History of the Office

Founder’s Day Speech

Assistant Deputy Attorney General Robert D. Cook
Friday, February 4, 2005

As one who has been with the Office of Attorney General a long while, I have often noted how many people don’t have a good grasp of exactly what our Office does.

However, if the “rest of the story” is told, the public would realize how important and powerful the Attorney General’s Office really is. How closely involved with the making of South Carolina’s history the Attorney General has been – virtually from the moment the colonial settlers arrived in South Carolina. How some of South Carolina’s most famous historical figures have served as Attorney General. Yes, the Attorneys General of South Carolina have truly walked arm-in-arm with the history of South Carolina.

The Office of Attorney General is far older than the United States itself. By the 16th Century, in England, the Attorney General was the legal officer representing the Crown. The Attorney General also was bestowed responsibility for protecting the public interest in court.

In South Carolina, the Attorney General’s Office was founded on February 5, 1698 with the appointment of the preeminent lawyer Nicholas Trott. Contrary to popular belief, I was not in the Opinions Section then. Earlier in the 1690s, Trott had served as Attorney General of Bermuda. After his service as Bermuda Attorney General for a few years, Trott returned home to London to train formally in the Inner Temple, one of the prestigious universities to prepare lawyers. As Burmuda’s Attorney General, Trott, has been described by historians as having “served ably.”

Trott actually arrived in Charleston as our first Attorney General in 1699. A leading historian has characterized him as the “most learned man in the colony.” Another calls him the “most astute politician in the province.” From the very start, he angered some people, unfortunately, a characteristic of the Office which many subsequent Attorneys General have learned goes hand-in-hand with the need to be independent in the position. Trott, a devout high church Anglican, was a powerful, but controversial figure. As Attorney General, he criticized a dissenter, Governor Blake, and was arrested and ousted for his words. Happily, for Trott, however, the colonial Assembly intervened on his behalf and he was restored to his post of Attorney General. The next year, he was appointed Chief Justice, a position in which he served for a number of tumultuous years. His contemporaries complained he possessed a judicial power “never repos’d in one Man before in the World.” Trott presided over the trial of the famous “Gentlemen Pirate,” Captain Stede Bonnet, who was sentenced to hang.

Following many controversies and clashes, in 1719, as the Lords Proprietors were removed, Trott left as Chief Justice for the private life of an eminent scholar and author. Among his works, was South Carolina’s first Code, known even today as “Trott’s laws,” a landmark in the development of legal codes in colonial America. Trott’s legacy as South Carolina’s first Attorney General, in which he demonstrated strength and independence, is truly enduring, and we commemorate his service today over three hundred years later.

From Nicholas Trott to Henry McMaster, I believe there have been 50 different people who have served as our Attorney General. The Attorney General was originally chosen by joint ballot of the General Assembly. In the second half of the 19th Century, the Office became one elected by the people, first as a two year term. Later, the term was changed to four years in the 1920s.

Some Attorneys General have previously served as Solicitor and a few, like Mr. McMaster, have also been United States Attorney. Our Attorneys General have gone on to be state Supreme Court justices, and one, notably John Rutledge, became Chief Justice of the United States Supreme Court. Others became United States Senators and one or two served as Governor. One former Attorney General, Hugh Swinton Legare, later was United States Attorney General and U.S. Secretary of State.

Following Trott’s auspicious service, over the next three centuries, the Office developed dramatically in size, stature, authority and influence. The Office began as an office of one or two. By 2002, the South Carolina Supreme Court recently described the Attorney General’s duties and responsibilities as

“The chief law officer of the State … [who may] exercise all such power and authority as public interests may from time to time require ….”

Thus, the Attorney General today possesses:

  • constitutional power as the chief prosecutor of South Carolina;
  • statutory power as the chief lawyer of the State; and
  • common law power as the chief protector of the public interest.

Trott’s service was just the beginning of the Office’s place at the forefront of historical events and legal developments. For example, Attorney General John Rutledge went on to serve as a delegate to the federal Constitutional Convention and Chief Justice of the United States Supreme Court. Rutledge helped reestablish South Carolina’s government during the American Revolution after the British captured Charleston in 1780. And, it was Rutledge who was appointed as South Carolina’s only President, possessing virtually dictatorial powers during the Revolutionary crisis.

Attorney General Robert Y. Hayne was the Senator who engaged Daniel Webster in the famous Hayne-Webster debate in 1830. Hayne argued for states rights on the floor of the United States Senate, contending the federal Constitution is a compact and that the states possess the right to nullify federal laws considered in violation of that compact. Webster, of course, argued for the supremacy of federal power.

Attorney General James L. Petigru was one of the leading advocates of the so-called “unionist” position in the State, arguing the federal Union must remain intact. On the other hand, nullifiers and, later, secessionists argued that the union could not be preserved if states rights were trampled upon. Petigru was a minority of one as the War Between the States drew near, making the famous comment that “South Carolina is too small to be a nation and too large to be an insane asylum.”

Several times during Petigru’s 8-year tenure as Attorney General, the issue of federal authority versus state authority raised its head. In one case, a federal Court found unconstitutional the black sailors law requiring the jailing of free black sailors whose ships docked in South Carolina. Attorney General Petigru, the federal Court noted, also believed the law to be patently unconstitutional under federal law and thus would not enforce it. Repeatedly, other South Carolina Attorneys General would exercise this kind of fierce independence as just recently, Attorney General McMaster demonstrated in the “bobtailing” case – taking the position in court that the state law was unconstitutional. Attorneys General have always known the law must be enforced.

In contrast to Petigru’s position, were legal arguments made by Attorney General Robert Barnwell Rhett in the 1830s. Rhett was a “fire eater,” known as the “father of secession.” As Attorney General, he argued the famous “test oath” case before the Court of Appeals – raising the question of the State’s right to nullify federal legislation deemed to violate its constitutional rights. Interestingly, Petigru, by then, back in private practice, argued the other side – contending that the Legislature had no power to require an oath exclusively to the State of South Carolina. Both men made powerful legal arguments, but the Court ultimately ruled more Petigru’s position. The Legislature, unhappy with the Court’s decision, abolished the Court of Appeals through reorganization.

Attorney General Isaac W. Hayne was appointed by Governor Pickens to seek the peaceful surrender of Fort Sumter by federal authorities after this State seceded. Hayne’s attempt to see President Buchanan was rebuffed and the Attorney General of South Carolina fired off an incensed letter to the President of the United States, complaining that South Carolina had been insulted and contending that Fort Sumter belonged to the State , now “a separate and independent government.”

Attorney General John M. Daniel was Attorney General for 26 years. General Daniel was intimately involved in the modernization of South Carolina – helping to build a State highway system – by defending in court all the State’s bond issuances. He was one of first to recommend formation of the Highway Patrol.

Attorney General Daniel R. McLeod was Attorney General for 24 years. Some of South Carolina’s most important legal history happened on his watch. His peers chose him as the nation’s top Attorney General. His 1963 opinion challenging the way state parks were funded led to their closing. General McLeod argued before the United States Supreme Court that the Voting Rights Act was unconstitutional. He had the courage to challenge the constitutionality of the Budget and Control Board and other unconstitutional laws.

Attorney General Travis Medlock – a man I respect tremendously – is a person of true honor and integrity. He took a number of unpopular stands both in the state legislature and as Attorney General. As a “young Turk” legislator, Mr. Medlock confronted the problems of hunger and racial discrimination head-on. As Attorney General, he challenged video poker and its legality just as passionately, when few others did.

He was the father of the State Grand Jury. His appointment and hiring of minorities and women to key leadership positions was both farsighted and progressive. A pioneer in enforcement and interpretation of South Carolina’s Freedom of Information Act, he received an award from the South Carolina Press Association for his dedication and service. Mr. Medlock was the Attorney General who courageously opined that the Confederate Flag flew atop the State House dome without any legal authority.

Attorney General Charlie Condon was the father of the Victims Bill of Rights in the South Carolina Constitution. Mr. Condon also first instituted a no-drop policy in serious criminal domestic violence cases – a great step forward in the protection of women against domestic violence. And he took the position that the Attorney General could sue the Governor in the case of Condon v. Hodges. This is a most important case for many reasons, among them the Supreme Court’s strongest recognition ever of the very broad powers of the Attorney General.

And Attorney General Henry McMaster, like his predecessors, continues to make history. His Pro Bono program in criminal domestic violence is innovative and highly praised. Rightly so. He has won convictions of former politicians and white collar criminals, when most thought there was little chance. He has expanded the State Grand Jury to include securities fraud and is now working hard to include environmental crimes. The bobtailing case, which the Attorney General personally argued and won before the State Supreme Court, is a landmark case.

Yes, the Office of Attorney General is a strong office – one closely associated with history and one which helps shape and make history. A virtual “Who’s Who” in the State’s history have, for over three hundred years, held the Office. These have been persons who, like South Carolina itself, have maintained strong political views and who, like the State, are remarkably independent. Protection of the public interest is the fundamental role of the Attorney General.

From February, 1698 to February, 2005, the Attorney General of South Carolina has protected the citizens of South Carolina. As we move ahead, the Attorney General will continue, in the words of the Supreme Court in Condon v. Hodges, to “exercise all such power and authority as public interest may from time to time require ….” We fulfill this responsibility not always with the recognition or awareness of the public, but with the goal always of the protection of the public. The South Carolina Attorney General is an office rich in history and heritage and one vital to the citizens of South Carolina.

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