CHIEF JUSTICE HENRY McIVER

BIOGRAPHY

Fourth Chief Justice: 1891-1903

Elected: December 1, 1891
Sworn In: December 1, 1891
Re-Elected: December 1, 1891, January 18, 1898
Died in Office: January 12, 1903

Associate Justice: 1877-1891

Elected: May 18, 1877
Sworn In: Before June 7, 1877
Re-Elected: December 4, 1877, December 1, 1883, November 29, 1889
Resigned: December 1, 1891

Henry McIver served as the fourth chief justice of the Supreme Court. He was elected on December 1, 1891,(1) to fill the unexpired term of Chief Justice William Simpson, who had died on December 26, 1890, leaving the Court without a chief justice for more than 11 months. Because Simpson’s term was to expire on July 29, 1892, the General Assembly immediately followed the December 1 election of Chief Justice McIver with a second vote re-electing McIver to a full six-year term ending July 29, 1898, defeating George S. Mower.(2) McIver was sworn-in as chief justice immediately following his election on December 1, 1891.(3) He was re-elected again on January 18, 1898.(4)

McIver was first elected to the Court as an associate justice on May 18, 1877, filling the unexpired term of Justice Willard, who was elected chief justice.(5) The exact date upon which he qualified for office is not known, but he was sitting on the Court by June 7, 1877, when he concurred in the Court’s decision issued that date in Whipper v. Reed, 9 S.C. 5 (1877). He was re-elected to a full term as an associate justice on December 4, 1877,(6) and again on December 1, 1883,(7) and November 29, 1889,(8) each time receiving a unanimous vote.

McIver’s election as chief justice in 1891 was his second election to the post. He had previously been unanimously elected Chief Justice on December 11, 1879, to succeed Chief Justice Willard on July 30, 1880.(9) Willard, however, disputed that his term was expiring, and he was thought likely to challenge, as he later did, the election at that time of a successor. The election of McIver as chief justice would have left vacant his position of associate justice as of July 30, 1880. McIver could not afford to resign as associate justice immediately to create an earlier vacancy. Some key figures, however, including the state attorney general, questioned whether the Legislature could lawfully fill the associate justice position prior to it becoming vacant. If the legislature attempted to do so, it was thought that the legitimacy of the person selected could be challenged, possibly with success.(10)

Given the political climate of the state and the importance of Chief Justice Willard’s anticipated legal challenge, McIver was unwilling to risk having the Court’s legitimacy challenged at that crucial moment in the history of the Court and of the state. McIver, therefore, declined the position on December 15,(11) and the General Assembly then unanimously elected Governor William Simpson as chief justice.(12) McIver remained an associate justice and was re-elected to that position in December 1883.

It was said, at the time of Chief Justice McIver’s death, that he had published more opinions than any other judge or justice in the history of the United States.(13) He wrote the opinion in every decision rendered by the Court in November Term 1890.(14)

Chief Justice McIver was born in or near Society Hill on September 25, 1826,(15) the son of Alexander Markland and Mary Hanford McIver.(16) He graduated from South Carolina College in December 1846,(17) studied law under his father in Cheraw, S.C., and became a member of the Bar in December 1847.(18) He married Caroline Harrington Powe on June 7, 1849.(19) They had eight children,(20) but he was survived by only three, sons Thomas P. McIver and Edward McIver, and a daughter, Lottie H. McIver Watts.(21) He died in Cheraw on January 12, 1903.(22)

McIver practiced law in Cheraw with his father, who was solicitor (the name given to the office of the state prosecutor in South Carolina) at the time. Upon his father’s death in 1850, McIver was appointed by Governor Seabrook to succeed his father as solicitor until a new solicitor was elected by the General Assembly.(23) In 1853, the office again became vacant, and McIver again was appointed solicitor, by Governor Manning, to fill the vacancy. He then was elected as solicitor by the Legislature in 1857(24) and re-elected in 1861(25) and 1865, serving until the adoption of the Constitution of 1868.

McIver was a signer of the Ordinance of Secession in 1860,(26) and served as a cavalry captain during the Civil War under the command of General Wade Hampton.(27) Although the Court had recognized Hampton’s authority to act as Governor before McIver’s election to the bench, McIver’s first opinion written for the Court as an associate justice in Ex Parte Smith, 8 S.C. 495 (1877), provided an important confirmation of the Court’s position that Hampton was the duly qualified Governor. The opinion is undated but is referenced in newspapers as having been issued by late June 1877.(28)

  1. JOURNAL OF THE HOUSE OF REPRESENTATIVES, STATE OF SOUTH CAROLINA, December 1, 1891.

  2. Id.

  3. The State, December 2, 1891, at p.1.

  4. JOURNAL OF THE HOUSE OF REPRESENTATIVES, STATE OF SOUTH CAROLINA, January 18, 1898.

  5. JOURNAL OF THE SENATE. STATE OF SOUTH CAROLINA, May 18, 1877.

  6. JOURNAL OF THE HOUSE OF REPRESENTATIVES, STATE OF SOUTH CAROLINA, December 4, 1877.

  7. JOURNAL OF THE HOUSE OF REPRESENTATIVES, STATE OF SOUTH CAROLINA, December 1, 1883.

  8. JOURNAL OF THE HOUSE OF REPRESENTATIVES, STATE OF SOUTH CAROLINA, November 29, 1889.

  9. JOURNAL OF THE HOUSE OF REPRESENTATIVES, STATE OF SOUTH CAROLINA, December 11, 1879.

  10. The Newberry Herald and News, January 16, 1903, at p.1.

  11. JOURNAL OF THE HOUSE OF REPRESENTATIVES, STATE OF SOUTH CAROLINA, December 15, 1879.

  12. Id.

  13. Memorial Exercises of Chief Justice McIver, 66 S.C. 547, 550 (January 22, 1903).

  14. Id. at 552.

  15. Memorial Exercises, 66 S.C. 547 at 551, 570.

  16. McIver family papers (Furman University) available at https://libguides.furman.edu/special-collections/mciver-family-papers/biography. U.R. Brooks, 1 SOUTH CAROLINA BENCH AND BAR, at 54 (The State Co. 1908).

  17. The State, January 13, 1903, at p.1; Memorial Exercises, 66 S.C. 547, at 551.

  18. The State, January 13, 1903, at p.1

  19. Memorial Exercises, 66 S.C. 547, at 573. The (Sumter) Watchman, January 14, 1903, at p.5.

  20. The State, January 13, 1903, at p.1; Memorial Exercises, 66 S.C. 547, at 573.

  21. Id.

  22. The State, January 13, 1903, at p.1.

  23. The State, January 13, 1903, at p.1.

  24. JOURNAL OF THE SENATE, STATE OF SOUTH CAROLINA, November 26, 1857.

  25. JOURNAL OF THE HOUSE OF REPRESENTATIVES, STATE OF SOUTH CAROLINA, December 10, 1861.

  26. Memorial Exercises, 66 S.C. 547, at 551.

  27. Memorial Exercises, 66 S.C. 547, at 551; The State, January 13, 1903, at p.1.

  28. The Anderson Intelligencer, June 28, 1877, at p.2.