§ 386. Under the constitution of Kentucky it has been held, that the clause in the constitution securing the right of trial by jury, does not enlarge the right of trial by jury so as to extend it to cases where, previous to the constitution, that inode of trial did not belong to the party as a matter of right; and in all cases where the legislature had withheld or might withhold the trial by jury before the constitution, they might do so after the constitution went into operation. That government never did, either before or since the constitution, extend or grant the right of trial by jury to every controversy between it, and any of its citizens. That to criminal and penal offences it did belong, but not to public debtors. It is upon this principle that taxes were always recoverable, not only without jury, but even without judge, and the assessment of the ministerial officer was made to operate as an execution on the citizen. (a) In Virginia, where by statute passed previous to the adoption of the constitution, the court of chancery had jurisdiction to try a matter without the intervention of a jury, that right was not taken away by the adoption of the constitution. (b) The court in the case last cited, say: "The propriety of the court deciding without calling a jury, might have been more doubtful if, at the adoption of our constitution, the matter had been exclusively cognizable at law, and the court of chancery had taken jurisdiction under a statute subsequently enacted. A decision of the facts by the court might then be considered an innovation of the ancient right of trial by jury, and in conflict with that provision of the constitution which declares that the ancient mode

(a) Harris v. Wood, 6 Munroe's R. 642. See also, Creighton v. Johnson, 6 Litt. R. 241. Watts v. Griffin, 6 id. 247.

(b) Watts v. Griffin, 6 Litt. 247.

of trial by jury shall be held sacred, and the right thereof remain inviolate. But the statutes to which we have referred, were all enacted long before the adoption of the constitution, and every power which the court derived from those statutes before the adoption of the constitution, may no doubt now be exercised without violating any constitutional provision. The statute of this country, it is true, was enacted after the adoption of our first constitution; but that statute confers no power on the court which it did not possess under the statutes of Virginia; and according to those statutes we apprehend the court might decide the case without a jury. Those statutes contain no express provision as to the mode of deciding the causes, but they contain a grant of jurisdiction, and that implies a grant of all power necessary to the final decision of the matter in contest."

§ 387. In Kentucky it has been held, "That part of the Kentucky statute of 1792, prohibiting dealing with slaves, without their owner's consent, which provides that the owner may recover four times the value of the article transferred, by the judgment of a justice of the peace, if it be under five pounds, was unconstitutional, as it deprived the party of a trial by jury."(a) So, for the same reason, the third section of the statute of 1799, concerning the public arms of the state of Kentucky.(b) And so, also, of the statute of 1810, authorizing the county court to impose a fine, without trial by jury, for giving in a false and fraudulent list of taxable property (c) In the case last cited, the question arose under an order and judgment of the county court, imposing a fine and treble tax on a party for giving in to the commissioners of tax, a false and fraudulent list of his

(a) Enderman v. Ashby, Pr. Dec. 65.

(b) Stidger v. Rogers, Pr. Dec. 64.

(c) Carson v. Commonwealth, 1 A. K. Marsh. R. 290.

taxable property. Upon the return of the summons into the county court, the party fined and taxed appeared and moved the court for a jury to be empannelled for the purpose of trying the issue. The motion was overruled, and judgment rendered in favor of the commonwealth. This order and judgment came up for review, and the only question made was, whether the court decided correctly in refusing to cause the issue to be tried by a jury. The court in that case say: "Testing the case exclusively by the act of January, 1810,(a) we should be induced to accord with the decision of the county court; for, as by that act the court is directed upon the appearance of the defendant, and defence made, to proceed to inquire into and decide the contest, the instruction there given the court, strongly negatives the necessity of calling a jury to assist in its determination. But, as by the constitution of this country, the right of trial by jury is held sacred, and made inviolable, we should, in deciding upon questions involving such a right, look to that instrument as the paramount rule, and give such an operation to the acts of the legislature, as shall accord with its clear and obvious import. deciding upon the present contest, then, it becomes only necessary to inquire whether or not, the case now before us is of that description which, by the constitutional right, trial by jury is guarantied to the defendant. Still, in making the inquiry, it is material barely to look into the laws regulating the trial of such cases at the time and previous to the adopting the constitution. For, if before and at that time, those who should be accused of like offences, were by the existing laws, allowed to have a decision of their cause by a jury, any change in the law, by which they may be deprived of that privilege

In

(a) 4 Little's R. 161.

must, as it is an innovation upon the ancient right, be considered an infraction of the clear and obvious meaning of the constitution. Looking to those laws, then, we can have no hesitation in deciding that the defendant in the court below was entitled to a trial of the issue by jury. By an act of the Virginia legislature of 1786, a fine and treble tax is imposed upon such as may give in a false and fraudulent list of taxable property, and in pointing out the mode of ascertaining the truth of such a charge, the act expressly gives to the person accused the privilege of either having a jury called, or a decision by the court. That act, it is believed, was not repealed, but continued in full force until the adoption of the constitution, and after being adopted by that instrument, was re-enacted by the legislature of this country at their first session in 1792, (a) and continued in force until the act before alluded to in 1810. Under this state of the law, therefore, at the adoption of the constitution, although the act of 1810 seems to bear a different import, we are of opinion, that in accordance to the controlling influence of the constitution, the supreme and paramount law of the country, the court below ought, at the instance of Carson, to have tried the issue by a jury.”

388. It has also been held, that the ninth section of the act of 1800 of Kentucky, which provided, that "on the dissolution of an injunction, judgment shall be given by the court against the sureties, as well as the plaintiff in the injunction bond. And in all bonds hereafter given on appeals and writs of error, when the judgment of the superior court shall be affirmed in part or in whole, the judgment shall be given against the securities in said appeal or supersedeas bond, as well as against the principal, and execution shall issue accordingly," was uncon

(a) 1 Little's R. 63.

stitutional. (a) The court held, in the case last cited, that "Upwards of twenty years since, and immediately after the passage of this act, this court decided it to be unconstitutional, and refused to enforce it, and the act had remained in their code as a dead letter ever since; and among all the courts, superior and inferior, notwithstanding the imperative language of the act, not one, till the present case, had ever undertaken to render a judg ment or decree enforcing it. After such a total disregard of its provisions, and after such a long acquiescence by the judicial sense of the state, they were bound, whatever their private opinions might be, were it res nova, not to enforce it; especially as its operations would prove a surprise upon many litigants and more sureties, who had not believed themselves in such danger when they executed such bonds. It was not easy to foresee what would be the effect of such enforcement against all the sureties then bound in injunction, supersedeas and appeal bonds. The operation of one new rule was often more extensive than the abolition of many old ones.

§ 389. A statute authorizing a judgment to be entered on motion for breach of an agreement, thereafter to be made, to pay money for the building of a penitentiary, has been held not within this constitutional provision.(b) And the same rule has been adopted where a statute gave a right to sureties to recover, by summary process, money paid for their principal. The decision in this latter instance was placed on the ground, that a court of equity, prior to the adoption of the constitution, had jurisdiction in such case, and to proceed without the intervention of a jury.(c) So too, it has been held, that in

(a) Hughs v. Hughs, 4 Monroe's R. 43.

(b) Ewing v. Directors, &c., Hardin's R. 5. (c) Walls v. Griffin, 6 Litt. R. 247.