
    Robert Lindsay and others, proprietors of lots on East Bay, in the city of Charleston, against The Commissioners, for making the new street there, and for assessing the owners of lots to defray the expense, &c. &c.
    
      Charleston District,
    
    
      October, 1796.
    A prohibition will not lie against com-acthig'in obe-acToT the ie* gislature in laying oft a new street in the^cRy^5tít ffttboogh^no hasbeen made ner'10 'over W" •whose soil, the same is to pass.
    _ ture eJt^'the tednwith the KwsIbrUying off roads aud highways, in therjtaí,iUt °d to appoint ersT'to^see and™kept'1 In Yer^thoy61'0" may think convenient and proper, compensation ers íf the'1" wMch^they1 may he run.
    livery 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 light to' appropriate the same, asja part of its eminent domain, to public purposes for the general convenience of the citizens of the state. And this is not against magna diaria, but a part off the les; terra, which previously existed, before it was promulgated.
    UPON a motion for a prohibition to restrain the com» . . .. , . , . , , missioners irom making the said street, and assessment on the lot owners to defray the expense*
    hfr. Desaussure, on behalf of the applicants,
    stated, that they were the owners of the soil over which this new street J 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, the commissioners, appointed by a late act of the'legislature, fr°m proceeding in this undertaking on the following grounds, viz :
    . . , , . . 1st. That the act authorizing the said commissioners to take away their freehold for public uses without their con-senb on full compensation being made to them, or trial by j111!7’ was unconstitutional and unjust.
    2d. That even supposing the commissioners had the *r J 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 were about to levy and collect, without due authority for t5lat purpose.
    ist. The act under which they pretend to derive their . authority, was passed in December, 1795. It enacts, “ that “ the city council of Charleston, shall have power to appoint “ three commissioners to run out and lay off this street, and “ t0 as9ess the owners of lots near or adjoining to it, in M proportion to the benefit they were likely to receive by it.” Under this authority, the city council proceeded to nomi-mate and appoint William Sornmersall, John Champneys and John 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 iay 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 SO 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, praying for a compensation for the soil, they postponed sine die.
    
    opinion” Judge Pater-See page 27, of the report ’/f that
    jje tben 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 with. out 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 upon and submitted to the judges, the opinion of the federal court in the celebrated Wyoming case, as delivered by Judge Paterson, in which it was determined, that the legislature of Pennsylvania “ had no right or power to pass “ 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 171i, 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' was null and void, and they refused to admit it in evidence 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.
    
      Co~up, 26. ‘SO* Loft, 442. Salk. 547, 555, 556„
    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 Seply,
    admitted the law as laid down by Judge Paterspn in the Wyoming case in Pennsylvania, and also in Middleton and Bowman’s case in South Carolina, that the legislature 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 exei-cise 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 k 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 lots adjoining valuable ; for this street was intended to connect 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 level-led 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 reftiotest 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 Cowpeds 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 through which the canal was to pass were to be compensa-, ted, &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.
    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 ex-erciáe 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, Snd 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 v 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 sover reignty, or every inconsiderable freeholder in the country 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, therefore, 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, thev yield at the same time this eminent domain impliedly, even if it is not expressly reserved. Vattel, lib. 1. ut supra, ch. 20. s. ?A8. Again, he proceeds and says, that this sovereign power or eminent domain is to be for the public good, and jt exl-enc[s to aj[ pU5lic places, as on rivers andón highwaysv &c. These public property for the use and benefit of the community, and all the members of the community have an equal right to the use of this common property. But the body of the community only may make such regulations on1 the manner of enjoying it, or using it, as they may think proper; provided that these regulations are nót inconsistent with that equality which ought ever to be preserved in a bommunity of property. Andas all the members of a community have an equal right to this common property, so all ought to contribute, either in money or labour, to keep them in order, and fit for usé. Vattel, lib. 1. ch. 20. s. 249.
    
      Bynkershoek, lib. 2. ch. 1$, lays it down, that this eminent domain or transcendant power may be lawfully exercised in ■ depriving individuals of their property, whenever the public necessity or public utility requires it. He classes “ public “ ways among the works of necessity, as they are indispensa- “ bly essential to intercourse and commerce,'''' “ The emi- “ nent power of the state may also take from the proprietors, “ against their will, those things without which high roads <c cannot be made,” &c. &c. He also asserts, “ that this “ right may be imparted to others occasionally, as to chief M magistrates of towns, cities,” &c. but accedes to the position, “ that if houses and lands are taken from individuals, “ then adequate compensation should, be made,” but that this is only to be done in cases where lands are improved and built upon.
    
      Rousseau, in his inquiry into the social compact, (ch. 9.) says, that in whatever manner the acquisition is made, the ■right which every individual has over his own property is always subordinate to the right which the community has over all, without which there would be no solidity in the social bond, or any real force in the sovereign power.
    From these eminent civilians, and able writers on thg rights of nations, the Attorney-General said, we had the origin of this eminent domain, or right of sovereignty, cor,« iended for: and which appears to have been coexistent with the formation of civil societies, and without which men from remote and distant parts of the country never could have associated together. By common consent, all mankind who originally entered into and became members of society, seem to have consented to yield up to the sovereign power a portion of their landed property, for these great public conveniences, as a condition by which they were linked together, and connected with each other from remote and different portions of the same community. And from the same great jurists, we have the origin of the superintending care of the sovereign authority over these great high communications through the country, by compelling the inhabitants to keep them in repair and in good order, as often as necessity or occasions may require.
    
      Domett, another great civilian, in his treatise on public law, book 1. tit. 8. s. 1. or p. 381. fo. ed. says, there are two things destined for the common use of mankind ; one by nature, such as seas, rivers, sea shores, and banks of rivers 5 the other by civil policy, (or the universal consent of all men,) such as streets in towns and cities, highways connecting them with each other, and market-places for thfe ■sale of the necessaries and commodities of the country. In vol. 2. p. 280. God has given us the use of the seas and rivers, which opens the communication with all the world to us, and makes us acquainted with our fellow men in distant-countries. Civil policy has built towns and market-places, and by roads and highways they are connected together, and their mutual intercourse promoted and kept up with each other.
    Thus it is evident that seas and rivers are the great high- . ways of nations, and public roads the great highways of in* dividuals in every nation, in their mutual dealings and intercourse with towns and market-places, and with each jpther, in every part of its jurisdiction.
    Hence originated the power, which the legislature of South Carolina has claimed and exercised, since the days of the lords proprietors to the present day. The first exercise of this legislative authority, for laying off and making roads and.highways, we find as far back as the year 1686 — 7, considerably more than one century ago; and from that time, a continued series of road acts have been passed, session after session of the legislature, down to the passing of the act for laying off and making East Bay-street, in 1795, through and across every part of South Carolina, for the general convenience of the inhabitants of every district, county, town and parish in it, without respect to persons, or the freeholds or landed property of any of the individuals through whose grounds any of the said roads were to pass or be opened ; and yet in no one act ever passed on the occasion, in the whole run of a century, has ever one syllable been inserted about compensation, or assessing by a jury a sum to indemnify the owners of the soil through which any of these roads were to pass. On the contrary, so early as the year 1721, a general road act was passed, which repealed all former acts on that head, and was intended to form one general high road system for South Carolina. In this act, after nominating and appointing commissioners in all the parishes and precincts in the then province, the 19th clause of the act authorizes and empowers the said.commissioners, or the majority of them, within their several parishes or divisions, at the equal charge and labour of all the male inhabitants of the said districts, between 16 and 60 years of age, to make, mend, alter and keep in repair all such roads, bridges, causeys, creeks, passages and water-courses, laid out, and to ■be laid out, in the said several parishes and precincts, as they might think proper for public convenience. The act then goes on and authorizes them to appoint overseers, to call out •all the male inhabitants between the ages above mentioned, and to contract for building of bridges, and to make assessments on the inhabitants, for defraying the expenses of them, and generally to do all other things necessary for making and keeping them in repair. So far the act proceeds in giving the commissioners general powers to make and keep the roads, causeys and bridges in order, &c.
    
      
      Wvotfs Laws, No. 31. p. 11.
    See Tpotfs Jjarws} No. 458. p. 375.
    
      The 24th clause of the act authorizes the commissioners of the different precincts to give directions for leaving all such trees standing, on or near the lines of such roads, in every parish, as should be most convenient for shade to the said roads or paths, &c. and in case any person should, after such road or path was laid out, altered and cleared, cut down any such tree, within ten feet on each side of such road, every such person should forfeit for each tree so cut down, the sum of twenty shillings, to be levied and collected in the same manner as other fines were levied and collected for of-fences committed on or near said roads.
    The 26th clause of said act goes on further, and declares, that if any person or persons whatever, by themselves, slaves or servants, should in any ways on means stop up or obstruct the passage on the roads aforesaid, or hinder, forbid or threaten the said commissioners, their servants or workmen, from cutting down, falling or making use of any timber, wood, earth or stones, in or near said roads, for making, mending or repairing the same, every such person so offending should forfeit the sum of fifty pounds, to be recovered by the said commissioners in the district «here the offence should be committed, to be applied towards the repairs of the said roads and bridges.
    This act, which was passed in the year 1721, with very little alterations or additions, seems to have formed the system by which the commissioners of the high roads in this state regulated their conduct, from the time of its passing until after the revolutionary war, a period of more than sixty years, during which time almost all the great leading roads from one end of the state to the other, in almost every direction, were laid off and established. And there is not one instance on record, and certainly none within the memory of the oldest man now living, of any demand being made for compensation for the soil or freehold of the lands. through which any of these high roads were to pass, or any opposition made by any man, or set of men, through whose lands or plantations any of these roads were opened, to any of the road commissioners, or other persons acting under their authority. Every freeholder in Carolina submitted with cheerfulness and. respectful deference to the different road laws enacted by the supreme authority of the country. And why, it may be. asked, was this exercise of authority so long and so peaceably submitted to ? Because our ancestors, who,.it may fairly be presumed, were as wise, and as keen-sighted, and as attentive to their interests as we are, were well satisfied and convinced that this was one of the inherent prerogatives of the majesty of the people, and a-power which the supreme authority of the state had a right to exercise, for the general good and convenience of the whole, and that it resulted from the very nature and ends-of civil society, and that mutual intercourse 'which from ne-t cessity they were obliged to keep up with each other.
    From the foregoing principles of eminent civilians and writers upon public law and national rights, and the early, long and uninterrupted adoption and use of them by our legislatures, and men clothed with the supreme authority of the government, and the ready acquiescence in them by the citizens, this important right has become a part of the common law of South Carolina-, and now forms as much a portion of it, as any other part of the common law system in use at this day.
    
      Use and prescription form the common law of every country on earth ; for usages and customs are nothing more than natural truths, founded on the nature and reason of things, arising from their fitness to answer great and beneficial ends and purposes. And hence it follows, that what has been long in use, and what has been observedfor a long time, is in itself useful and just, and becomes a law. And if any law or custom hath been long disused, it is a proof that it has been abolished. Domads Treatise on Laws, ch. 12. s. 3, '4, ■&>
    
      
      Public Paws, P
    
      Public Laws,
    
    If it should be asked, what was the common law of England, which we have adopted as part of the common law of this state ? it will be found to have originated from no higher source than usages and customs. For after the decay of the Roman empire, the Britons were invaded by the Saxons, the Danes and the Normans. Each of these, in their turn, brought with them their usages and customs in succession; and from the most useful of all these, inter» mixed with the original customs of the islanders, the common law of England was originally formed, and which lias ■since been matured and improved by the experience and wisdom of ages.
    After the revolutionary struggle for the liberty and independence oí America, in 1788, when all the citizens of this country, were alive to all their rights and privileges, the last general road act was passed by the legislature, composed of the freemen of South Carolina, who had as deep an interest in the soil, as the lot owners on East Bay, to say no less of them. Into this last act, all the great and leading principles of the act of 1721, were incorporated, which expressly conformed to the ancient regulations which had been so long in use. The 6th clause of this last mentioned act, authorizes the commissioners to lay out, make and keep ■ in repair, all such high roads, private paths, bridges, causeys and -water-courses, &c. &c. in their several parishes and districts, as had been laid out, or as they should judge-necessary., in the said several parishes and districts. They are by the 7th clause, authorized to call out all the male inhabitants between 16 and 60 years of age, to make and keep the said roads in repair, &c. to make assessments for building bridges, Stc. and to levy and collect the same, also all fines and forfeitures for neglects and omissions, &c. The 9th clause empowers them to cut down and make use of such timber, wood, earth or stone, in or near the said roads, &c. for the purposes of making and keeping them in repair, as to them shall seem necessary; and if any person or persons, by themselves or servants, should in any manner, hindery 
      or oppose the said commissioners, their workmen of . servants, from cutting down or making use of any timber, , . . wood, stone or earth, tn or near the said roads or bridges, for the purpose of making or repairing the same; or obstruct the passage on the said roads and paths, every such person so offending, should forfeit the sum of twenty pounds sterling for every such offence, to be recovered in a summary process, before any one judge of the court of common pleas, to be disposed of for the use of the said roads and bridges.
    
      Public Laws, j>. 446,
    
      N.B. The theattof 1721 renT mo CU1" i. e. 7 for one, hut those in 1788 are ster-mn money.
    The 14th clause enacts, that when any such road shall be. laid out, altered or amended, the commissioners (if they shall see fit) shall or may give directions for leaving such trees standing, as shall be most convenient for shade to the said road; and if any person shall wilfully or wantonly, cut down or kill any tree, growing within ten feet of the road, every such person should forfeit the sum of Si. sterling, to be recovered by warrant from any three of the coinmission-ers< The act of 1788, confirms, (though with higher pe« nahies for offences) the act of 1721, in all its essential parts, with regard to the higher prerogative right of the state, and the powers of the commissioners.
    . . _ . .. ... , Not even the proprietor of the soil, over which a road runSj jare presume to obstruct a commissioner in running a road, or in repairing it, when laid out; or even cut down a tree left for shade to the road, any more than any other man in the community: which shews the sense of the legislature, not only as to the right of laying off roads, but in keeping them in repair afterwards; and that they have ever considered the soil of every highway, when once laid off, as exclusively belonging to the public, and no longer to the proprietor, through xuhose grounds they are to run. This primary obligation of every man, to give up a portion of his land for the use of highways, may, with great propriety, be compared to a tax which every man is obliged to pay and contribute for the support of government.
    In the charter of the city of Charleston, the legislature, in •the usual and customary exercise of this eminent domain Which it possessed, gave to the city council the power, among other things, of laying off new streets from time to time as it should think proper, and of keeping old ones in repair within the bounds of the city, In pursuance of which powers, the city council did proceed to nominate and appoint commissioners to lay off the street in question, on East Bay, along the edge of low water mark, from the south end of old East Bay street, to the east end of South Bay street, in order to connect the south and east parts of the city together, by a street or convenient communication. The better, however, to complete this work, and to make this street, it was absolutely necessary to raise it as high as the wharves of the city, both on East Bay, and those on South Bay, which was likely to occasion a very large expense to the city. To ease the city, therefore, in some degree, of this heavy expense, the assessment was authorized on the lots more immediately to be benefited by this new work. Very few of the lot owners complained of this assessment, which was thought reasonable; but the clamour and opposition was made by the large and principal lot owners, who not being satisfied that this pretext alone would effect their purposes, advanced this new claim for compensation for the soil, to be assessed by a jury. The Attorney-General said, he called it a new claim, because it was the first time in the history of our country, that ever such a claim was made, as the present one, except in cases, where houses and buildings had been previously erected, which were necessary to be removed before a street could be completed ; and in those cases, compensation had uniformly been made.
    He observed, that he had gone a little more at large into this subject, than he otherwise intended to have done, on account of the extensive and mischievous consequences, which such a claim would introduce into Carolina, if ever it had the sanction of our courts of justice. He therefore, hoped, the court would reject the application for the prohibitions. He said, he would only trouble the court with one-Word or two more, in answer to the second gentleman wh# spoke in favour of the motion, as he trusted the city recorder had fully answered the leading counsel who had spoken in its favour.
    The principle upon which compensation was made for sites for arsenals and fortifications, was, that a considerable extent or space of land, in favourable situations, for the de-fence or protection of the country was appropriated, solely for the use of the state for military men, and as a grand deposit for arms and ammunition, and as places of resort in times of danger, to which the citizens of the country never had access, but when called'upon to bear arms. It was but reasonable, therefore, that the proprietors should be paid for such situations, which were appropriated for the general de-fence of the whole. Whereas in the case of roads and highways, all the citizens had an unceasing and perpetual use of them alike ; there was no exclusive appropriations ; it formed part of the original social compact, by which one man at first agreed, that his neighbour should have permission to pass over his land, in consideration, that he was to enjoy a similar one, in passing over his neighbour’s, which, in process of time, has been matured into that great and convenient system’, by which all the highways of a nation are regulated.
    As to the Isle of Man, that was a kind of little petty imperium in imperio, in which the proprietors styled themselves kings of Man, and passed laws of their own. It was a sort of independent sovereignty, which injured the English trade exceedingly, by forming a nest for smugglers, from every part of Europe. So much did it interfere with the trade of that kingdom, that they had it frequently in contemplation to take it by force. But at last, the ministry of George I. preferred a compromise for the sovereignty and jurisdiction, with the duke of Atholl, for 70,000/. sterling, and it has ever since been governed by laws enacted by the British parliament. But that case bears ño kind of analogy to the one under consideration. It had more the appearance of a cession from one sovereign power to another? than aq appropriation for public purposes.
    
      Act passed Geo. II. A. n 1756.
    As to the opening of the street in the city of London to Black Fry ads Bridge ; it was extreme!} proper and just that compensation should be made to the owners of the houses removed out of the way, &c.
    A most magnificent bridge had just been built over the river Thames, which added greatly to the convenience of the city, and opened a most advantageous communication to the county of Surry, on the opposite side of the river. It formed one of the principal avenues to and from this vast city. But before a large convenient street could be opened into the other great avenues in the city, it became necessary to pull down a number of buildings which stood in the way. Accordingly, an application was made to parliament, who passed an act authorizing the lord mayor, aldermen and common council of London, to treat with private persons for such houses as were in the way, and the grounds over which the new street was to pass. And in case the proprietors would not sell, then to summon a jury to assess the value of each house and lot; upon tender or payment of which, the soil was to be vested in the corporation for a public highway or street, for the use of the city forever. And if any proprietor refused to accept of the sum so assessed, the money was to be deposited in the bank, for the use of the proprietor or his heirs, &c. whenever they thought proper to accept of it. Here it is to be observed, that no public highway or street had ever been laid out or opened, before the lands had been built upon and improved; it would therefore have been little less than downright robbery, to have taken away these lands and houses from the proprietors, without adequate compensation. But this is very different from waste lands, which have never been occupied or improved, and can form no kind of precedent in such a case. In the case before the court, it was an original appropriation of waste, unimproved land, for the purpose of making a public highway. So that the two cases are by no means parallel with each other. The case of the Santee Fanal) was the case of a company, who were to receive the benefit of a toll, to their own emolument. It was made at their own expense and not by the public, and it is kept in repair at their labour and expense only. The public have nothing to do with it. But although the act allowed of compensation to the owners of the land, through which it was to pass, if they thought proper to claim it, yet not an individual in the whole course of twenty-two miles, through whose land the canal ran, has ever made such claim. Indeed they would have been ashamed of it, as their lands were greatly benefited by the canal. This case therefore, like the other cases quoted and relied on, has nothing to do with the present question. He apologized for dwelling so long on so very clear a case ; its importance to the community at large would, however, he hoped, plead his excuse.
   Judges Grimke and Bay

were of opinion, that the motion for the prohibition ought to be refused. They considered the act in question as authorized by the fundamental principles of society. That the authority of the state, as laid down by eminent civilians and jurists, to appropriate a portion of the soil of every country for public roads and-highways, was one of the original rights of sovereignty, retained by the supreme power of every community at its formation, and like the power of laying on, and collecting taxes, paramount to all private rights ; or in other words, that all private rights were held and enjoyed, subject to this condition.

That it was by the means of these roads and highways, that the citizens of the country had a- convenient communication from one extremity of it to another ; and between the intermediate towns and public places in the interior of it. It was along them also, that the citizens assembled with convenience and despatch in times of danger and alarm, for defence and protection ; and along these, the productions of the country were conveyed to a market, and the produce of the soil was rendered valuable. It was therefore a mat» ter of primary importance, that the power of making ap,d laying off these avenues of great public convenience, and keeping them in repair, should for ever be vested in the supreme legislative body of every nation and comrqonwealth on earth. That the legislature of South Carolinafiiad exercised this power and authority, from 'the first establishment of civil government in it, to the present day." They therefore considered it, as much a part of the commoNRaw of South Carolina, as any other part of that great andlvalua-ble system. •

That it was neither against magna charla-, nor the state constitution, but part of the lex terree, which both meant to defend and protect. The so much celebrated magna charta of Great Britain, was not a concession of rights and privileges, which had no previous existence ; but a restoration and confirmation of those, which had been usurped, oiqhad fallen into disuse. It was therefore only declaratory of the well knowtl and established laws of the kingdom.

So, in like manner, the 2d section of the 9th article of our state constitution, confirms all the before-mentioned principles. It was not declaratory of any new law, but confirmed all the ancient rights and principles, which’ had been in use in the state, with the additional security,-that no bills of attainder, nor ex post facto laws, or laws impair, ing the obligation of contracts, should ever be passed in the state. They were therefore of opinion, that so far frorii Interfering with, or contradicting this high and important "privilege of the legislature, in laying off highways, they both confirmed and secured it; consequently that none of the cases relied on by the counsel in favour of this motion, had the least tendency to contradict or overturn these principles., They were also of opinion, that the act of the legislature was constitutional and binding, and that the city-council were well warranted in appointing the commissioners to go on and finish the street in contemplation. As to the •assessments on the lot owners, that point seems to have been given up in the argument, as they relied principally on the compensation for the freehold: ajnd as to the mode of collecting them, it appears to be in conformity to the old usage and custom of levying and collecting assessments, por and repairing of bridges, prescribed by the ancient road acts, a century ago. Upon the whole, they were of opinion, that there were no grounds for the prohibition, and that the rule should be discharged.

Burke, J.

admitted the power of the state on great and necessary occasions, to appropriate a portion of the soil of the country, for public uses and national purposes ; but was of opinion that there should be a fair compensation made to the private individual, for the loss he might sustain by it, to be ascertained by a jury of the country.

"Waties, concurred in opinion with BuRke,

but went more fully into his reasons. He admitted the right of the state to take the property of an individual, for purposes of public necessity, or even for public utility; but in exercising this power, it was essential to its validity, that a full compensation should be provided at the time, for every injury that the individual might suffer. This appeared to him, he said, to be the construction given by the writers quoted on the part of defendant’s counsel, to shew the lawfulness of this power. Vattel, b. 1. c. 20. s. 244. expressly says, that ei justice demands, that the individual should be recom- “ pensed and Bynkershoek, who was also quoted, explicitly declares the same thing. The common law of England, which has also recognised this power, does it always with the same restriction. “ The legislature,” says Mr. Blackstone, “ may order a new road to be made through “ the private grounds of an individual, and may compel '« him to acquiesce in it. But how does it compel him ? “ not by stripping him of his property, in an arbitrary man- “ ner, but by giving him a full indemnification or equivalent “ for it." And even this is an exertion of power which it “ indulges with great caution.” Which is evident in the act of parliament for making a new road from Black Fry- Ur’s Bridge, across St. George’s Fields. The corporation of London is thereby authorized and directed, to treat with the owners of lands that might be taken away by the road, for the purchase of the same ; and in case of refusal ¡to treat for the value of the lands taken, the same is to be assessed by a jury ; which he said, had a strong similitude to the present case. The road in that case, most probably in some cases enhanced the value of the lands through which it passed, and therefore was productive of benefit to the owners. But parliament thought proper, by the sacred principle of compensation, to provide for any possible injury. The rights of our citizens are not less valuable than those of the people of England: we have besides a constitution, which limits and controls the power of the legislature, the 9th article of which, declares, that no freeman shall be de-vested of his property, but by the judgment of his peers, or the law of the land. - On a former occasion, (in the case of the City Corporation against Zylstra,) he said, he had gone into a long investigation of the technical import of the words lex terree, and therefore should only state here, that they meant the common law, and ancient statutes down to the time of Edward II. which were considered as part of the common law. This was the true construction given to them by all the commentators on magna charta, from whence they were adopted by our constitution. If the lex terree meant any law which the legislature might pass, then the legislature would be authorized by the constitution, to destroy the right, which the constitution had expressly declared, should for ever be inviolably preserved. This is too absurd a construction to be the true one. He said he understood, therefore, the constitution to mean, that no freeman shall be deprived of his property, but by such means as are authorized by the ancient common law of the land. According to this construction, the right of property is held under the constitution, and not at the will of the legislature. In what way, then, does the common law authorize the power of taking private property fpr public uses ? “ by pre=, “ viding,” says Mr. Blackstone, “ a fulMndemnificatiori “ for it.” This is the condition on which the valid exercise of this power depends. But the law under consideration does not provide any indemnification, nor does it make the public responsible in any way for any injury which might be done to the plaintiffs. It has not therefore complied with the terms of the common law, and is not conformable to the constitution. It was urged, however, that no injury could arise to any of the parties complaining, and therefore it was not necessary that the legislature should provide any indemnification. This fact may be so; but it makes no difference in the case. Was the legislature itself to be the judge of that fact ? Can it prescribe what terms it pleases for the individual, and determine either the measure of compensation for property taken, or that none at all is due ? This would be attributing to it a power which belongs only to despots. And yet even the greatest despots have not always felt themselves at liberty to exercise it in this way. De Tott, in his memoirs of the Turkish government, mentions a remarkable instance to the contrary, which it may not be amiss to relate on this occasion. The sultan Mas-tapha being desirous of building and endowing a new mosque, fixed upon a spot, in the city of Constantinople, which belonged to a number of individuals. He treated with all of them, for the purchase of their parts, and they all willingly complied with his wishes, except a Jew, who owned a small house on the place, and who refused to give it up. A considerable price was offered him, but he resisted the most tempting offers. His partiality for the spot, or his obstinacy, was stronger than his avarice. All the city was astonished at his rashness, and expected every hour to see his house demolished, and his head upon a pole. But what was the conduct of the sultan ? of one who was the absolute master of the lives of millions ? He consulted his mufti, who answered that private property was sacred, that the laws of the prophet forbade his taking it absolutely, but he might compel the Jew to lease it to him, as long as he pleased, at a full rent. The sultan submitted to the iaw. He observed, that we might learn two things from this example of a despot: 1st. That the sovereign power, although absolute, is not at liberty to take away private property and decide, at its own discretion, that no compensation is due ; 2d. That the principle of indemnification is deeply founded in natural justice. It was further said in this case, if any injury is done, the parties might have recourse to a court and jury for redress. But whom could they sue ? not the commissioners, not the city council; for they would justify under the act. Whom then ? why, no one. But suppose they could sue, what would be the nature of the action ? It could not be founded on contract, for there was none. It must then be on a tort; it must be an action of trespass, in which the jury would give a reparation in damages. Is not this acknowledging that the act of the legislature is a tortious act ? and can any thing prove more-fully, the arbitrary character of the act, than this ?

He said, it was painful to him to be obliged to question the exercise of any legislative power, but he was sworn to support the constitution, and this was the most important of all the duties which were incumbent on the judges. On the faithful performance of this high duty would depend the integrity and duration of our government. If the legislature is permitted to exercise other rules than those ordained by the constitution, and if innovations are suffered to acquire the sanction of time and practice, the rights of the people will soon become dependent on legislative will, and the constitution have no more obligation than an obsolete law.. But if this court does its duty, in giving to the constitution an overruling operation over every act of the legislature which is inconsistent with it, the people will then have an. independent security for their rights, which may reader them perpetual. In exercising this high authority, the judges claim no judicial supremacy ; they are only the administrators of the public will. If an act of the legislature is held void, it is not because the judges have any control over the legislative power, but because the act is forbidden by the constitution, and because the will of the people, which is therein declared, is paramount to that of their representatives, expressed in any law. As the act under consideration appeared to him to be repugnant to this high will, he was bound to say”, that it ought not to have any operation, and that the prohibition should be granted.

As the judges were equally divided in opinion in this case, the applicants took nothing by their motion.

The rule for the prohibition was, therefore, discharged..  