
    The State v. John Hudnal, et al.
    Where a declaration in prohibition set forth, that in the trial of a negro slave by justices and freeholders, under the Act of 1740, unauthorized individuals had tried the slave, and that testimony was received on the trial, in opposition to the rules of the common law; to which there was a general demurrer : — Held, that the plaintiff must have judgment, and a writ of prohibition issue, as the demurrer admitted the truth of facts on which a prohibition ought to be awarded.
    It is not necessary that the ground on which the prohibition is awarded should arise on the face of the proceedings of the Inferior Court.
    Where the matter suggested for a prohibition appears on the face of the proceedings of the Inferior Court, an affidavit of the truth of the suggestion is unnecessary ; where it does not so appear, it is essential that the suggestion should be verified by affidavit.
    Motion for a writ of prohibition.
    
      On the 23d day of December, 1819, on application before Mr. Justice Gantt, at Chambers, the following order was obtained, viz.:
    
      At Chambers — Columbia.
    
      Ex Parte, A. Silliman — In the matter of negro Manuel.
    Whereas, A. Silliman, the alleged owner 'of negro Manuel, committed before John Hudnall and William Vaughn, acting as magistrates, and Warner Macon, ^Hartwell Macon and Joshua Spears, as freeholders, on a charge of administering poison to Roger Parish, hath made application before L . me, at Chambers, this 23d day of December, Anno Domini, 1819, for a writ of prohibition, to restrain further proceedings on the judgment which has been given on the trial of the said negro Manuel; and the said A. Silliman, by his suggestion on oath, having set forth certain matters as true, tending to show, that in the trial which has been had on the charge exhibited against the said negro Manuel, the same was Coram non Jadiee, by reason that the said John Hudnall and William Vaughn, not having qualified according to law, as justices, were unauthorized to act in the capacity of ju'stices on the said trial; and that William Macon, not being a freeholder, was alike unqualified to set upon the trial of the said case ; that in the progress of the trial, the directions of the Act of Assembly, in such case made and provided, were not pursued by those who acted as a Court upon that occasion; and that they did moreover depart from the established principles of the common law, by receiving in evidence the declarations of J ohn Hudnall, neither given upon oath, nor in the presence of the accused. And whereas, the said John Hudnall and William Vaughn have failed to appear this day at 12 o’clock, pursuant to a notice, sworn to have been given by said A. Silliman, to show cause, if any they could, against the granting a prohibition. And the causes set forth in the suggestion of the said A. Silliman, appearing to mo sufficient to justify further investigation in the premises, more especially to restrain any innovation as to the inadmissibility of testimony against the rules of the common law, in a trial of this solemn nature, which goes to affect the life of the party accused.
    In order, therefore, to a due and solemn examination of the several grounds of complaint, as set forth in the suggestion of the said A. Silliman, it is ordered, that all further proceedings on the judgment, rendered by the said Court, be stayed, until examination be had ‘"'by the Court of Sessions, r#,0, on the grounds of complaint, alleged in the suggestion of A. Silliman. L And it is further ordered, that the said A. Silliman do declare in prohibition against the next sitting of the Court of Sessions, to be h olden for Sumter district, setting forth therein the facts which have been by him alleged in his suggestion aforesaid; and that copies thereof be served upon the several persons who composed the said court, to the intent that they may be made defendants therein, and may, by their plea of defence, justify, if able so to do, the proceedings which have taken place, in order to the awarding a writ of consultation.; or otherwise, if the facts shall, on trial, be found true, and established by the verdict of a jury, that in such case, a writ of prohibition may be awarded. And it is further specially ordered, that the said A. Silliman do file his declaration in prohibition, in time for the persons hereby intended to be made defendants, to put in their defence, so that the case may be regularly at issue, by the meeting of the Court of Sessions, next to be holden for Sumter district, as aforesaid, in order to as speedy a decision upon the case as the rules and practice of the court will admit. And the clerk of the Court of Common Pleas and Sessions, for Sumter district, is hereby ordered to make out copies of this order, to be certified under his hand and the seal of his office, and place the same in the hands of the sheriff of the said district, to be served upon the parties concerned, without delay.
    Given under my hand, at Columbia, this 23d day of December, Anno Domini, 1819.
    RICHARD GANTT.
    
      In pursuance of this order, a declaration in prohibition was duly filed, setting forth, among other things, the following special circumstances, contained in the suggestion, viz., that John Hudnall and William Yaughn, acting as justices, but without being so in truth and reality, and Warner Macon, and others, *4.991 aci,inS as freeholders, but not being such, tried a negro, *named Manuel the property of Alexander Silliman, on a charge for administering poison to Roger Parish, and before whom the said negro was convicted, and sentenced to be executed.
    It was further alleged in the said declaration, that the negro had not been tried within the time which the law prescribes, after being apprehended; that the master had not been notified of the accusation, and that on the trial of the slave, the testimony of Roger Parish, the prosecutor, was admitted without his being sworn.
    To this declaration, the defendants filed a general demurrer.
    Mr. Justice Colcock, before whom the case was tried, at October Term, 1820, sustained the demurrer, whereby the writ of prohibition was virtually denied.
    An appeal was made to this Court, to reverse that decision, and that a writ of prohibition do issue to prevent the execution of the sentence, on the following grounds, viz.:
    Because the general demurrer, admitting the facts alleged to be true, the said negro was not legally convicted, inasmuch as the Court which tried him was not legally constituted ; that the owner of the slave ought to have been notified of the trial; that the trial ought to have been had within six days ; and that Roger Parish, the witness, ought not to have testified against the accused without being sworn.
   The opinion of the Court was delivered by

Gantt, J.

The clause of the Act, establishing this mode of trying slaves for offences made capital, is prefaced in these words : “ Whereas, natural justice forbids, that any person of what condition soever, should be condemned unheard, and the order of civil government requires, that for the due and equal administration of justice, some convenient method and form of trial should be established: Be it therefore enacted, that *423] all crimes and offences which shall be committed by slaves, *for which capital punishment shall, or lawfully may be inflicted, shall be heard, examined, tried, adjudged, and finally determined by any two justices assigned to keep the peace, and any number of freeholders, not less than three, nor more than five.” &C. • (P. L. 165.)

The last clause declares, that the Act shall be deemed a public Act, and shall be taken notice of without pleading the same, before all judges, justices, magistrates and Courts.

Such a tribunal, therefore, as the one now established, can have no powers by intendment; and only such a mode as that expressly pointed out, is competent to try in any capital case.

Would it'not be in direct violation of the principles of natural justice, as well as the order of civil government, for unauthorized individuals to usurp jurisdiction in cases of this sort, and proceed to award, and carry into execution the solemn and awful sentence of death ? And if such usurpation takes place, is there no authority under the government sufficient to put it down ? It would be lamentable indeed, if such was our situation.

Levy, for the motion. Miller, contra.

The pleadings here admit, that unauthorized individuals have tried this slave, and that on the trial, testimony was received in opposition to the rules of the common law. Either is quite sufficient to justify this Court in declaring that the judgment on the demurrer should have been the reverse of what it was, and that on such admission of facts, a prohibition might well have been awarded.

It is almost unnecessary to remark, that this Court, has a superintendency over all inferior Courts and tribunals, and may, in all cases of innovation, award a prohibition, (F. N. B. 43,) which is a remedy provided by the common law, against the encroachment of jurisdiction, or the calling of a person to answer in a Court that has no legal cognizance of the cause. 3 Black. Com. 111. And there can be no question, but that the granting a prohibition, is discretionary, and depends upon the circumstances of the case.

It was supposed, by my brother CouoooK, that after *sentence p^ . 9. in the supposed Court, holden by magistrates and freeholders, a L prohibition could not be awarded, unless the grounds alleged for it should appear on the face of the proceedings. But this is certainly a mistaken view of the law. The true distinction is, that when the matter suggested for a prohibition, appears upon the face of the proceedings, an affidavit of the truth of the suggestion is unnecessary. Where it does not so appear, then it is essential that the suggestion should be verified by affidavit. Godfrey v. Llewellin, Salk. 549. Eaton v. Barton, Cow. 330. Buggin v. Bennet, 4 Barr. Rep. 2040.

But this is not a case falling within the meaning of English decisions. It is a case sui generis, where a tribunal is created by Act of Assembly, to try cases of life and death, and contrary to the rules of the common law.- Every feeling of humanity and justice revolts at the idea, that any other mode of trial, less formal and substantial than what the Act has prescribed, should be sanctioned. By the demurrer in this case, it would appear that such deviation has taken place, that unauthorized individuals have undertaken to try, in a case affecting life, and in their trial, have departed from the known and acknowledged rules of the common law, by admitting, against the accused, illegal testimony.

With these views, the Court think that the decision made by the presiding judge should be set aside. But the defendants are still allowed to plead to the declaration, and in time for the trial of the cause at the next circuit, to be holden for Sumter district, on the-Monday of October next. And in the meantime, and until a final decision can be had thereon, the defendants are prohibited from all further proceedings on the trial had against negro Manuel.

Nott, Johnson, RichaRDSON and HugeR, JJ., concurred.

See ante 174, 410. 1 N. & M’C. 504, and ante. Harp. 311, 511. 3 McC. 177. 
      
       7 Stat. 410, § 9.
     