1794. Zylstra V. tion of Charleston cil are repealable by the act of the legislature. This seems to be the only check provided by the charter, for repealing or setting aside improper or illegal ordinances-the power The Corpora is not given to the courts of law. Several legislatures have sat since the passing of this ordinance in 1784, and they have never thought proper to call the propriety or legality of it in question. The presumption therefore is, that it fully met with their approbation. BURKE, J. The plaintiff was prosecuted and fined by the court of wardens in the penalty of 100%. for infringing a by-law, passed by the city council, and which subjected to the forfeiture of that sum, any one convicted of making soap or candles contrary to the mode prescribed by that by-law. He has applied for a prohibition upon this ground chiefly, that that court not having jurisdiction un der its charter, for the recovery of that amount, hath exceeded its authority, and that of course, the whole proceedings are void. To give this case a full consideration, I think it necessary to inquire, 1st. If the corporation pos sesses the legislative power they have exercised—that of enacting laws and creating penalties to 100%. or any greater amount that they may choose? 2dly. If they have a judiciary power for recovering these fines? 3dly. If they 1st. It is have also the executive power of levying them? to be observed, that the power which they have set up, It is hath no bounds or frontier that they shew to us. sovereign and unlimited, by their claiming authority (under the precedent of laying 100%) to inflict as far as 500l. of 'consequence to 1,000l. or any greater sum, as they may think proper. This is a pretension so extravagant, that it seems to me to be paying a very sorry compliment to law and common sense, to dwell upon arguments to the contrary. The claiming of such authority, by a body too of very inferior jurisdiction, not equal perhaps to our county courts, and publicly supporting this claim as they do, shews clearly, that our laws, and the decision of our courts are in a state of uncertainty that men of sense and reflection 1794. Zylstra The Corporation of Charleston. very little think of. Upon the slender basis of the confined authority which the corporation really possesses, to erect such a high superstructure, and insist publicly on their right to do so, proves another thing-it serves to illustrate upon a small scale, the intruding, usurping nature of power; and with how much greater than the energy of a wedge, it is eternally at work to force open for itself, more elbowroom and free license, than foresight itself or reason ever intended. The ground of this mighty claim to legislate and recover high penalties, to bind the person and property of a citizen without a trial by his peers, is the original charter of 1783, which extended their authority to that of a justice of the peace, and no more. In 1784, they applied to the legislature for an augmentation of power; they obtained that of imprisoning for non-payment of fines, and a juris. diction to the court of wardens coextensive in one instance with that which the court of common pleas possesses, viz. that of deciding causes as far as 20%. without the intervention of a jury; except where the title of land may come in question. In this, and in all cases beyond 20%. the court of wardens are completely shut out from intermeddling, in as express language as could be made use of. Thus, therefore, the by-law under which Zylstra was prosecuted, was utterly void; for the corporation was not vested with competent legislative authority; and they had as little judiciary power to try a cause and give judgment for 100l. as they held as legislators: therefore, for the court of wardens to hear and determine such a cause, without the intervention of a jury, was what no court in the state durst presume; it being repugnant to the genius and spirit of our laws, all of which recognise jury trial, which is also guarantied to us expressly by our constitution. The conviction, therefore, of Zylstra being nugatory, the execution or further proceeding ought, in my opinion, to be stayed. GRIMKE, J. of opinion that a prohibition should go, as there were no express words in the act of incorporation, or in any other act of assembly, giving power to the court of wardens to hear and determine on a case of this amount. WATIES, J. In the light in which I view this case, the question to be decided is of much importance to the citizens of the state, and involves the general jurisdiction of the court of wardens. For however the decision may appear to affect that court in a single instance only; yet, if in this its jurisdiction is defective, it will be difficult to shew that any part of it is not so, beyond what may be exercised by justices of the peace. 1794, Zylstra V. The Corpora tion of Charleston. I am willing to admit that the by-law itself is a valid one. If it restrained the exercise of an inoffensive trade, it would not be so; but it is made to restrain one that is both offensive and dangerous. It is, therefore, calculated to guard the comfort and safety of the citizens; and the benefit of a by-law, is generally the touchstone of its va- 1 Bac. 505. lidity. I am not, indeed, fully satisfied that the city council have the power to impose penalties to any amount; but I shall not now make it a question, as my decision in this case will be on other grounds. The only question I shall consider is, whether the court of wardens can hold plea of a suit for the recovery of this penalty? I am of opinion that it cannot, and this opinion is founded on the following reasons-1st. Because the power claimed is not granted by any express words of any general law. 2dly. Because, if it is expressly granted; yet it is void, as being repugnant to the constitution of the state. 1. In every question on any corporate right, and in every question on the jurisdiction of an inferior court, the right should be manifest. If it is involved in any doubt, this circumstance alone is a strong legal objection to it. The authorities in support of this position are numerous and explicit; it is not, therefore, necessary to recite them all, a few will suffice. The counsel for the court of wardens have indeed offered strong and forcible reasons for implying the power claim 1794. Zylstra V. The Corpora- Public Laws. ed by that court. It is urged, that the law for incorporating Charleston, gives a power to the city council to affix and levy fines, without any limitation of their amount; that a subsequent law gives to the court of wardens a power to commit for fines and penalties, which necessarily includes the power of previously determining any suits respecting them. For how, otherwise, can that court proceed to commit for fines and penalties, if judgment be not first had therein for them? I am sensible of the force of this reasoning, and if it were permitted in any case, that implication might give jurisdiction to an inferior court, I would say it did so in this; but the law forbids any such construction, and declares that no powers, except such as are generally considered as incidental, shall ever be intended to belong to an inferior court, unless they are expressly given. Now there is no law which expressly declares that the court of wardens may hold plea of a case like this, nor is the power incidental; this court therefore, may safely declare that such a power does not belong to it. But as possibly this construction may seem too rigid a one, I shall rest my opinion on another ground, which appears to me to be much stronger. 2. Admitting then, that the legislature intended to confer this large jurisdiction on the court of wardens, and that it had declared this intention in words sufficiently explicit; yet I have no difficulty in saying that the law in this respect is void, as being contrary to the constitution of the state. By the second section of the 9th article, it is declared that "No freeman of this state shall be in any manner de"prived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land." And by the sixth section of the same article, it is further declared, that "The trial by jury, as heretofore used in this state, shall "be for ever inviolably preserved." How then can a law be valid, which constrains a citizen to submit his person and his property, to a tribunal, that proceeds to give judgment on both, without the intervention of a jury? Does these words of the constitution," or "by the law of the land," authorise it? Do they mean any law which may be passed, directing a different mode of trial? Such a construction would be incompatible with the declaration of this privilege; it would be taking away all the security which that intended to give it; it would do more, it would be making the constitution itself authorise the means of destroying a right which it afterwards declares shall be inviolably preserved. For if the law may abridge the trial by jury, it may also abolish it; and this great privilege would be held only at the will of the legisla ture. But when we consider the true import of these words, and allow them the construction which all the commentators upon magna charta (from whence they are taken) have concurred in giving them, they will then be found to afford a real security to the citizens for the preservation of this right, and to become an effectual bar to the innovations of the legislature. 1794. Zylstra V. The Corpora tion of Charleston. I shall not resort to all the writers on this subject; it will be sufficient to quote the exposition given of these words by Dr. Sullivan, whose commentary upon magna charta, is perhaps the best that has been written; it is an illustration of Lord Coke's reading upon it, which no English lawyer 2 Coke's Inst. has ever yet ventured to question. 50. "The words the law of the land, mean the common law Sull.Lect. 384. "or acts of parliament, down to the time of Edw. II. "which are considered as part of the common law: vide "Hale's H. C. L. 7. which does not in all cases require a Sull.Lect. 384. "trial by peers." It will be sufficient to point out in general the principal cases, where this lex terræ, or as Lord Coke calls, the due process of law, superseded the trial per pares. "First then, if a man accused of a crime pleads guilty, so "that there is no doubt of the fact, it would be an absurd "and useless delay to call on a jury to find what is already "admitted; accordingly, by the law of the land, judgment "is given on the confession. So in a civil action, if the |