
    
      Ex parte the South Carolina Rail Road Company.
    
    The South Carolina Rail Road Company has the right under its charter to extend its road to the Boundary street of Charleston, by running it over the lands of private individuals against their consent, and to have those lands valued by commissioners, tó be for that purpose appointed by the court.
    Where the company makes application to the court for the appointment of commissioners to value lands, which it proposes to lake for the purposes of the road, the court acts ministerially, and the company is not bound to shew, nor can the court enquire into, the necessity for taking the lands. Of that necessity the company must judge, and the court can only look to the fitness of the commissioners.
    The company is not confined to the track which it has once selected for its road, but may, it seems, alter or change the location of the road, as convenience or interest may require.
    
      Before Fb.ost, J. at Charleston, Fall Term, 1844.
    The report of his Honor is as follows:
    “This was a motion for the appointment of commission" ers, under the charter of the company, to make a valuation of so much of the lands of H. W. Oppenheim -and others, lying between Hudson and John streets, on Charleston neck, as may be required by the company whereon to locate their rail road, or to alter the plan thereof; and which the said company may be authorized to take, by virtue of the several Acts of the Legislature concerning the same. No petition was filed, nor any verified statement shewing the court any facts or circumstances in explanation or support of the application for the order ; nor was any information given to the court of the objects, plans or designs of the company, in making the application ; nor of the necessity for the lands proposed to be taken for any of the purposes authorized by the charter, farther than is set forth in a part of the order moved for by the applicants, which has been quoted at the commencement of the report,
    “ H. W. Oppenheim appeared, and shewed for cause against the grant of the order, that under the charter of the South Carolina Canal and Rail Road Company, that company’s road terminated at Line-street. That the power to extend the road from Line-street to the boundary of the city, was granted by the Act of 1832, amending the charter ; and that this latter Act gives the company no power to appropriate private property to the use of the company, without the owner’s consent; nor is this power conferred by the charter of the Louisville, Cincinnati and Charleston Rail Road Company; nor by the Act of 1843, which changes the corporate name and style of the last named company, to that of the South Carolina Rail Road Company, and grants it authority to purchase the interest of the stockholders in the former company, and merge its charter in that of the South Carolina Rail Road Company.
    “And further, that the company, in 1838, completed a road from Line-street to Hudson-street, the boundary of the city, passing by the lands of the respondent, now proposed to be taken by the company, which road exists and is practicable; that the said land is therefore not necessary for the construction of a road between Line-street and Charleston, nor for the continuation of the road into the city ; which, under the Act of 1832, may be continued across Hudson-street, and along the streets of the city; that the respondent’s land is claimed by the said company only for the purpose of making a change in the road already constructed, and capable of answering all the ends of public convenience ; and that any alterations which the company may desire to make for their greater convenience or profit, should be made in compliance with the general law of the land, by procuring the consent of the persons whose property may be affected.
    “The charter of the South Carolina Canal and Rail Road Company, (all the rights, privileges and property of which, under the Act of 1843, have become vested in the South-Carol ina Rail Road Company,) gives power and capacity to have, hold, &c., any lands, <fec., which they may find necessary for the site of the road or branches, or to vary the plans thereof, of such breadth as they may see fit, and to purchase any lands contiguous to the road, which they may find necessary for the procuring of necessary and proper materials for constructing, repairing and guarding the road ; and also for the erecting of store houses, (fee. (fee. The Act further provides, that whenever lands may be “ required for the purposes aforesaid,” and the same cannot he purchased from the owners, they “ may be taken at a valuation to be made by commissioners, to be appointed by the Court of Common Pleas for that purpose, and the land, when valued by the commissioners, shall be vested in the company in fee simple, so soon as the valuation shall be paid or tendered.” An appeal is given from the valuation of the commissioners to the court, which may be re-assessed by a jury; but the appeal does not suspend the exercise by the company of the right of property vested in them, by the payment or tender of the valuation by the commissioners. By an amendment of the charter, passed in 1832, the company is authorized to extend their road from the “ present termination” at Line-street to “ the boundary of the city,” “ through any public streets, roads or squares of the said neck ;” and the City Council is authorized to permit the extension of the road through the public streets and lands of the city, on certain conditions annexed to the power to extend the road from Line-street to the city.
    
      “ The charter of the Louisville, Cincinnati and Charleston Rail Road Company empowers the company to have and to hold lands that may be necessary for the road and its branches, for store-houses, (fee., in terms nearly as comprehensive as are used in the charter of the South Carolina Canal and Rail Road Company. But respecting lands which maybe taken by the company at a valuation, restricts the privileges of the company to such lands as may be required for the purpose of constructing their road.
    “Under the powers conferred on the South Carolina Rail Road Company by these Acts, they insist that it is not necessary to shew to the court any facts in .support of their motion for the appointment of commissioners to appraise the lands of the respondent and others ; and assume that the power vested in the company to appropriate the property of private individuals for the use of the road is unlimited in time, indefinite in extent, and subject to no restraint on the will and discretion of the company.
    “ The right of property is so deeply and universally impressed on the minds of men, even the most barbarous, that it seems a law of nature. An instinctive sense of justice recognizes the right of ownership, to be enjoyed in possession unalienable without the consent of the proprietor. The preservation of this right is the principal object of government, the most powerful motive for men to unite in political society, and the strongest incentive to industry and enterprise. Accordingly, all the writers on “ natural law,” concur that it should inviolably be respected and maintained. The only exception to the absolute and exclusive dominion of the owner over his property, is allowed in favor of the sovereign power, for the purposes of public utility or necessity. The right of disposing of ihe property of individuals for the public good, is an attribute of sovereignty alone, and is called the eminent domain. These principles of natural law are recognised in the fundamental constitution of all civilized nations, and in no system do they prevail in more vigor than in the common law and political institutions of this country. In the early history of England it was affirmed as the ancient constitution of that kingdom, (not a newly asserted right.,) that no man should be disseized of his freehold, but by the judgment of his peers, or the law of the land. By the law of the land, judicial decisions have well settled, is meant the common law and established customs, and not an act of legislative power. For it is clear that the legislative power cannot by enactment take away the freehold of one and give it to another. That principle of the British constitution was deemed so important and inestimable, that it was incorporated in the declaration of rights in the constitution of this State.
    
      “ It is admitted that public roads are among the works of public necessity for which an individual may be deprived of his property by the eminent power of the State, and that this power may be imparted to others, as to municipal corporations and other public functionaries, who may be charged with the execution of such works. It must also be conceded that the road which the South Carolina Rail Road Company was organized to construct, is a public road ; and that the power of the State may be conferred on an incorporated association of individuals, and has been in fact conferred on the said company.
    “ But though corporations may be the depositories of the eminent power of the State, they are plainly not unexceptionable. The delegation of the power to municipal corporations or public functionaries, such as the commissioners of the roads, in whom that power has always been vested since the settlement of this State, is guarded from abuse by the improbability, if not impossibility, of a combination of interests hostile to the public convenience or the rights of citizens. And by the elective appointment of these functionaries by those over whom the power is to be exercised— affording security against abuse, as well by the manner of the appointment as by an immediate responsibility to the subject of the power. But the commission of the power to a corporation engaged in a work of public convenience, as an enterprise of profit to the stockholders, is attended with no security against abuse, but on the contrary is subject to the strong temptations of interest. The construction of the terms of the grant to such an agent must be made with the cautious and critical allowance conceded to a grant of new and extraordinary powers, unknown to the common law.
    “The first and most obvious consideration in determining the powers granted to the relators is, what was it competent to the Legislature to confer ? The authority of the eminent domain to take private property for public purposes, is limited to so much as is necessary. When the power is conferred on public functionaries, who can have no interest to claim or take more than is necessary, it is a fair presumption that their discretion is the measure of the power they may exercise. But if the agent has an interest beyond the execution of the work, to grant a power at his discretion, is to grant it for the execution of the work, not only in a manner necessary for the public convenience, but also cbnducive to the profits of the agent. It cannot be pretended that the public convenience and the interest of the company must always be concurrent. It is very obvious that the construction of the road and changes of the plans, direction and arrangements, may be important to the interests of the company when not necessary to the public convenience, and may indeed be determined by the interest of the company against the public interest. To construe the grant of the power to the company as limited only by their discretion, is to grant them power to take private property for the increase of their profits. Such power ■ the Legislature cannot confer on a corporation any more than on a natural person.
    “ But it may be argued, the obligation to pay the assessed value is a sufficient check against the exercise of the power for any purpose not necessary for the road ; and that the assessment of a jury, made from á regard to all the circumstances of the case, so controls the discretion of the company, as to limit the power practically to its legitimate objects. The argument admits that the company may take private property for its own emolument, if it is willing and able to pay an extravagant price. It may very well happen, that the contingent and speculative advantages of possessing particular property, may induce the company to hazard the verdict of a jury. The difficulty of obtaining all the land the company may desire to purchase, is the disagreement about the price between them and the owners. The utmost a jury can be expected to give is the sum demanded by the owner. If only required to increase the profits of the company, a proprietor may ask what price he pleases for his property, without any imputation. The restraint of an assessment by a jury, does not prevent the company from claiming and taking what is not necessary for the public convenience; but when the company needs lands for any other purpose, permits them to take them without the consent of the owner, with the chance of having to pay less than he demanded. A proprietor, so situated as to share in the profits of the business of the road, has an indefeasible right to possess and enjoy that advantage, and to permit the company to engross and monopolize every source of profit incident to the road, by taking and appropriating to itself all lucrative situations, would be oppressive and unconstitutional. The practical operation of the power claimed for the company, to take private property at their discretion, may be shewn in a striking manner if the road is continued to the wharves of the city. Wharves and store-houses may be very important to the interest of the company, by enabling them to engross the profits accruing to such property at the terminus of the road. They are not necessary to the construction or public convenience in the use of the road. Has the company the right to take such property on paying the assessed value 1 The hazard of an extravagant appraisement may not deter them. If such a power is in terms conferred, it is greater than the Legislature could grant. Every presumption and reasonable construction must be against such a conclusion. If these cannot countervail the expressed intention of the Legislature, the supreme law must be invoked to protect the citizen.
    
      “ The charter of each company authorized it to take only such property as may be necessary for the purposes mentioned ; but the company is not left to decide what is necessary. The Act provides, that when any lands are required by the company, they may be taken at a valuation to be made by commissioners appointed by the Court of Common Pleas. The effect of the order appointing commissioners to value, is that of a judgment vesting the land in the company. For it is the duty of the commissioners to make the valuation, and when the appraised value is paid, or (if refused) tendered to the owner, the land is vested, in fee simple, immediately in the company; and though an appeal is allowed to the Court of Common Pleas, and a jury may be required to re-assess the value, the right of property in the company is not impaired, nor its operations suspended by such appeal. It would seem, if provision for the appointment of disinterested commissioners was alone contemplated, the appointment might have been made, as is usually done in cases of arbitration, by each party appointing an equal number, with power to call in an umpire if they should not agree, with the same right of appeal permitted to the parties. But the agency of the court could not have been designed to .be merely ministerial. In referring the parties to that tribunal, some discretion must have been intended to be exercised in the granting or refusal of the order. It can only be exercised in determining how far the land required by the company, may be necessary. If the question depends on facts, a jury may be called to aid the court in the decision. There may be objections of inconvenience and delay in this proceeding, but it is better to submit to them, than to violate the constitutional and natural rights of a citizen. The power to take - the property, without the consent of the owner, is a very extraordinary power to grant to a corporation. They have the entire interest in the profits arising from the. use of the road as a public convenience, besides those derived from arrangements designed exclusively for their profit. If the public advantage can be made to appear, the court and jury would not refuse to confirm the exercise of that power. If it cannot be shewn, the company has no right to take the property. The inconvenience that may 'be suggested, will be principally experienced' in the prevention of the company from taking property for their ■■ exclusive and peculiar advantage, or when the public necessity is doubtful. In both which cases, law and right are concerned that it should not be taken.
    “This construction of the Act involves no practical difficulty in the exercise of the power of the State, by corporate companies, to execute works of great public utility, which may be best accomplished by the capital and enterprise of individuals. Such companies - may be authorized to purchase and hold lands required for the interest and convenience of the company, and to take such lands at a valuation, as commissioners appointed by and in behalf of the State, may judge necessary to the public convenience, in the construction of a road. All the legitimate powers necessary for .the encouragement of public undertakings by private persons, may be accomplished by such provision. The company not having the power to take the pro» perty of citizens at their own discretion, and the necessity for taking the lands of the respondent, for any of the pur» poses mentioned in the charter, not having been shewn to the court — the motion is refused.
    
      The South Carolina Rail Road Company appealed from the foregoing order, and now moved to reverse it, on the following grounds.
    1. That by virtue of the several Acts of the Legislature concerning the South Carolina Canal and Rail Road Company, the Louisville, Cincinnati and Charleston Rail Road Company, and the South Carolina Rail Road Company, the said South Carolina Rail Road Company are author-ised to take so much of the land of any person or persons as they may find necessary whereon to locate their Rail Road, or to alter the plan thereof; that this power is a delegation to the company of the authority of the State to take the lands of individuals for the public use, in the location or alteration of the Rail Road, and makes the company judges, in the first instance, of the necessity to take the land; and the only agency which the Court of Common Pleas, has in the matter, is to appoint commissioners to value the land, when it appears that it cannot be purchased from the owners, for want of agreement as to the price, or for any other cause ; and it is not necessary,'as preliminary to the appointment of commissioners, that the court should be satisfied that the necesssity exists.
    
      2. That the company, in the exercise of their power to take private property, without the consent of the owners, are subject, like all other inferior delegations of public authority, to the supervisory power of the Court of General Sessions and Common Pleas, and may be restrained by prohibition from abusing or exceeding their authority. And when the necessity to take the land is denied, the question may be tried and determined upon the proceedings in prohibition.
    Mazyck, for the motion.
    
      Petigru, contra.
   Curia, per Butleh, J.

The company whose case is before the court having derived its rights through the other companies referred to in the circuit decision, has the right to exercise all the powers, and enjoy all the franchises, that have been conferred on those companies by the different Acts of the Legislature under which they held their charters. The essential provisions of these charters and Acts, are sufficiently noticed in the judgment below, and I shall advert to them in connection with the propositions and questions which seemed to be involved in the case.

The first proposition which I shall consider, is, whether the company has the right to extend its road to the boundary street of Charleston, by running it over the lands of private individuals ; and if so, to have those lands valued, through the intervention of commissioners, to be for that purpose appointed by the court 1 And secondly, if a purchase may be effected by the mode indicated, is the company bound to make a shewing to the court, of the necessity for requiring the lands to be taken for the purposes of the road 1

It was conceded in argument, that the company could extend its road to Boundary street, by running it over the lands of private individuals, provided the purchase of the lands could be effected by the consent of their owners. But it was strongly urged, that the land of the individual before the court could not be purchased of him, by the valuation of commissioners. It was not denied but that, under the original charter created by the Acts of 1827 and 1828, the company would have had the right now contended for, but that it has been lost or exhausted by the original location of the road; to wit: that until the Act of 1832 was passed, the terminus of the road was fixed, by the act of the company itself, at Line street. It has been supposed that this point has been settled by the adjudication of this court, and that now the company has no other power to extend its road, except under the provisions of the Act of 1832. The Act has the following clause, (the only one that bears on the question,) — “ Be it further enacted, that the said company be, and they are hereby, authorized and empowered to construct a single track of their road, and the necessary number of turn-out tracks, from the present termination of their road, at Line street, on Charleston neck, to the boundary line of the city of Charleston, through any public streets, roads or squares, on the said neck. Provided, that no locomotive steam engine be nsed below Line street; and provided also, that the Rail Road be so constructed as not to impede the ordinary passage of carriages and persons along- the said roads, streets or squares.” 8 Stat. 380. Now, here was a power given to the company that it did not possess tinder its charter; to wit: to use the public streets and other highways of Charleston neck. They' were highways that had been laid out by public authority, and were under the control of another corporation, or organized body; It was thought necessary to give the Rail Road Company the power to use them sub modo, that is, subject to certain specific restrictions and limitations. The company could not use such public highways by locomotive steam engines, nor could they have but a single crack, nor even use that, except in subordination to the convenience of others. Suppose the company did not choose to avail themselves of this Act, but had insisted on running the road on the land of private individuals, subject only to the provisions of the charter, which had given them the power, under certain terms, to cross public highways throughout the extent of their road. I can see nothing that would have prevented them. Indeed, it has been conceded that the company can now reach Boundary street, by running the road over private lands, under the sanction of voluntary purchases. It seems to me, that where the company undertakes to extend its road, not through public streets or squares, hut over private lands, there is nothing to prevent them from availing themselves of the ample powers of the Acts of ’27 and }28. These Acts, as well as that of 1835, give the company authority to take private property, at a valuation to be put upon it, in spite of the owner, through the intervention of commissioners. The power is so explicitly given, that its existence and extent, as ascertained in the charters, have not been questioned. The question is, whether it has been forfeited by a temporary acceptance of the provisions of the Act of 1832. The Act was not intended to deprive the company of any right which it had before, as to the mere location of the road. It did restrict the company to the mode of enjoyment of a privilege conferred on it; and whenever, and so long, as the company availed themselves of the provisions of the Act, they were bound by them.

They could not use steam engines. This'was the view that was before Judge Richardson, in one part of his opinion in the case of the State vs. Tapper, Dud. 135. The question before him was, whether the defendant, as the representative of the company, had not been guilty of a nuisance, in using steam engines in the populous part of the city? The inhibition to use such engines, was too explicit to be mistaken; and as well under the provisions of the Act, as upon the general principles of the common law, it was determined that the defendant had been guilty of a nuisance. The question now made, was not then before the court; and whether the company had the right to extend its road from Line street, under its original charter, was not considered or determined. Judge Richardson uses some remarks, in connection with the subject before him, that would indicate his own opinion, that the company had terminated its road at Line street, and that its power under its charter had been thereby exhausted. He uses this language : “ and after so plain an acceptance of the further right, under the Act of 1832, to extend the road below Line street, without the use of steam power, it would be hazardous to conclude that the company had the absolute right, under their original charter, to extend the road from Line to Boundary streets, and to use locomotive steam power in that part, in defiance of the prohibition of the Act of 1832.” The question was, whether the company could use locomotive power by steam, from Line to Boundary streets, in a populous part of the city, without committing a nuisance. This was a question which was to be decided by reference to the conduct of the company; and if it undertook to avail itself of the Act of 1832, it could not violate its provisions without incurring the penalties of the law. The remarks of the Judge did not necessarily enter into the judgment of the court, and are fairly referable to the only question then before him. The company now contends, that although its rights, under its original charter, to use steam power within certain limits, may have been determined by the judgment of the court, under the statement of facts before it, still, it has the power to extend its road, by virtue of that charter, in any direction that it may think will be to the interest and advantage of the company, acting within the provisions of the charter, and in subordination to the judgment of the court. A majority of us think its right to take the land of private individuals for the purpose of such extension, by either a voluntary purchase, or a purchase effected through the intervention of commissioners, to be appointed by the court, is unimpaired, and may be lawfully exercised.

The remaining question is one that might be of serious consideration, if it had not in effect been decided by the case of the Rail Road against Chappell. Under that decision, the company has all the powers of eminent domain, within the express limits of its charter, that had been possessed by the State. For the purpose of laying out and keeping up a public highway of a particular description, the company acts as the substitute of the State. The only difference is, that the attribute of sovereignty, which originally belonged to the State, has been transferred by express delegation to a corporate company. It cannot be an abuse of authority on the part, of the company, to exercise any or all of the powers that had been conferred upon it. It ought to act under a high sense of responsibility, and worthy of the powers that have been confided to it. It cannot usurp new powers, nor transcend those that have been delegated to it. Perhaps there may be cases, and when they arise it will be time enough to consider them, in which the company should be restrained by the interposition of judicial authority. But to judge of the necessity for requiring lands for the purposes of the road, is a power that belongs to the company by express grant. It is provided, both by the Acts of 1827 and 1835, that lands may be taken which may be required by the company. The requiring the land is the essential, and perhaps, only, condition. If the court can require the company to make to it some shewing of the necessity for requiring the lands, then the court must exercise its own judgment primarily in deciding on the propriety and necessity of the requisition. To do that, an inquiry on the part of the court must, in some cases, be instituted. It could not do that by personal inquiry or investigation, but would have to appoint agents or representatives’ to acquire, and convey to it the desired information. In such a state of things, there might be a conflict of opinion between the agents of the court and the directors of the company, and that, too, on a mere matter of opinion. One must prevail, and which should that be 1 The answer is, let the body that has the express authority of law determine for itself. What, then, it be may asked, is the office of the court ? Primarily, its office is confined to that of the appointing power, — an office which may frequently demand diligence of inquiry and impartiality of decision, as to the fitness of the commissioners, who are - to decide on the valuation of the land in a contest between the owner and the company. Should the court undertake to determine that there was no necessity for the company’s making the requisition of this or that land, it would transcend its jurisdiction, and would withhold the essential, and perhaps, only means which the company could employ for the accomplishment of its designs, under its charter. It seems to me that the court has been entrusted with mere ministerial functions, and it depends on the judgment and discretion of the company to call them into exercise ; or, in other words, no jurisdiction is given to the court to inquire into the necessity or propriety of the requisition. Nothing is submitted to its judgment, save the question, who shall be the commissioners? It is the interest of the company, and prudence will suggest the propriety of consulting that, as well as justice, in the exercise of the power that has been deputed to them, to guard against capricious or wanton interference with private rights. When they shall so far forget these considerations, as to abuse, in a flagrant manner, the powers confided to them, or to usurp other powers not granted, the law, in the plenitude of its remedies, will afford the means and measure of relief. The occasion will better suggest the mode of redress, than can be indicated by speculative conjecture.

There is another view which should be noticed before the motion is disposed of. The individual before the court, who is contesting the authority of the company, seems to contend that the company having already selected one track for the road, they must be confined to it. It is enough to say, that the company have come to a different conclusion, and now require other lands for their road. It would be hard to confine such a company to its first choice of lands in all cases. Trial and experience may have developed defects that could not have been foreseen, and which can only be remedied by a change of route. The errors of a first decision must be corrected by frequent alterations. It is well known that the company is continually making deflections and changes of location in the road, for the purpose of carrying out their plans with greater advantage to themselves and the public. The Legislature has thought proper to subject these matters to the judgment of the company and not to that of the court. The court cannot, either by appeal, for that is not provided in the'Act, or by a general supervisory power, undertake to control the company in the requisition which has been made for the appointment of commissioners to value the land in question. The application is made in the usual way — by motion. It has more than once fallen to my lot to hear such a motion, and I have only looked to the fitness of the commissioners that should be appointed. I may say that such has been, without exception, the common practice. The practice originated in the obvious meaning of the charter, and I can see no good reason for changing it now. With these views, a majority of us think that the circuit decision should be reversed, and that upon the renewal of the application on the part of the company, the Judge should appoint fit and impartial commissioners to make the valuation of the defendant’s land. Motion granted.

Richardson, O’Neall and Evans, JJ. concurred.

Wardlaw, J.

I concur as to the construction which has been given to the Act of 1832, and as to the right of the company to exercise the same powers in altering the road as in originally laying it out.

It seems to me that the answer which the respondent made to the notice served upon him, does not suggest that the land in question is not required for the purposes of the road, and that, therefore, the question considered in the circuit opinion was not properly presented for consideration. I concur, therefore, in the order which has been made. But I cannot permit the observations which have been made, as to the power of the company, and the duty of the court, when valuation of land is required, to pass without objection.

I think that the duty of the court is not merely ministerial, but judicial and highly responsible ; that the jurisdiction of the court depends upon the existence of the state of facts which authorizes the company to exercise that portion of the- eminent domain which has been entrusted to it — to wit: that the laud is required, that is, needed and demanded, by the company for some purpose, within its charter, for which the land might have been taken by the State ; that the proceeding should have been by suggestion and rule, or other formal mode; and that the suggestion or other entry of the company should contain an allegation of the facts necessary to authorize the interference of the court; that if this allegation be not traversed, it may be taken as admitted; but that it may be traversed, and if traversed, the issue must be tried according to the practice of the court. Whether lands taken by the company for the use of the road shall, in all cases, be vested in fee in the company, so that, the purpose for which they were taken having been abandoned, they may be sold ; or whether, in certain cases, the lands required shall still belong to the former owner and be subject at valuation only to an easement, so that the purpose for which they were taken having been abandoned, they shall remain in the owner discharged of the easement, may be sometimes a grave inquiry. Surely, it is not intended to be held, that the company may, without inquiry or even allegation, require the court to appoint commissioners to value an estate many miles from the road, and that, upon such requisition, the estate shall be vested in the company subject only to the obligation to pay the assessed value, although, in truth, it may be desired by the company only for vexation or speculation. Will it be said, that prohibition or other remedy may be had in such case 'l It seems to me more consistent with the dignity and justice which should pertain to every court, that the court should allow the chance of inquiry beforehand, lest it might possibly be made to minister, in the smallest degree, in so flagitious a proceeding.  