debt or covenant, where the amount has been liquidated by the act or deed of the parties, the court may proceed without the intervention of a jury to assess damages. This case also has been put upon the same ground as that last cited. (a)

§ 390. Statutes giving summary remedies against public officers and their sureties have, in Kentucky, been held not to be within this clause of the constitution.(b) In Indiana such a statute was sustained; the court, however, placed their decision on the ground, that there were no express words in the act depriving the parties of their constitutional right of trial by jury, and that the court were unwilling to believe the legislature ever intended to abridge this palladium of liberty so particularly noticed in the declaration of independence, and secured by the constitution of the state. It however held, that if such was its intention, that so much of the statute as destroyed the common law right of trial by jury in civil cases, where the value in controversy exceeds twenty dollars, was unconstitutional.(c)

§ 391. Where before the adoption of the former constitution of Pennsylvania in 1790, justices of the peace, by an act passed the 5th April, 1785, had jurisdiction in cases of debt or demand, not exceeding £10, but by a law passed 19th April, 1794, that jurisdiction was increased in cases of the same kind to an amount not exceeding £20. "This law directed, that if any person should bring suit in other manner than was provided by the act, and should not recover more than £20 he should not have judgment for any costs; at the same time it provided, that either plaintiff or defendant in a suit brought before a justice for a demand above £10 might,

(a) Harrison v. Chiles, 3 Litt. R. 200.

(b) Murray v. Askew, 6 J. J. Marsh. 27. Wells v. Caldwell, 1 A. K.

Marsh. 141.

(c) Dawson v. Shaver, 1 Blackf. R. 204.

before judgment, elect to have the cause tried in the common pleas, the defendant, if he was the party electing, giving security in the nature of special bail, or to enter a common appearance, accordingly as the cause originated by capias or summons; and it entitled either party, even after judgment, if the amount exceeded £5, to appeal to the common pleas, upon giving security to answer costs, to prosecute the appeal with effect, &c. The same jurisdiction, thus modified, was given to the alderman's court, which proceeded without the intervention of a jury." The constitutionality of this act came in question in Emerick v. Harris, (a) on the one hand, it was contended: "That the law of 19th April, 1794, was not contrary to the constitution. That the legislature had an express right by that instrment, to organize new judicial tribunals; and that so long as the trial by jury was preserved through an appeal, the preliminary modes of obtaining it might be varied at their will and pleasure. That to deny them this right, was to prohibit the minutest change in any of the formal process and rules by which jury trial was obtained and regulated. That by this law the trial was open to the parties at their own election, or by appeal; and it rested with them, whether to remain before the magistrate, or to proceed in the old way. That the only difficulty was about the costs; and that therefore the question of constitutionality came to this, whether the legislature had a right to abridge, or to abolish costs, in cases wherein they were recoverable before the constitution was adopted. That this was almost too plain for argument, and was a matter upon which a multitude of laws had been made since that time, without a suggestion of their impropriety. That it was always a question of policy for the government,

(a) 1 Binney's R. 416.

and not of right in the party; some parties paying none, others paying double or treble costs according to the nature of the case; a proportion sometimes existing between them and the damages recovered, sometimes not; the whole being an arbitrary system, of the change of which, or even its extinction, no one had a right to complain." On the other hand it was contended, "That the constitution, by directing that trial by jury should be as heretofore, and the right thereof remain inviolate, had interdicted the legislature from abolishing or abridging this right in any case, in which it had existed before the constitution. That a prohibition to do this directly, was a prohibition to do it indirectly, either by deferring the decision of a jury until one, two, or more previous stages of the cause had been passed, or by clogging the resort to that tribunal by penalties of any kind, either forfeiture of costs, security upon appeal, or delay. That the power to obstruct at all, implied a power to increase the obstructions, until the object became unattainable; and that the instant the enjoyment of the right was to be purchased by sacrifices unknown before the constitution, the right was violated, and ceased to exist as before. That the question was not whether the legislature had a right to take away costs altogether, but whether they could make the loss of them a penalty for demanding a right secured by the constitution. That all encroachments upon constitutional rights were in the first instance minute; that they increased in magnitude, as the boldness of the usurping power increased by the acquiescence of the citizen; and that therefore it was the duty of the judiciary to detect and resist the usurpation at the outset." Yeates, J., remarked: "When the convention declare in the fifth section of the bill of rights, that trials by jury shall be as heretofore, and the right thereof shall remain inviolate,' I do not conceive that

any restriction is thereby laid on the legislative authority, as to erecting or organizing new judicial tribunals in such manner as may be most conducive to the general weal, on a change of circumstances effected by a variety of causes. This appears plain to me from the fifth article of the constitution, which vests the judicial power of the state in a supreme court, courts of oyer and terminer, and sessions of general jail delivery, common pleas, orphan's court, register's court, sessions of the peace, justices of the peace, and in such other courts as the legislature may from time to time establish.' But it is equally obvious to my understanding, that the legislature cannot constitutionally impose any provisions substantially restrictive of the right of trial by jury. They may give existence to new forums; they may modify the powers and jurisdiction of former courts, in such instances as are not interdicted by the constitution from which their legitimate powers are derived. Still, the sacred inherent right of every citizen, a trial by jury, must be preserved. It shall remain inviolate, as heretofore.' When the present state constitution was formed, the £10 act which passed on the 5th April, 1785, was in full force, and must be presumed to have been in the contemplation of the convention, who by the words 'as heretofore,' virtually confirmed it. The law now in question was enacted at a subsequent period on the 19th April, 1794; and is therefore subject to legal discussion. It extended the jurisdiction of justices of the peace to £20. With the wisdom, sound policy, or expedience of that law, this court have nothing to do. These are matters purely of legislative deliberation and cognizance. I cannot avoid lamenting that the original jurisdiction of suits embraced by the act is exclusively assigned to a single justice, and only an appellate jurisdiction reserved to a jury. But it must be admitted that the right of trial by jury is not taken away, though the

party may be subjected to some inconvenience in making his election. The law therefore appears to me not to be that plain and clear case, in which I should feel myself authorized to pronounce on its invalidity, as a deviation from the constitution."

§ 392. Mr. Justice Brackenridge, in the same case, said: "It is of less moment that under this act the jurisdiction of the justices is extended to a demand of £20; yet it may be said to be contrary to the spirit of the constitution.' For though an appeal is saved in debt or demand above £5, yet there is in the first instance a privation of the trial by jury. It is true there is weight in the consideration expressed in the preamble of the act, the lessening in the value of money.' But it cannot be in the spirit of the constitution, but contrary to it, to extend the jurisdiction of the justices of the peace, ad libitum, and to any extent, even allowing the appeal. Yet it is one thing to be contrary to the spirit of the constitution, and another thing to be in direct violation of it. 'Trial by jury shall be as heretofore.' But trial by jury heretofore, had not been known in the forum of the justice. And it could not be with a view to secure the jury trial in this forum, that the provision was introduced. It must have been to secure the trial in the courts where it had existed; or to secure it in those courts which 'the legislature may from time to time establish.' But in the distribution of judicial power to the justices of the peace where the trial by jury does not exist, what is given more to the cognizance of the justice, is making less the jurisdiction of the courts where the jury trial does exist; and is indirectly taking away the trial by jury from the subject of the jurisdiction given to the justice. Yet this is but an indirect invasion; and the difficulty is to say where it may begin to be an invasion, unless it is assumed as a principle that it cannot be extended beyond what it was at the