TIT. 107. pointment, he shall not be permitted to qualify or act under

A. A. 1799.

that appointment.

76. And be it further enacted, That justices of the quorum 2 Faust 262. and of the peace, shall in future be elected or appointed by the legislature as heretofore.*

77. And be it further enacted, That when any former district shall have been divided in two or more districts by an act, entitled, "An act to establish an uniform system of judicature," passed in December, in the year of our Lord one thousand seven hundred and ninety-eight,t the justices of the peace appointed for the former district, shall be, and they are hereby appointed magistrates for the district within which they reside.

78 And be it further enacted, That all magistrates under the age of thirty-five years, who are not otherwise exempt by law, shall be liable to do militia duty.

79. And be it enacted, That from and after the first day of January next, the jurisdiction of justices of the peace, and of justices of the quorum throughout this state, shall extend to all matters of debt, or other demand, arising from contract, and in no other case of a civil nature whatsoever, to twenty dollars, to be recovered by the same proceedings as have been heretofore used in the trial of causes small and mean, before such justices as aforesaid.‡

* This provision seems to be quite unnecessary.

See Title 66, Districts and Parishes.

Concerning the jurisdiction of justices of peace, there has been considerable contest in our courts.

In the case of White v. Kendrick, which was before the constitutional court of appeals at Columbia, in April 1805, the question was the constitutionality of a certain act of the legislature, which had recently passed, encreasing the jurisdiction of justices of peace, in all cases of debt, secured by bond, note, &c. to the amount of thirty dollars, under certain limitations and restrictions; but making no provision for trials by jury. [See sect. 80, 81, &c.]

The 6th section of the 9th article of the state constitution, which was established in June 1790, declares, that "the trial by jury as heretofore used in this state, shall be for ever inviolably preserved."

Before the establishment of this constitution, the jurisdiction of justices of peace had been, at different times, encreased, reduced, and variously modified.

The county court system, which was originally intended to have equal operation throughout the whole state, was never practically established in the lower sections of it; and being rejected by the people of those parts, it was aferwards established by law exclusively in the upper and middle country.

In the year 1747, justices of peace were empowered to hear and determine all cases where the debt, or damages demanded did not exceed 201. current money.

Their jurisdiction was reduced by the county court act of 1785, to twenty shillings, and limited to cases of debt only.

The amendatory act of 1786, enlarged it to five pounds sterling, in matters of debt, liquidated by bond, note, or other writing, with a right of appeal to the county courts, in any matter above twenty shil lings.

TIT.107.

80. And be it further enacted, That justices of the peace and of the quorum, except in the city of Charleston, throughout the state shall have jurisdiction in all cases of debt, secu- A. A. 1801.

An act of 1787, reduced their jurisdiction to three pounds; and an act of 1788, again extended it to five pounds and so it remained at the adoption of the constitution in 1790.

In those parts of the state where county courts were not established, the jurisdiction of justices of peace remained as it stood prior to the adoption of the county court system.

The case was determined in November 1805, when three judges against one, held that the act of assembly in question, was unconstitu tional and void. The ground of this decision was, that the exercise of such a jurisdiction by a justice of peace, as the act of assembly authorized, without the assistance or intervention of a jury, would be a manifest violation of the constitutional right of the citizen, if the privi lege of trial by jury should be claimed; and there was no provision made by the act for allowing such privilege.

The court considered itself as being a co-ordinate branch of the government; and that it not only had the power, but was under the strongest obligations of duty to pronounce the law unconstitutional. Each department of government, within its proper sphere, must be the exclusive judge of its own constitutional powers. The legislative branch have an undoubted right to enact any law that it may conceive constitutional: but the judiciary department is not bound to carry it into execution, unless it should appear to consist with the constitution. It is the peculiar province of the judges to expound the laws they execute upon constitutional and legal principles, and so as to preserve consistency, uniformity and certainty. The constitution is the fundamental law, the law paramount, and ought to govern and control all laws made under it. It is therefore an important and legitimate exercise of judicial authority, to enquire into and decide upon the constitutionality of legislative acts, where they come before the courts of justice as rules of decision, or laws to be executed.

The precise extent of the jurisdiction of justices of peace, in matters of contract, afterwards came in question, in the case of Collier v. Rogers, which was before the same court of appeals, in April 1806, and was decided in November next afterwards.

Three judges against one, were of opinion the jurisdiction extended to twenty dollars, and not beyond. The grounds of their opinion were, that at the time when the state constitution was established, a justice of peace, in any part of the state where county-courts were in operation (comprehending much the largest portion of the whole state) might lawfully exercise jurisdiction to the amount of five pounds sterling. It was therefore constitutional for the legislature to authorize justices of peace to exercise jurisdiction to the same amount after the state constitution was established; and as well in those parts of the country where county courts did not exist as where they did. And although the legislature could not enlarge their jurisdiction beyond that amount, yet they were competent to reduce it to any lesser sum, that might be conceived necessary or expedient. The legislature had by an act passed in 1799, limited the jurisdiction to twenty dollars, in conformity with the amendment of the 9th article of the constitution of the United States, securing the right of trial by jury in suits of common law, where the value in controversy shall exceed twenty dollars.

By an act passed in December 1791, it is declared, "that all justi ces of peace where county courts are not established, shall have the same jurisdiction that justices of the peace have where county courts are established;" which seems to be a legislative exposition of the constitution on this point.

2 Faust 397. Jurisdiction of magistrates extended.

TIT. 107. red by bond, note or bill, or liquidated account, to the amount of thirty dollars.

A. A. 1801.

81. Provided always nevertheless, That all judgments to be 2 Faust 397. given by magistrates as aforesaid, for the sum of thirty dollars, shall not be enforced under three months, if the defendant shall give bond and approved security, that he will produce sufficient property to answer said debt at the expiration of the said three months; and that all other judgments to be given by such magistrate for any other sum, above the sum of twenty dollars, shall not be enforced for two months, if the defendant shall give bond and security to produce sufficient property to answer said debt at the expiration of the said two months:

82. And provided always, That nothing in this act contained shall extend to preclude any person or persons who may conceive him, her or themselves to be aggrieved by the decision of any magistrate, from the right of an appeal, as by law is in other cases provided.

A. A. 1804. 83. Whereas it is expedient and necessary to increase the 2 Faust 548. ` number of justices of the quorum and justices of the peace in

The number

of, in the se

veral districts, encreased.

several districts in this state :

Be it therefore enacted, That from and immediately after the passing of this act, the number of justices of the quorum and justices of the peace in the several districts in this state, hereafter mentioned, shall be encreased in manner following, that is to say:

For the district of Fairfield, three justices of the quorum, in addition to the number already allowed by law.

For the district of Edgefield, three justices of the quorum and three justices of the peace, in addition to the number already allowed by law.

For the district of Chester, one justice of the quorum and one justice of the peace, in addition to the number already allowed by law.

For the district of Union, two justices of the quorum, in addition to the number already allowed by law.

For the district of York, two justices of the quorum and one justice of the peace, in addition to the number already allowed by law.

quorum

For the district of Greenville, three justices of the and four justices of the peace, in addition to the number already allowed by law.

The judge who dissented was of opinion, that as in a part of the state, the citizen might lawfully claim a trial by jury, in any case where the value in controversy exceeded twenty pounds current money, (nearly three pounds sterling) he could not be deprived of this privilege after the establishment of the constitution, by which the right of trial by jury as theretofore used, was expressly secured.

The case of Melton v. The Administrators of Ellison, decided in the same court, at Columbia, in May 1810, settled the question; the whole court concurring in opinion that the act of 1799, fixing the jurisdiction of justice of peace at twenty dollars, had been rightly determined in the case of Collier v. Rogers.

For the district of Spartanburgh, two justices of the quorum and two justices of the peace, in addition to the number already allowed by law.

TIT. 107.

A. A. 1804.

For the district of Richland, one justice of the quorum and St. Faust 549. two justices of the peace, in addition to the number already allowed by law.

For the district of Winton,* two justices of the quorum and three justices of the peace, in addition to the number already allowed by law.

For Lewisburgh, in the district of Orangeburgh, one justice of the quorum, in addition to the number already allowed by law.

For St. John's, Colleton, one justice of the quorum and one justice of the peace, in addition to the number already allowed by law.

For Pendleton, five justices of the quorum and twelve justices of the peace, in addition to the number already allowed by law.

For the parishes of St. Philip and St. Michael, two justices of the quorum and three justices of the peace, in addition to the number already allowed by law.

For Newberry district, two justices of the quorum and three of the peace, in addition to the number already allowed by law.

For Laurens district, two justices of the quorum and four of the peace, in addition to the number already allowed by law.

For the parish of Prince William, one justice of the peace, in addition to the number already allowed by law.

For the parish of St. Bartholomew, two justices of the quorum and three of the peace, in addition to those now allowed by law.

For Abbeville district, four justices of the quorum in addition to the number already allowed by law.

For the election district of Williamsburgh, two justices of the quorum and two of the peace, in addition to those already allowed by law.

For the parish of St. Luke, one justice of the quorum and two of the peace, in addition to those already allowed by law. For the election district of Kingston,t two justices of the peace, in addition to the number already allowed by law.

For the district of Marion, two justices of the quorum and two of the peace, in addition to the number already allowed by law.

For St. George's, Dorchester, one justice of the quorum and one of the peace, in addition to the number already allowed by law.

For the district of Kershaw, one justice of the quorum and one of the peace, in addition to the number allowed by law.

* Quere, if Barnwell district is not meant ?

Horry district.

TIT. 107.

A. A. 1804.

2 Faust 549.

ces of quorum ex officio.

For the parish of St. James, Goose-Creek, one justice of the quorum and two of the peace, in addition to those allowed by law.

For the parish of All Saints, four justices of the quorum and five justices of the peace.

For Prince George, Winyaw, one justice of the peace, in addition to those already allowed by law.

For St. Paul's parish, two justices of the quorum and one justice of the peace, in addition to those already allowed by law.

For Lancaster district, two justices of the quorum, in addition to those now allowed by law.

And be it further enacted, That Darlington district shall have one justice of the quorum and one justice of the peace, in addition to the number now allowed by law.

Certain pub- 84. And be it further enacted, That the treasurers of the uplic officers deand lower divisions of the treasury, the clerks of the clared justi per several courts of record in this state, the ordinaries, registers of mesne conveyance and notary publics, shall be, and they are hereby declared to be, ex-officio, justices of the quorum, so far as relates to the duties of their respective offices, in addition to the several justices of the quorum heretofore appointed; any law, usage or custom to the contrary notwithstanding.

A. A. 1805. 85. Be it enacted, That it shall and may be lawful to and Authorized to for any justice of the peace and quorum of this state, to issue summon wit- a summons, directed to any person or persons, whose testimonesses in cauny may be necessary for the investigation of any cause which shall be depending before him or them; which said summons shall be signed by the justice or justices who shall issue the

ses before them.

A. D. 1806.

The number

of justices of

the quorum and peace increased.

same.

86. Whereas it is expedient and necessary to increase the number of justices of the quorum and justices of the peace in several districts in this state:

Be it therefore enacted, That from and immediately after the passing of this act, the number of justices of the quorum and justices of the peace in the several districts in this state, hereafter mentioned, shall be increased in manner following, that is to say:

For the district of Chester, two justices of the quorum, and two justices of the peace, in addition to the number already allowed by law.

For the district of York, one justice of the quorum, in addition to the number already allowed by law.

For the district of Newberry, one justice of the quorum, in addition to the number already allowed by law.

For the district of Lancaster, one justice of the quorum, and one of the peace, in addition to the number already allowed by law.

For the district of Fairfield, one justice of the quorum, and four justices of the peace, in addition to the number already allowed by law.

For the district of Greenville, three justices of the quorum, and four justices of the peace, in addition to the number already allowed by law.