
    
      The State, ex relatione Mrs. Kohne, vs. James Simons and B. C. Pressley.
    
    1. The Act of 1835, (7 Stat. 472, 3,) provides that it shall not be lawful for a person to bring into this State, as a servant, any slave who has been carried out of the same, if during the absence of such slave, he or she has been in any State North of the Potomac, &c.; and any person violating the Act is subjected to a forfeiture, and the slave is liable to be sold. The slave of the relatrix in prohibition had been seized by a constable, upon information made by one of the respondents to the other, (a Magistrate,) as liable under the Act of 1835. These respondents were about organizing a Court of Magistrates and Freeholders, under the 7th section of the Act, to pronounce the judgment of forfeiture, and cause the slave of the relatrix .to be sold. Conceding the unconstitutionality of the Act, the respondents contended that the writ of prohibition would not lie, as they were private persons not acting in a judicial capacity; but their acts being preliminary to, and part of, the proceedings necessary to produce a condemoation of the slave, according to the Act, the Court held that the writ of prohibition lay to restrain them, as an inferior jurisdiction, acting under a false assumption of judicial authority, at any stage of the proceeding.
    2. The Act oí 1835, (7 Stat. 472,3,) not being sanctioned by the law existing at the adoption of the State Constitution, and not proceeding by the common law mode of trial by jury, is so far unconstitutional and void.
    
      Before O’Neall, J. at Chambers, Charleston, March 7th, 1842.
    
      Report of the presiding Judge.
    
    This was a motion for prohibition. The suggestion stated that Mrs. Kohne was the owner of a female slave called Emma, who had been seized by a constable, under an information made by James Simons to B. C. Pressley, a magistrate — that the said slave had been carried before him to be condemned as forfeited by the owner, for being taken by her mistress to the North of the Potomac, into some State or States from which slaves are forbidden to come into this State; and that the respondents were about organizing a Court of two Magistrates and five Freeholders, under the Act of 1835, (7 Stat. 472, 3,) to pronounce the judgment of forfeiture, and cause the slave to be sold.
    I most sincerely regret the necessity imposed upon me, of deciding as to the validity of a State law ; and the more especially, that from my other duties I shall not be able to so satisfactorily consider the subject, as the interest manifested by the parties would seem to require. But as well and as briefly as I can, I will state my reasons for the conclusion to which I have come.
    The Act of 1835, (pages 36, 37,) provides, “ Neither shall it be lawful for a person to bring into this State, as a servant, any slave who has been carried out of the same, if at any time during the absence of such slave from this State, he or she hath been in parts or places situate in Europe,, in the. West Indies, or Mexico, or any part of South America, or in any State north of the Potomac, or city of Washington; and any person who shall bring into this State any slave, contrary to the meaning of this Act, shall forfeit and pay the sum of $1000, for each such slave, to be recovered in an action of debt, in any court having jurisdiction ; and each and every such slave shall be forfeited, as is hereinafter provided in this Act; Provided, that nothing herein contained shall prevent any owner from bringing into this State any runaway slave who may have been retaken.”
    The seventh section provides, “that it shall and may be lawful for any white person, on the arrival of any slave into this State, from any other State, or foreign port, to arrest and carry him or her before some Magistrate of the district or parish where he or she may be taken ; and it shall be the duty of the sheriff, or any constable of the district or parish into which such slave shall be brought, as aforesaid, on information given, to arrest any slave arriving, brought, or introduced, into this State, from any other State, or foreign port, and carry him or her before some magistrate as aforesaid, who shall forthwith commit such slave or slaves to prison, and there keep him or her until the owner or person introducing such slave or slaves into this State, shall make oath, that at no time during the absence of such slave or slaves from this State, he, she, or they, have been in any part or place prohibited by this Act; and should such owner or person introducing such slave or slaves, neglect or refuse to make such oath, for the space of ten days after he or she shall have received notice of the arrest of such slave or slaves, and of the cause thereof, it shall be the duty of the magistrate aforesaid, to form a court of two magistrates and five freeholders, and on proof to the satisfaction of such court, that such slave or slaves have been beyond the limits of this State, and that such owner or person who shall have introduced them into this State, as aforesaid, after having been duly served with the notice of such slave or slaves having been arrested, as aforesaid, and of the cause of such arrest, has neglected or refused to make oath as aforesaid, it shall then be lawful for the said court to order the said slave or slaves to be sold at public sale, and the proceeds of such sale shall go and be appropriated, one half to the use of the State, and the other half to the use of the informer.”
    These sections are thought to be contrary to those parts of the State constitution which declare that no man shall be deprived of his life, liberty, or property, but by the judgment of his peers, or the law of the land, and that the trial by jury, as heretofore used in this State, shall be forever inviolably preserved. The very able judgment of Mr. Justice Waties, in Zsylstra’s case, 1 Bay, 382, has very well defined the ancient meaning of the law of the land. But in this State, I think, it has a little wider meaning than is there given to it. I suppose it may very well comprehend the statute and common law, existing at the forming of the constitution. This view is much strengthened by the provision declaring that the'trial by jury, as heretofore used in this State, shall be forever inviolably preserved. It, as read in connection with the preceding part, would give to the citizen all the guarantees of life, liberty, and property, arising from the common and statute law of this State, as administered in the courts of this State of superior or limited jurisdiction, at the adoption of the constitution. White v. Kendrick, 1 Brev. Rep. 469. State v. Maxcy, 1 M’Mull. 501.
    It is true, that a Court of Justices and Freeholders, at that time, was an acknowledged tribunal for the trial of slaves, free negroes, Indians not in amity with this government, mulattoes, and mustizoes, for crimes, but such a thing as such a court having jurisdiction to impose fines, or declare forfeitures, against free white persons, was altogether unknown. In the single instance of vagrancy, it was an acknowledged tribunal, adjudging the rights of white persons, but there it had not final jurisdiction, and was more in the character of a commission of the peace than any thing else.
    The Acts subsequent to the constitution, which provided for a summary forfeiture of slaves brought into this State, have never, that I am aware of, been enforced, and if they have, they have never met with a judicial approbation. Indeed, it is impossible that the rights of property can be defeated by any proceeding so utterly inconsistent with a due course of law.
    It is objected that the writ of prohibition does not lie. But it is clear that the whole proceedings before the magistrate are but the incipient stages by which the forfeiture is 
      to be carried out. He has no jurisdiction of the matter, and the writ of prohibition must be ordered to prevent all further proceedings. It is, therefore, ordered, that the writ of prohibition, as prayed by the suggestion, do issue.
    
      Grounds of Appeal.
    
    1. Because the writ of prohibition does not lie, to restrain private persons, and it is submitted that the defendants bear no other character than that of private persons in this proceeding.
    2. Because the A. A. 1835, section 7, is not contrary to the constitution of this State.
    
      Simons and Pressley, for the motion.
    
      Petigru and Lesesne, contra.
   Curia, per

O’Neall, J.

The suggestion states that Eliza Kohne is the owner of a slave called Emma, who had been seized by a constable, under an information made by James Simmons, to the magistrate, B. C. Pressley, and had been carried before him to be condemned, as forfeited by the owner, for being taken by her mistress to the north of the Potomac, into some State or States from which slaves are forbidden to come into this State; and that the respondents, under the Act of 1835, (Acts of ’35, pages 36 and 37,) are about organizing a Court of two Magistrates and five Freeholders, to pronounce the judgment of forfeifeiture, and cause the slave to be sold. The writ of prohibition was prayed for, and granted, on the ground that the Act authorizing these proceedings was unconstitutional and void. The question here has been presented in a twro fold point of view. 1st. Will the writ of prohibition lie 7 2nd. Is the Act unconstitutional Í 1st. In considering the first question, it will be considered as conceding the unstitutionality of the Act. It then assumes, that the defendants are merely private persons, acting upon their own authority, and not in a judicial capacity. It will, however, be seen, on examining the 6th and 7th sect, of the Act ’35, (7 Statutes at Large, 472, 473,) that the acts of the defendants are preliminary to, and part of, the proceedings necessary to produce a condemnation of the slave, as forfeited according to the provisions of the Act of ’35. Regarded in this way, the only question is, has the inferior jurisdiction, which has thus commenced to act, jurisdiction of the subject matter ; if it has not, the writ of prohibition lies to arrest its proceedings in any stage. The analogous case constantly occurring in our Courts, where a man, who alleges he is a white man, is charged before a Court of Magistrates and Freeholders with a crime, is an illustration of the rule, there the writ of prohibition lies to arrest the proceedings in any stage, until the question of color be determined, and if it be found for the relator, then the prohibition is made absolute and perpetual. So in this case, if the Act be unconstitutional, the whole authority for the proceedings is taken away, and the writ of prohibition must go against this false assumption of judicial authority.

2nd, The 6th section of the Act of ’35, provides for the case of a slave carried out of the State for a time, and during that time visiting any State north of the Potomac, or City of Washington, and afterwards being brought into this State, and in such case declares the person introducing such slave into this State to be liable to a forfeiture of $1000, and that such slave shall be forfeited. The 7th section provides the mode of proceeding to consummate the forfeiture of the slave. It authorizes any white person or constable, on information, to seize the .slave, and carry him or her before some magistrate, “ who shall forthwith commit such slave to prison, and there keep him or her, until the owner or person introducing such slave into this State, shall make oath, that at no time during the absence of such slave from this State, he or she have been in any part or place prohibited by this Act. And should such owner or person introducing such slave neglect or refuse to make such oath for the space of ten days after he or she shall have received notice of the arrest of such slave, and of the cause thereof, it shall be the duty of the magistrate to form a Court of two Magistrates and five Freeholders, and on proof to the satisfaction of such court that such slave has been beyond the limits of this State, and that such owner or person who shall have introduced such slave into this State, aforesaid, after having been served with the notice of such slave being arrested, as aforesaid, and of the cause of such arrest, has neglected or refused to make oath as aforesaid, it shall then be lawful for said court to order the said slave to be sold at public sale, and the proceeds of such sale shall go and be appropriated one half to the State, and the other half to the use of the informer.” The 2nd sec-"; tion of the 9th article of the Constitution of this State declares that “ no free man of this State shall be in any manner deprived of his life, liberty or property, but by the judgment of his peers, or by the law of the land.” The 6th section of the same article declares “ that the trial by jury, as heretofore used in this State, shall be forever inviolably preserved.” By these sections the forfeiture of the slave under the 6th and 7th sections of the Act of’35, must be judged. That every free white person resident in South-Carolina is in general protected in life, liberty and property, until the same be1 forfeited, in a due course of law, cannot be questioned. This due course of law is most usually and satisfactorily administered by a trial by a jury of twelve good and lawful men of the vicinage. To this there are some exceptions. But to be such it must appear they are caused by the “law of the land.” First then, what is meant by the law of the land? In this State, taking as our guide Zylstra’s case, 1 Bay, 384; White v. Kendrick, 1 Brev. 471; The State vs. Coleman and Maxcy, 1 M’Mull. 502: there can be no hesitation in saying, that these words mean the common law and the statute law existing in this State at the adoption of our constitution. Altogether they constitute the body of law, prescribing the course of justice to which a free man is to be considered amenable, in all time to come. The jurisdiction of Magistrates as high as £5, then existing, and their authority, conjointly with freeholders, to declare a man a vagrant in specified cases, are parts of the law of the land, and it is hence unnecessary, in such cases, that there should be a trial by jury. If there had been any authority conferred on magistrates and freeholders to divest the owner of a slave of his property, for carrying him out of the State, and afterwards bringing him back, before our Constitution, it might be that the offence now carved out by the Act of ’35, being of the same kind, might be tried by" the same forum. But no such law can be found, and none such ever before existed. All the Acts operating upon slaves directly, and to punish them, do not fall within the inhibition of the Constitution. For a slave is not a freeman. Neither do the Acts for the trial and punishment of free negroes, mulattoes, mustizoes, Indians, (except free Indians in amity,) fall within this provision of the Constitution, for the forum to which they are amenable existed and was part of the law of the land at the adoption of the Constitution. No countenance, therefore, for this proceeding under' the Act of ’35, can be found in any of the Acts for the regulation of slaves or free negroes. It is next necessary to test the Act by what is meant “ by the judgment of his peers” and “the trial by jury, as heretofoie used in this State, shall be forever inviolably preserved.” The “judgment of his peers ” means in general the great unalienable common law mode of trial by twelve good and lawful men of the vicinage, in the presence of the accused, and by the oath of a witness. And the words “ the trial by jury, as heretofore used in this State, shall be forever inviolably preserved,” mean that in all cases where it had not been previously abandoned, it should be continued to every freeman, and of course to every woman and child ; they being embraced in the larger general terms used. The property of Mrs. Kohne, her slave, is attempted to be forfeited by a trial before two Magistrates and five Freeholders. This is not a trial by jury, in any sense in which the words have ever been legally used; neither could a judgment pronounced by them be regarded as the judgment of her peers. It hence follows that the Act of ’35, having undertaken to clothe a forum with the power of depriving Mrs. Kohne of her property, which is not sustained by the law existing at the adoption of the Constitution, and which does not proceed by the common law mode of trial by jury, is so far unconstitutional and void ; and that, therefore, the whole of the proceedings under the Act of ’35 are illegal. The motion to reverse the decision is dismissed.

Johnson, Johnston, and Dunkin, Chancellors, with Evans, Butler, WARDLAwand Frost, JJ. concurred. Judge Richardson did not hear the argument.  