26 S.C.L. 501 | S.C. Ct. App. | 1837
Curia, per
In the argument here, several questions have been raised and discussed, on the regularity of the proceedings of the Court, and on the sufficiency of the information, warrant, and conviction, in point of form. These points I do not regard as properly presented for consideration, on a motion for prohibition. The proceedings before
This presents a very grave question, and the discussion of it, if equal to its importance, might occupy a great deal of time, and would afford employment for the greatest ability.
The 2d sect, of the 9th article of our State Constitution, part of which I have quoted, is drawn, as every one knows, from Magna Charta, adopted under King John, and subsequently confirmed by other princes, and lastly by Edward II.
The 2d section had already secured life, liberty and property, except by the judgment of peers, or by the law of the land. When the 6th section declares that the trial by jury, as heretofore used, shall be preserved, I suppose it meant only that it should continue to be used except where it was superceded or dispensed with by the “law of the land,” under the former section. In the construction of these words, it has been held, both in England and here, that they do not mean merely the common law and statutes, but that they recognize and embrace the proceedings of the various courts of ascertained jurisdiction, known to the law, “as the several matters determinable, summarily, by one or more
I cannot but think it would be too rigid a construction of the 6th section, concerning the trial by jury, to say that the Legislature can, in no case, in all time to come, confer upon such courts as have been referred to, as exceptions to trial per pares, any jurisdiction, in matters civil or criminal, which they had not at the adoption of the Constitution. I think it more liberal and sensible to construe the 6th in connection with the 2d section. That fundamental instrument should not be construed like a deed conveying an estate or granting a power. It is a political regulation, and should receive such interpretation as to secure the peace and good order of society, so far as is compatible with the liberty of the citizen.
We are led to inquire how stood the subject of vagrancy, at that time. Idle and disorderly persons, vagrants, are terms often occurring in the old statutes. They have been from time immemorial, in England, subject to the summary jurisdiction of justices of the peace. (Com. Dig. Justices; Burn’s Justice, Vagrants.) And by the Stat. 17 Geo. 2, ch. 5, no less than seventeen different classes or descriptions of persons are declared to be vagrants, who may be apprehended, tried in a summary manner, and on conviction, be imprisoned and whipped.
Our Act of 1787,
The Act of 1836, under which this conviction has been made, enacts that if any person shall, within ten miles of the South Carolina College, keep or use any house for gaming, or keep or use any faro bank, or other ♦device for gaming, he shall be proceeded against as a vagrant, and on conviction, shall be deemed such, and be required to give security for good behaviour, and that he will not offend against the Act
It is objected that it is beyond the power of the Legislature to constitute this new class of vagrants, and authorize them to be proceeded against as such, under the provisions of the Act of 1787, because it deprives a man of his liberty without a trial by his peers ; because.the trial by jury is not preserved as heretofore used. I consider the Acts against vagrants, as they are embraced in those of 1787 and 1836, as highly beneficial ; and if carefully and rigidly enforced, that they would prevent much of the crime that is perpetrated in the country. If, however, they are violations of the constitutional rights of the citizen, I should be very unwilling to lend the aid of this court to enforce them. “The maxim then, is,” says Dr. Sullivan, “that no man shall be taken and committed to prison, but per judicium parium, vel per legem terrae.” 2 vol. Lect. 265. According to the interpretation which, I have endeavored to show, has been put upon those words, even iu connection with the 6th Section of the 9th Article, concerning trial by jury as heretofore used, can it be said, that a person charged under either Act, and carried before the court of justices for vagrancy, is taken and imprisoned otherwise than by the law of the land, or due process of law ? I cannot come to that conclusion ; the court which tries him is known to be the law of the land ; has been, from time immemorial, part of the law of the land; and its whole proceedings are by due process of law ascertained and established.
Here we naturally come to inquire, what are the true ends and purposes of the Acts against vagrants ? I think they have been imperfectly* understood, at least so far as relates to the jurisdiction and proceedings of the magistrates. I think it is not the main purpose of those Acts, to proceed by way of punishing for an offence; for vagrancy in itself, can hardly be deemed a distinct offence. The Acts seem rather intended to afford some adequate security to the public, against the danger to be apprehended from the several classes of persons enumerated, all of whom, from their want of honest employment, or from their vicious pursuits, may well be considered as dangerous to society. The proceeding at first, therefore, is merely inquisitorial, to ascertain the means of living, and the mode of life, of the suspected person ; and if it be found that he has no visible means of living, or pursues a vicious aud dishonest course
In case the bond is given for good behaviour, the object to be attained is accomplished ; the security against apprehended mischief is afforded. If it be not given, the suspected person is turned over to the Court of Sessions. That Court, on looking into the proceedings and evidence, may discharge, if they are insufficient. Under the Act of 1836, the grave question would arise, whether, if the Court should not see fit to discharge, it would be authorized to sell the services of the persons charged, or to order him tobe whipped,or to be put to hard labor. These are the alternatives under the Act of 1787 ; and I think they have been generally practised on, although the same constitutional scruples have been often urged. Yet, it would seem not to be a violation of the right of trial by jury as heretofore used, for the Court, as before remarked, was a part of the law of the land, and the trial there, was always without jury. The question, whether, under the Act of 1836, the Court could proceed to act on the conviction of the justices, without further trial, does not necessarily arise here, and no opinion will lie expressed by the Court, It is a question which the Circuit Court must first decide for itself.
Supposing, however, under either Act, that the Court should feel itself fettered by the constitutional objection, or should not be disposed to adopt the rigorous alternatives provided in case the defendant has not given the security, there is another course witch may be pursued by the Court, in virtue of its general powers of criminal jurisdiction. The Court being in possession of all the evidence taken before the justices, if it should not see fit to discharge the offender, may order him to be indicted there for such offence as the evidence shows him to have committed, and bind him over for *his appearance, or commit him for trial. If no distinct offence be exhibited, the Court may still, if the evidence warrant it, require him, as a measure of precaution, to give security for his good behaviour, and on failure, commit him as a suspected person. If this view be correct, the Acts are divested of those features which are apt to be regarded as rigorous and oppressive. It follows, I think, that a proceeding for vagrancy, would not be barred by a prosecution pending in the Court of Sessions for gaming. If the security is given to the justices, there is an end of the proceeding ; for it is clear, that it is not meant as a punishment for the offence of gaming. The Act of 1836, seems to contemplate a prosecution for that offence separately, by mating a provision for increasing the costs.
The Court is of opinion that the Judge below was right to refuse the prohibition ; and the motion here, to reverse his decision, is dismissed.
3 Dess. Eq., 478; 2 Bail., 677; 1 Bay., 391; 1 Bur., 471; 2 Sp., 767; 5 Rich., 107, 115; 10 Rich., 440. An.
1 Bay., 389. An.
5 Stat., 41. An.