for the prohibition, and that the motion was very properly discharged. They were further of opinion that these kinds of cases of a military nature were very properly of military cognizance, and ought like all others of the like nature, to be submitted to, and determined by, the military tribunals only, and that the court of Common Pleas ought not to sustain any cognizance of them, uniess in cases where the courts martial step out of their jurisdiction, and take cognizance of cases which are not within the meaning and purview of our militia acts.


ACT of May 20, 1748. Grimke's Public Laws, 216. An Act limiting the time for commencing prosecutions for the

recovery of penalties and forfeitures, imposed by acts of the General Assembly of this province, the time not limited by such acts.

268. SEC. 1. Whereas, many acts have been and may be passed by the General Assembly of this province, imposing penalties and forfeitures upon the offenders against such acts, without limiting the time for commencing prosecutions against such offenders, Be it enacted, that in all and every case, where any penalty, fine or forfeiture whatever hath been or shall hereafter be inflicted or imposed, by any act or acts of the General Assembly of this province, already passed or hereafter to be passed, and the time of prosecuting the offender or offenders against such act, not thereby provided, no information, action, suit or prosecution, shall be had, issued, brought or commenced against the offender or offenders, against any such act or acts, for or in respect of any such penalty, fine or forfeiture, unless the same be done within six months after the passing of this act, if the offence hath been already committed, and within the like

space of time after the offence commitied for the future; and all and every offender and offenders against any such act or acts, shall not from thenceforth be subject or liable to any penalty, fine or forfeiture which may thereby be inflicted or imposed, any law, usage or custom to the contrary thereof, in any wise notwithstanding. Sec. II.

And it is enacted and declared, That this act shall be a public act, and all courts and magistrates in this province, are to observe the same, without special pleading.


ACT of Dec. 19, 1827. Pamphlet edit. 57. 269. Mileage from court-house to defendant's resi

dence, or place where found, going, but not

returning, per mile, Commitment and release of prisoner,

50 Serving bench or other warrant,

100 Dieting white persons in jail, per day,


5 cts.

Bringing up a prisoner on habeas corpus, to be paid by prisoner if able, if not, by the State,

100 cts. Commissions on all sums under $300, 2 per cent. on all

sums over $300, 1 per cent. For serving execution against the body of defendant, 150

FEES OF CONSTABLES. RESOLUTION, 1823. Pamphlet edit. 146. 270. Serving a warrant,

54 cts. Summoning a witness,

21 Summoning a coroner's jury and witnesses, all things inclusive,

214 Levying an execution,

21 Poundage, or commissions, on all sums levied, 5 per

cent. Mileage, in all criminal cases, attachments, and levying

executions, and in no other cases, for each mile, but not for returning,


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