
    Thomas Gray vs. Court of Magistrates and Freeholders.
    Granting or denying a writ of prohibition, is in a great measure discretionary will) the court. But it is the duty of the superior courts of law to confine all subordinate jurisdictions to thoir proper bounds; and the question of ’ jurisdiction is to be determined by the superior and not the inferior court.
    Generally aprohibition may be awarded, as well after, as before, judgment; ’ but the converse is true in cases where the court had jurisdiction of the matter, but was restrained by some sta*ule, and the party by pleading admits the jurisdiction.
    A party has a right to appeal, ou an application for a prohibition, from an order made at chambers, or on circuit; and it seems the subordinate court has no right to proceed after notice of such appeal.
    It has been sometimes the practice to grant a prohibition, until the determi, nation of the appeal.
    Motion for aprohibition before Mr. Justice Richardson.
    The appellant in this case was taken up under a Warrant from John Michel, one of the justices of the peace, on a charge for insolence, and for an attempt to strike Mr, William M‘Dow; and a court composed of the said magistrate and two freeholders was formed for the purpose of trying him under the act of assembly, regulating the trial of negroes and slaves. The appellant filed his suggestion for a prohibition in the ofiice of the clerk of the court for Charleston district, against the magistrates and freeholders to restrain them from proceeding in the trial, alleging in his suggestion that he was not a negro, mulatto or slave under the negro act of 1740, but a free Indian and the descendant of a freo India!» woman in amity with this state; that he consequently came within the exception mentioned in the act and, therefore, was-not subject to thejurisdiction of the court of magistrate and freeholders. In support of this suggestion, affidavits in proof of these lacts were also filed.
    Mr. Justice Richardson refused the prohibition, and assigned for reason “ that the matter charged was within the jurisdiction of the magistrate and freehelders, and that all the incidental ,questions, arising out of the facts set up by way of defence, remained within thejurisdiction. He said, were this no? the case, any party charged before an inferior court, might, by alleging a fact, raise a question belonging exclusively to a higher tribunal, and thus at pleasure estop the inferior court;. Ex gratia; any negro might allege that he was a white man, and any man charged with a debt of twenty dollars might allege that the debt was really thirty dollars, and thereby obtain a prohibition But such allegations ought to do no more than iraise a question of fact for the consideration of the inferió? court, which if found false, the courtproceeds to judgment, oi ,if found true,.the defendant prevails. To reply to this, that the oppression, of the citizén and the usurpation^jurisdiction! may be practised by the inferior court, was only saying what is. not to be predicted of the lowest, any more than of the highest, tribunal. .Both may oppress and usurp andboth were equally liable to punishment therefor; but neither can be checked while acting within its jurisdiction, because.it may possibly do wrong by its .decision.”
    An appeal was now.made on the -grounds:
    1st. That the writ of prohibition is the only remedy Jar persons, not subject to thejurisdiction of a court of magistrates and freeholders, when arraigned before sueh court.
    , 2nd. Because the presiding Judge mistook the law io allowing the magistrate’s court to be the exclusive judges of #ieir own jurisdiction.
    
      3d. 'Because the prohibition filed by Thomas Gray and the accompanying affidavits, shewed the want of jurisdiction, and the writ of prohibition ought to have issued ex debito jysiiiios.
    
    
      Argued, 18th starch 1825
    .Dawson, for the motion.'
    The party may elect to proceed by prohibition or for damages. Prohibition lies against all inferior courts. (5 Sac. Jib. 656. lb. 650. Fitzherbert’s JYat. Brev. 43,) and is demandable of right, upon suggestion, (5 Bac. 649. Prohibition The superior court is to judge of the jurisdiction of the inferior; and the prohibition must be granted, whenever it appears upon the face of the proceedings that the inferior court exceeds its jurisdiction, or whenever it is made to appear by affidavit. (2 JVott Mi Cord 424. 8 Black. Com. 112, 113.J
   Johnson, J.

“The suggestion, which is supported by affidavits, raises a strong presumption, that the relator was not amenable to a tribunal constituted by a magistrate and freeholders, for the trial of slaves and other persons of colour: and the question now made is, whether the circuit judge did not err in rejecting the application for a prohibition, before the court proceeded to judgment? There is no doubt that granting or denying the writ of prohibition is in a great degree discretionary; (5 Bacon’s Air. Title Prohibition. B,) and if the order made in this case had been placed on that footing, this court would have required a strong case before they would have interposed; but it is founded on the opinion that the court ofjustices and freeholders was the proper tribunal to determine the question of jurisdiction. That it is the province or rather the duty of the superior courts of law to confine all subordinate jurisdictions to their proper bounds, and that the question of jurisdiction belongs exclusively to them, is a proposition too clear to be controverted; and the history of this case, apart from authority, proves to demonstration that this power would be nugatory if they could not interfere until judgment; for it is said that the cqurt on the* refusal to grant the prohibition proceeded to judgment and execution, by inflicting corporal punishment on the relator. There is as little doubt, however, on the score of authority. Generally a prohibition may be awarded as well before as after sentence; but there are some cases in which the converse, of the proposition is true, as in cases where the court had jurisdiction of the matter but was restrained by some statute, then if the party by pleading admit the jurisdiction, a prohibition would not be granted; ( Paeon’s Abr. Title Prohibition Jrl.) And if the court had not jurisdiction of the matter, any step is an usurpation; and although it is possible they may decide correctly, with respect to that question they may err; and in courts organized like this, and from which there is no direct appeal, the remedy comes too late after the sentence is carried into execution. The only objection opposed to the application for the prohibition is the inconvenience that, would result from a precedent which would make the superi- or courts of law the first resort in all cases of this kind, and thus indirectly deprive the subordinate courts of their legitimate powers.But this objection is well answered by the counsel for the motion. A security against its abuse is found in the integrity of the bar, and, surely in. the discretion of the superior tribunals. And even admitting, that evils may possibly grow out of it, they are outweighed by the probability, that ifindulged in the uncontrolled exercise of its power, nó citizen, whatever his rank or station in life, would be safe in life or liberty. It certainly never was designed to confide to this tribunal, matters of such moment. The sentence of the court, having been carried into execution, any order which this court could make would be nugatory, and the. court have only used this occasion to express its opinion on a question, the practice in relation to which seems not to have been settled. And it may be further remarked that the act of the legislature of 1818, gives to a party the right to appeal from an order made at chambers or on circuit on an application for a. prohibition, and it may be worthy of enquiry whether the subordinate court could proceed after notice of appeal. In a few cases, however, within my own experience,, upon notice of an intention to appeal, prohibitions have been issued to restrain proceedings until the determination of the appeal, and this would probably be the best course, as least subject to vexatious delays.

Dawson for the motion,

I 23. Holmes, contra.  