The State

1. Connor.

their bounden duty to see that under pretence of prosecuting this right, they did not elude the penalties of the law for offences. Hence it had been the invariable practice in all cases where infamous or corporal punishment was to be inflicted, to commit to prison, till the case could finally be determined by the constitutional court, and in cases of aggravated assaults and batteries, or trespasses, &c. to order much higher and better security to be given by offenders of this latter class, than had been given to answer to the charge originally, that they would personally appear before the judges at the court of appeals, to receive and abide the judgment of that court in the cases submitted to them. By this means, convicted persons of every class of offenders from the highest to the lowest, had this great advantage of being heard by the judges of the land, upon all points or matters of law, in the dernier resort, and the community had its security for bringing offenders to justice, without the one escaping with impunity, or the other being robbed of its object of just chastisement.

The presiding judge laid down the rule in such cases to be this. That in all dubious cases, (under the degree of treason or felony, plainly set forth in the warrant of commitment,) as long as it was uncertain whether the party was guilty or innocent of the charge alleged against him, such was the humanity of the law, that he ought to be bailed. But when a prosecution was so far advanced, as to establish the guilt of the party accused by a conviction of the jury, the probability of innocence no longer existed; on the contrary, the law would and ought to presume him guilty. The discretionary power of the court then ceases, in all cases where infamous corporal punishment is or ought to be inflicted on the accused person, found guilty of the offence.

That from the very nature of man, who was not lost to all shame, there was nothing he would not forfeit of a pecuniary nature, rather than suffer infamy and disgraceful Funishment. Unfortunately, the welfare of society called, in some cases, for such exampies, to prevent the repetition

of offences. In all such cases, therefore, no bail could, or ought to be taken or continued. The defendant must stand committed. There could be no other sufficient security to the community, until his case can ultimately be decided by the constitutional court of appeals. Though it had been usual in cases of assaults, batteries and misdemeanors, where only fine or imprisonment was to be the punishment, to admit persons convicted of those minor offences to bail, for their appearance at the constitutional court, where motions for new trial or in arrest of judgment were made on their behalf, to abide the final determination of such appellate court, which additional bail was generally proportioned to the nature and circumstances of the case, as appeared upon trial.

The motion was therefore overruled, and the defendant ordered into the sheriff's custody.

At the next meeting of the constitutional court of appeals, the two motions in arrest of judgment and for a new trial, were argued by Mr. Holmes on behalf of the prisoner, and opposed by the Attorney-General; but as there were no sument grounds to support either of them, they were both dismissed.

After which, the defendant was sentenced to fine and imprisonment, by the judge who presided on the trial in

the circuit court.

On this occasion the judges took an opportunity of expressing their opinions, in favour of the refusal of the circuit court, to admit a defendant to bail after his conviction, in a case so highly criminal; but admitted the necessity of an exercise of a discretionary power, even after conviction, in cases for lower offences, to bail for the appearance of offenders at the constitutional court of appeals, to abide the final sentence of that court.

Present, BURKE, GRIMKE, WATIES and BAY,

The State

V.

Connor.

District, October, 1796.

Charleston ROBERT LINDSAY and others, proprietors of lots on East Bay, in the city of Charleston, against THE COMMIS SIONERS, for making the new street there, and for assessing the owners of lots to defray the expense, &c. &c.

A prohibition will not lie against commissioners

UPON a motion for a prohibition to restrain the commissioners from making the said street, and assessment on acting in obe- the lot owners to defray the expense.

dience to an act of the le

gislature in laying off a new street in East Bay, in the city of Charleston, although no

Mr. Desaussure, on behalf of the applicants, stated, that they were the owners of the soil over which this new street was to pass, and also owners of the lots on the Bay to the eastward and westward of the said intended new street, and therefore prayed the court to grant a prohibition to restrain compensation the commissioners, appointed by a late act of the legislature, to the lot ow- from proceeding in this undertaking on the following grounds, viz:

has been made

ners, Over

whose soil,

the same is to

pass.

1st. That the act authorizing the said commissioners to ture of the take away their freehold for public uses without their con

The legisla

country is ves

ted with the sent, on full compensation being made to them, or trial by power to pass jury, was unconstitutional and unjust.

laws for laying off roads and highways, in every part of the state and to appoint commission

2d. That even supposing the commissioners had the power under the act to lay off and carry this new street

over their lots, they had exceeded their powers by making unreasonable assessments on the adjoining lots, which they and kept in were about to levy and collect, without due authority for

ers to see

them made

repair, where- that ver they

may think

convenient

without any

purpose.

1st. The act under which they pretend to derive their and proper, authority, was passed in December, 1795. It enacts, “ that compensation "the city council of Charleston, shall have power to appoint to the own- "three commissioners to run out and lay off this street, and lands through to assess the owners of lots near or adjoining to it, in

ers of the

which they

may be run.

Every freeholder holding lands under the state, holds them upon condition of yielding a portion of them, when wanted for the public roads and highways; and the state has a right to appropriate the same, as a part of its eminent domain, to public purposes for the general convenience of the citizens of the state. And this is not against magna charta, but a part of the lea terre, which previously existed, before it was promulgated.

others

proportion to the benefit they were likely to receive by it." Lindsay and Under this authority, the city council proceeded to nominate and appoint William Sommersall, John Champneys and CommissionJohn Mitchell, Esquires, the three commissioners, for carrying into effect the intentions of the legislature by laying off and completing the said street, and making the contemplated assessment.

That the said commissioners, in pursuance of the trust reposed in them, in the month of April last, proceeded to 'lay off the said street and to make the assessment on the lot owners; some at 40 shillings sterling, some at 20 shillings sterling, and others at 15 shillings sterling per foot. That the rule laid down by them was to assess the water lots to the eastward of the street at 40 shillings, because they were the most valuable, running down into the channel, and the lots on the west or inner side of the street at 20 shillings a foot, as they were less valuable than the water lots, and not so likely to be benefited by the street, as the lots on which wharves could be built and extended out so great a distance. That in the month of June last, the proprietors of those lots remonstrated to the city council against these assessments, as unreasonable and unjust, and greatly disproportionate to the relative value of the lots; especially as the water lots could not be of any value whatever, but at an immense expense to the proprietors, by running out and building strong and expensive wharves, while the inner lots would become valuable at little or no expense: and therefore prayed relief from that body under whose direction the street was laid off; reserving, however, every right of seeking redress which the law and constitution gave them, as well for compensation for the land, as against the unreasonable assessment.

In consequence of this application, the city council reduced the assessment on the water lots down to 30 shillings a foot, and advanced on the inner lots west of the street 50 per cent. so as to put the whole upon the same footing; but that part of the memorial presented to them,

Lindsay and praying for a compensation for the soil, they postponed

others

V.

Commission

ers.

sine die.

He then stated to the court, that the applicants meant to rely more particularly, as the real grounds for the prohibition in this case, on the deprivation of their freeholds without compensation, through the intervention of a jury, than on the unreasonableness of the assessment, which, however, they still thought too high; and for this purpose quoted the 9th article, 2d section, of our state constitution, which declares that, "no freeman of this state, shall be "taken or imprisoned or disseised of his freehold, liberties "or privileges, or outlawed or exiled, or in any manner "destroyed or deprived of his life, liberty or property, but "by the judgment of his peers, or by the law of the land,” and the 6th section of the same article of the said constitution, declares, “ that the trial by jury shall be for ever in"violably preserved."

This act of the legislature, he contended, was in direct violation of these great and fundamental principles of the constitution, and had invaded the right of freehold, and disseised the owners thereof, without a trial by jury, or judgment of their peers, against the law of the land; it therefore became the duty of the judges who were the constitutional guardians of the rights of the people, to declare this act as far as it deprives the owners of their freehold estates without compensation, null and void. He then relied and submitted to the judges, the opinion of the case and the federal court in the celebrated Wyoming case, as delivered opinion of Judge Pater- by Judge Paterson, in which it was determined, that the legislature of Pennsylvania "had no right or power to pass

See page 27, of the report of that

upon

a law to determine or take away the right of one of the " contending parties to a freehold, and give it to another." So also in the case of Middleton v. Bowman and others, tried in June, 1792. “Where an act, passed in South Ca"rolina, in 1712, was offered in evidence confirming a tract "of land in the younger son of one William Cattell, then "deceased, to the prejudice of the elder son, who was his "heir at law." Our state judges determined that the same