time of framing the constitution; and this, taking into view the history and progress of the jurisdiction, would seem to be assuming more than is justifiable. If then we are not arrested at the precise point where the matter stood at the framing of the constitution, with respect to an enlargement of the jurisdiction of the justice of the peace, how far shall we go? Where shall we stop? Is it competent to the judiciary to fix this point? Is it not in the nature of it, a matter of discretion, a question of expediency? And must it not be left to the legislature? What might be done in an extreme case which might be imagined, an accumulation of jurisdiction in a justice of the peace far beyond any thing like what had before existed, it is not necessary to say; for the present would not appear to me to be such a case, nor can it warrant the judiciary to exercise an act of such paramount and delicate authority as to interfere. My opinion therefore must be for the plaintiff in the suit before the justice. It will be observed that I have confined myself to the act giving jurisdiction to the justice of the peace in demands not exceeding £20, under which the jurisdiction in the case before us arises; and which act, being of the 19th April, 1794, is an extension of the act of March, 1745, and subject to, and under every regulation, restriction and exception in that act. The exceptions in that act with respect to the subject of controversy, debt for rent, debt upon bonds for performance of covenant, actions of covenant, replevin, &c., have been stated, and the jurisdiction in the act in question being subject to the like exceptions, it has not come in my way, in considering the case before us, to take notice of what might be the question in a case where the subject of jurisdiction was enlarged as to the cause of action, as well as to the quantum of the demand; or as to the cause of action itself. I take it to be of more moment that the jurisdiction be confined as to the subject of controversy, than as

to the quantum of demand, or at least as much; for the principle of law, which may come in view and be disposed of by the justice, may be of as much consequence as the value of the property. I should feel myself under more difficulty to reconcile the enlarging the jurisdiction as to cause of action, than as to quantum of demand. But there is nothing in the act before us which goes beyond debt, or contract, or actions not excepted in the act of March, 1745."

§ 393. In another case in the same state, it was held, that where the defendant had a right, in a case tried before a justice, to appeal to the court of common pleas, where he might have a trial by jury, although required to make oath "that he verily believed injustice had been done him, and that the appeal was not made for the purpose of delay," was not one in conflict with this clause in the constitution. That this provision was no more than a wholesome regulation. The object of courts was to administer justice, and no man had a right to complain, because he was refused an appeal intended for the purpose of delay; or in a case in which he did. not think that he had suffered injustice, that such laws as this promoted justice, and left the substance of the trial by jury unimpaired; and that was all that was required in the expression in the constitution, that "trial by jury shall be as heretofore."

§ 394. In Connecticut, where the provisions of a city charter provided that the jury should be taken from the freemen of the city, instead of the body of the county, it was held that the act was not repugnant to the constitution of that state, which declares that the right of trial by jury shall remain inviolate.(a) It was objected that the jury were not taken from the body of the county, but from a particular section, and thus the right of trial by jury was

(a) Colt v. Eves, 12 Conn. R. 243.

not preserved inviolate. But the court held, that to preserve the right of trial by jury inviolate could not mean, that we must pursue the exact course taken in England. If it did, it would be difficult to say what time should be selected as the criterion, for in England the qualification of jurors had been constantly changing. That beside this, the common law required merely that the jury should come from the vicinage. That the direct principles of the common law had in fact been adopted in the city charter. But even if it were an innovation upon the common law, it would not follow that the trial by jury was not preserved inviolate. It never could have been intended to tie up the hands of the legislature, so that no regulations of the trial by jury could be made. The same court in a previous case held, that within the reasonable intendment of this clause in the constitution, if the trial by jury be not impaired, although it might be subject to new modes, and even rendered more expensive, if the public interest demanded such an alteration, it would not be a violation of this clause in the constitution.(a)

§ 395. In New York, it has been determined that a statute creating a court of special sessions for the trial of petit larceny, without a jury, was not in conflict with a former constitution of that state, which declared "The trial by jury in all cases in which it has been heretofore used, shall remain inviolate forever." In one case where the constitutionality of the act came in question,(b) the decision was placed upon the ground, that the constitution of 1821 made that case a special exception, so that no question of its constitutionality could arise under it; and that the constitution of 1777 had, in express terms, retained such parts of the common law of England, and

(a) Beers v. Beers, 4 Conn. R. 535-539.
(b) The People v. Murphy, 2 Cowen's R. 815.

of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York as did together form the law of the colony on 19th of April, 1775. That as early as 1774, and previous to the adoption of the constitution of 1777, an act authorizing a trial of such an offence by three justices, had been passed, and hence the statute did not conflict with the constitution. In the case of Jackson, ex dem. Wood v. Wood, (a) Chancellor Walworth in 1824, then circuit judge, who passed upon this question, said: "The former constitution of this state was in force at the time of this conviction, and the only part which had any bearing upon the question, was the 41st article. That part of the constitution provided, that trial by jury, in all cases in which it had before been used in the colony of New York, should remain inviolate forever, and that the legislature should, at no time thereafter, institute any new courts but such as should proceed according to the course of the common law. If the act of 1801, authorizing a trial by special sessions, without indictment or jury, in cases of petit larceny and other small offences, had been the first law instituting such courts and authorizing such trials, it would have been a palpable violation of this article of the constitution. But this act was only a revision of a former law, which was in force at the adoption of the constitution, in 1777, and as it respected these courts and the offences of which they had cognizance, contained no new provisions. The first act instituting such courts, and containing substantially the same provisions, was passed by the colonial legislature in 1744. It was amended in 1768, and was re-enacted in the revisions of the laws in 1788, 1801 and 1813; and it is recognized and provided for by the 7th article of the new constitution of this state. No right of trial by jury

(a) 2 Cowen's R. 819.

ever existed in those courts until it was authorized by the act of the last session. The legislature, therefore, did not establish any new court, and the right of trial by jury remained as it had been used in the colony of New York, previous to the adoption of the constitution."

$395. The constitution of Massachusetts provides, "In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherwise used and practised, the parties have a right to trial by jury." It has been held, that this provision was not violated by a law which disallowed an appeal from a justice of the peace, on a complaint filed to collect a fine under the militia law. (a) In the case cited, however, it was not necessary for the court to pass upon this question. Mr. Justice Thatcher, in the opinion delivered by him, declared that on this constitutional question he did not think it necessary to give an opinion. The constitution had not secured the right of appeal in any case: that was left wholly to the legislature; nor had the constitution undertaken to detail, or even to specify the mode in which parties were to have the trial by jury: that was left to the legislature. Sewell, J., held, that whatever might be the construction or effect of this article of the constitution in ordinary cases, it had no application to the case then under consideration. That the appeal was claimed against a judgment, or decision, by the justice or justices upon the trial of an issue of law, exclusively cognizable by the justice or justices, without the intervention of a jury; and at the time of the appeal claimed, no issue had been taken or tendered by the defendant, suitable for the cognizance of a jury. At the utmost, this clause could only preserve the right, to be exercised at the will

(a) Mountfort v. Hall, 1 Mass. R. 443.