others V. was null and void, and they refused to admit it in evidence Lindsay and to prove a link in the chain of title derived through the younger son of William Cattell, who had died intestate. After these strong authorities in point, and the clauses in our state constitution, he said, he would not take up the further time of the court upon this ground. Upon the 2d ground, he observed, that even admitting the right of the legislature to pass the act in question, and to authorize the city council to make these assessments, where the rights were equal on both sides, the proprietors of the lots ought to have had an equal choice of the commissioners who were to make the assessments on their property, whereas the city council had thought proper to appoint them all, which was against every principle of right and justice. That the commissioners thus appointed had exceeded their powers, for they had not only made the assessment, but had proceeded to levy and collect the sums so assessed. That this conduct on the part of the commissioners was not warranted by law, for it was a well known rule of law, "that wherever an act of the legislature gives new or ex"traordinary powers, unknown to the common law, such powers must be strictly pursued." These powers by the act were confined to making the assessment only, yet they have taken upon them not only to impose these burthens, but also to levy and collect them, an authority not given them by the act. That this is a mode of proceeding different from the general law of the land, for even in laying on and collecting taxes for the support of government, the assessments were made by the assessors for that purpose specially appointed, but the taxes are levied and collected by the sheriffs of the different districts, who advertise and give notice according to law. Whereas these commissioners, without any express authority for that purpose, proceed to sell and dispose of estates at their discretion. Mr. Holmes, the city recorder, against the motion, in reply, admitted the law as laid down by Judge Paterson in Commission ers. Cowp. 26. 30. Loft, 442. Salk. 547. 555, 556. others V. ers. Lindsay and the Wyoming case in Pennsylvania, and also in Middleton and Bowman's case in South Carolina, that the legislature Commission had no authority to interfere between individuals in relation to their private property, and by an act in a shorthanded way to change the rights of the parties and to take the property from A. and give it to B. This, he said, was against both magna charta and our own constitution. But the power of the supreme authority of the state to lay off and keep in repair roads and highways, for the public use and convenience of the citizens of the country, was the law of the land long before magna charta was ever thought of, or our constitution promulgated. It was a law coeval with civil society and sprung out of the necessities of mankind, when they entered into a bond of union, for convenience and safety, for without public roads and highways, there could be no convenient communication from one part of the country to another, unless men roamed like savages through a wilderness. Hence all nations, at least all civilized nations, had concurred in the exercise of this right of opening roads and highways wherever it was most convenient and proper. In fact, it is a part of the ancient law of the land, recognised by magna charta and confirmed to the state by our own constitution. The cases quoted, he contended, had no bearing upon or application to the one under consideration. The act in this case did not take away the freehold of one man and vest it in another; but as a matter of great public convenience to the city, declared that a highway or street should be opened and made from one part of it to another, and authorized the city council, under whose care the affairs of the city by its charter is placed, to nominate and appoint commissioners to carry it into execution. It was, however, a little remarkable he said, that there should be such a clamour about compensation for the soil, over which this street was to run, as it never had been of any use to the proprietors, the tide having constantly flowed over it twice in twenty-four hours, for ages past; and what was more, it never would be of any value, until this street Was made. It was the very thing, which would make the others V. Commission ers. lots adjoining valuable; for this street was intended to con- Lindsay and nect the commercial parts of the city on East Bay, with the rich and valuable part of it on South Bay, and was to run along the edge of East Bay at low water mark; a communication which had been desired by the inhabitants of that part of the town and their ancestors, for near a century past, and by none so much as by the very men who are now making so much noise about indemnity and compensation. There were no houses nor fences, nor enclosures to be levelled or pulled down; there was not the value of a nail or a plank to be removed out of the way, during the whole space this street was to run. It was as perfectly unoccupied at this day, as any part of the pine barren soil, in the remotest part of South Carolina. Yet this useful public work is to be impeded or abandoned, until the proprietors of lots adjoining can make their market, and get a sum of money out of the public, under the specious pretext of compensation for the right of freehold. He hoped and trusted the court would see this case, in its true and proper light, and not suffer the interested views of the lot owners adjoining this street, to frustrate the general convenience of the city. Mr. David Deas, in support of the motion, said, that the unconstitutionality of taking away the freehold, without the consent of the owner, or proper indemnity, was what he meant to rely upon in favour of the prohibition. He admitted, that for great national purposes, as for arsenals, fortifications, or the like, the freehold of an individual might be taken away, provided full compensation or indemnity was made to the owner. He also mentioned the case of the Isle of Man, which was annexed to the jurisdiction of the kingdom of Great Britain by act of parliament, but full compensation had been made previously to the Atholl family; also the case of Cook, on opening the street to Black Fryar's Bridge, in Cowper's Reports, where sundry old houses were pulled down on being paid for; also the act for opening the Santee Canal, by which the owners of land others V. Lindsay and through which the canal was to pass were to be compensated, &c. All these cases, he said, proved his position, that the power to take private property could only be exercised where full indemnity was made to the proprietors. Commission ers. The Attorney-General, Mr. Pringle, on behalf of the city corporation, in reply, observed, that if this motion on the part of the applicants was to prevail in obtaining the prohibition prayed for, it would cripple the legislature in the exercise of one of the most important prerogatives appertaining to the state sovereignty, that of laying off roads and highways for the convenience of the citizens of the country. It was in vain to dissemble, and say it was a mere city regulation, a matter respecting the police of Charleston. For if the legislature could not, by virtue of its supreme authority in this case, authorize the laying off a new street in the city of Charleston, without a trial by jury to ascertain the value of every man's soil over which the street was to pass, and to fix the compensation that the owner was entitled to, the commissioners of highways, in the different districts throughout the state, could not lay off a new road in any part of the country, without ascertaining by a jury the value of that part of every petty tract of pine barren land through which a public road was to run, or to be opened. And if, in a considerable extent of country, such new road was to go through 100 pieces of land, as many juries must be drawn and summoned, and the value of the land be fixed and ascertained by as many trials, in every one of which, the party would be entitled to an appeal to the constitutional court; not only so, but the same forms and solemnities must be pursued by the commissioners of the roads, with the proprietors of lands, when roads were to be repaired, to ascertain and fix the value of timber to be cut down to make causeys and bridges, &c. and other materials necessary on such occasions. There was no drawing the line on such occasions; either the state must possess this high power and authority, as one of the essential prerogatives of sove others V. Commission ers. reignty, or every inconsiderable freeholder in the country Lindsay and could, when interest or caprice urged him to it, thwart and counteract the public in the exercise of this all-important authority for the interest of the community. The consequences would be, that we should very soon have no commissioners to superintend our highways, nor convenient roads to pass along from one part of the country to another, if they were obliged to submit to all this delay and trouble, not to mention the expense attending this endless scene of difficulties they would have to encounter. He had, there fore, taken some pains to investigate this subject, and to trace it to first principles, as well as he could; and as far as his researches had extended, found that this was a fundamental and inherent right, which the supreme authority of every state possessed, and without which the public convenience could not be promoted or sustained; and one which all civilized societies have exercised, since the origin of civil governments. Vattel, on the right of original appropriation, lays it down, that a state cannot subsist, or administer public affairs in the most beneficial manner, if it has not the power of disposing, on particular occasions, of the property subject to its authority. It may, therefore, fairly be presumed, that when a nation takes possession of a country, the property of certain things is allowed to individuals only with this reserve. The right of disposing of part of the property of individuals for the public good in a state, is what is called the EMINENT DOMAIN. Vattel, lib. 1. ch. 20. s. 244. The same author goes on and says, it is evident that this right in certain cases is necessary to him who governs, (or in a republic to those who govern,) and consequently is a part of the empire or sovereign power, which is to be placed among the prerogatives of majesty, (or sovereign people.) When, therefore, men submit themselves to this empire, they yield at the same time this eminent domain impliedly, even if it is not expressly reserved. Vattel, lib. 1. ut supra, ch. 20. s. 248. Again, he proceeds and says, that this sovereign |