On the other hand, the authority of the leg- | himself of the right given him, of having an islature, consistently with constitutional pro- issue made up, and the trial by jury, which visions securing the right of trial by jury is tendered to him by the act, it is presumable to provide, in civil proceedings for the re- that he cannot dispute the justice of the covery of money, that the trial by jury claim. That this view of the subject is givshould not be had in the tribunal of first in- ing full effect to the Seventh Amendment of stance, but in an appellate court only, is sup- the Constitution is not only deducible from ported by unanimous judgments of this the general intent, but from the express wordcourt in two earlier cases, the one arising ing of the article referred to. Had the terms in the District of Columbia, and the other in been that 'the trial by jury shall be prethe state of Pennsylvania. served,' it might have been contended that [21] they were imperative, and could not be dispensed with. But the words are, that the right of trial by jury shall be preserved, which places it on the foot of a lex pro se introducta, and the benefit of it may therefore be relinquished. As to the words of Magna Charta, incorporated into the Constitution of Maryland, after volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this: That they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by. the established principles of private rights and distributive justice. With this explanation, there is nothing left to this individual to complain of. What he has lost, he has voluntarily relinquished; and the trial by jury is open to him, either to arrest the progress of the law in the first instance, or to obtain redress for oppression, if the power of the bank has been abused. The same answer is equally applicable to the argument founded on the third article of the Maryland Constitution." 4 Wheat. 243, 244 [4: 561].

The declaration of rights, prefixed to the Constitution of Maryland of 1776, declared, in article 3, that "the inhabitants of Maryland are entitled to the common law of England, and the trial by jury according to the course of that law;" and, in article 21, repeated the words of Magna Charta, "No person ought to be taken or imprisoned," etc., "or deprived of his life, liberty, or property, but by the judgment of his peers or the law of the land." 1 Charters and Constitutions, 817, 818. The statute of the state of Maryland of 1783, chap. 30, incorporating a bank in the District of Columbia, provided that on any bill or note made or indorsed to the bank, and expressly made negotiable at the bank, and not paid when due, or within ten days after demand, the bank, upon filing an affidavit of its president to the sum due, [20] might obtain from the clerk of a court an execution against the property of the debtor; "and if the defendant shall dispute the whole or any part of the said debt, on the return of the execution the court before whom it is returned shall and may order an issue to be joined, and trial to be had in the same court at which the return is made, and shall make such other proceedings that justice may be done in the speediest manner." 2 Kilty's Laws. The general court of Maryland, in 1799, held that this statute did not infringe the constitutional right of trial by jury. Bank of Columbia v. Ross, 4 Harr. & Mcй. 456, 464, 465. The statute was continued in force in the District of Columbia by the acts of Congress of February 27, 1801, chap. 15, § 5, and March 3, 1801, chap. 24, § 5. 2 Stat. at L. 106, 115; Bank of Columbia v. Okely (1819) 4 Wheat. 235, 246 [4: 559562].

In Bank of Columbia v. Okely an execution so issued was sought to be quashed upon the ground that the statute of Maryland violated the Seventh Amendment of the Constitution of the United States, as well as the Constitution of the state of Maryland. But this court held the statute to be consistent with both Constitutions, and, speaking by Mr. Justice Johnson, said: "This court would ponder long before it would sustain this action, if we could be persuaded that the act in question produced a total prostration of the trial by jury, or even involved the defendant in circumstances which rendered that right unavailing for his protection. But a power is reserved to the judge, to make such rules and orders 'as that justice may be done;' and as the possession of judicial power imposes an obligation to exercise it, we flatter ourselves that, in practice, the evils so eloquently dilated on by the counsel do not exist. And if the defendant does not avail

The Constitution of Pennsylvania of 1776 provided, in article 11 of the declaration of rights, that "in controversies respecting property, and in suits between man and man, the parties have a right to trial by jury, which ought to be held sacred," and, in section 25 of the Frame of Government, that "trials shall be by jury as heretofore;" and the Constitution of 1790, in section 6 of the bill of rights, declared that "trial by jury shall be as heretofore, and the right thereof remain inviolate." 2 Charters and Constitutions, 1542, 1546, 1554. The statutes of Pennsylvania, from 1782, required all ac counts between the state and its officers to be settled by the comptroller general, and approved by the executive council; and, if a balance was found due to the state, authorized the comptroller general to direct the clerk of the county where the officer resided to issue summary process to collect the amount due. And a statute of February 18, 1785, after reciting "whereas it will be agreeable to the Constitution of this state, which has declared that 'trial by jury shall be as heretofore,' that persons conceiving themselves aggrieved by the proceedings of the [22] said comptroller general should be allowed to have trial of the facts by a jury, and questions of law arising thereupon determined in a court of record," enacted that any such person might appeal from the settlement or award of the comptroller general to the supreme court of the state, "provided the said party enter sufficient security" before a judge "to prosecute such appeal with effect, and to pay all costs and charges which the Su

preme Court shall award, and also pay any sum of money which shall appear by the judgment of the said court to be due from him" to the state; and might have the whole matter tried by a jury upon the appeal. This statute also provided that the settlement of any account by the comptroller general, and confirmation thereof by the executive council, whereby any sum of money should be found due from any person to the state, should be a lien on all his real estate throughout the state. 2 Dall. Laws Pa. 44, 247, 248, 251.

justice of the peace, and requires of the appellant a bond with surety to prosecute the appeal and to pay the judgment of the ap pellate court. The full extent and weight of those precedents cannot be justly appreciated without referring to the texts of the statutes which they upheld, and which have not always been fully set forth in the reports.

The leading case is Emerick v. Harris (1808) Binn. 416, which arose under the statutes of Pennsylvania. The provisions of the Constitution of the state are quoted above. The provincial statute of March 1, 1745, gave a justice of the peace jurisdiction of actions to recover the sum of forty shilpounds; and authorized any person aggrieved by his judgment to appeal to the court of common pleas, "first entering into recognizance, with at least one sufficient security, at least in double value *of the debt [24] or damages sued for, and sufficient to answer all costs, to prosecute the said appeal with effect, and to abide the order of the said court, or in default thereof to be sent by mittimus to the sheriff of the county, by him to be kept until he shall give such security, or be otherwise legally discharged." 1 Dall. Laws Pa. 304, 307. The statute of April 5, 1785, enlarged the summary jurisdiction of a justice of the peace to sums not exceeding ten pounds; and, for the avowed purpose of conforming to the Constitution of the state, gave an appeal to the court of common pleas, upon the like terms as by the statute of 1745. And the statute of March 11, 1789, conferred upon the aldermen of the city of Philadel phia the jurisdiction of justices of the peace.

In Livingston v. Moore (1833) 7 Pet. 469, [8: 751], which came to this court from the circuit court of the United States for the eastern district of Pennsylvania, the validity of a lien so acquired by the state was at-lings and upwards and not exceeding five tacked on the ground, among others, that the statutes creating it were contrary to section 6 of the Pennsylvania bill of rights of 1790. But this court upheld the validity of the lien, and in an opinion delivered by Mr. Justice Johnson, after elaborately discussing the other questions in the case, briefly disposed of this one as follows: "As to the sixth section of the Pennsylvania bill of rights, we can see nothing in these laws on which to fasten the imputation of a violation of the right of trial by jury; since, in creating the lien attached to the settled accounts, the right of an appeal to a jury is secured to the debtor." 7 Pet. 552 [8: 781].

While, as has been seen, the Seventh Amendment to the Constitution of the United States requires that "the right of trial by jury shall be preserved" in the courts of the United States in every action at law in which the value in controversy exceeds twenty dollars, and forbids any fact once tried by a jury to be otherwise re-examined, in any court of Dall. Laws Pa. 304, 305, 660. The statute the United States, than according to the rules of April 19, 1794, extended the jurisdiction [23] of the common law," meaning thereby the of justices of the peace, as well as of the alcommon law of England, and not the law of dermen of Philadelphia, to demands not exany one or more of the states of the Union, ceeding twenty pounds, with a right of apyet it is to be remembered that, as observed peal, after judgment, if the amount exceeded by Justice Johnson, speaking for this court, five pounds, to the court of common pleas, in Bank of Columbia v. Okely, above cited, "in the same manner, and subject to all other it is not "trial by jury," but "the right of restrictions and provisions," as in the stattrial by jury," which the Amendment de- ute of 1745. 3 Dall. Laws Pa. 536-538. In clares "shall be preserved." It does not pre- support of a writ of certiorari to quash a scribe at what stage of an action a trial by judgment for cleven pounds and six shiljury must, if demanded, be had; or what lings, rendered in the alderman's court of conditions may be imposed upon the demand Philadelphia upon default of the defendant, of such a trial, consistently with preserving it was argued "that the Constitution, by dithe right to it. In passing upon these ques-recting that trial by jury should be as here-. tions, the judicial decisions and the settled practice in the several states are entitled to great weight, inasmuch as the Constitutions of all of them had secured the right of trial by jury in civil actions, by the words "shall be preserved," or "shall be as heretofore," or "shall remain inviolate," or "shall be held sacred," or by some equivalent expression.

A long line of judicial decisions in the several states, beginning early in this century, maintains the position that the constitutional right of trial by jury in civil actions is not infringed by a statute which sets the pecuniary limit of the jurisdiction of justices of the peace in actions at law higher than it was when the particular Constitution was adopted, allows a trial by jury for the first time upon appeal from the judgment of the U. S.. BOOK 43.

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tofore, 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 the power to increase the obstructions until the object became unattainable; and that the instant the enjoy ment of the right was to be purchased by sacrifices unknown before the Constitution, the right was violated, and ceased to exist as

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istrate, he or she shall be at liberty to appeal to the next county court, before the justices thereof, who are hereby, upon the petition of the appellant, in a summary way, empowered and directed to hear the allegations and proofs of both parties, and determine upon the same according to the law of the land, and the equity and right of the matter;" and "either of the said parties may demand a trial by jury, or leave the cause to be determined by the court, at their elec tion." And by 85, the appellant was required to give bond with sufficient sureties, in double the sum to be recovered, to prosecute his appeal, and to pay the appellee, “in case the said judgment shall be affirmed, as well as the debt, damage, and cost adjudged by the justice from whose judgment such appeal shall be made, as also all cost and damage that shall be awarded by the court before whom such appeal shall be heard, tried, and determined.' Latrobe's Justices' Practice, 1st ed. 1826, pp. 56, 112, 360, 362; 2 Kilty's Laws.

that instrument. I am clear that it is not; and that a construction of this nature is equally unwarranted by the words, and by the intention, of the Constitution. An instrument remains inviolate if it is not infringed; and by a violation of the trial by jury, I understand taking it away, prohibit ing it, or subjecting it to unreasonable and burdensome regulations, which, if they do not amount to a literal prohibition, are, at least, virtually of that character. It never could be the intention of the Constitution to tie up the hands of the legislature, so that no change of jurisdiction could be made, and no regulation even of the right of trial by jury could be had. It is sufficient, and with[28] in the reasonable *intendment of that instrument, if the trial by jury be not impaired, although it may be subjected to new modes, and even rendered more expensive, if the public interest demands such alteration. A law containing arbitrary and unreasonable provisions, made with the intention of annihilating or impairing the trial by jury, would be subject to the same considerations, as if the By the statute of Maryland of 1809, chap. object had been openly and directly pursued. 76, §§ 1, 6 (3 Kilty's Laws), the exclusive But, on the other hand, every reasonable reg- original jurisdiction of justices of the peace ulation, made by those who value this palla- was extended to all cases where the real debt dium of our rights, and directed to the at- or damages demanded did not exceed fifty tainment of the public good, must not be dollars. And by the statute of Maryland of deemed inhibited because it increases the 1852, chap. 239, their original jurisdiction burden or expense of the litigating parties." was extended to all cases of contract, tort, or "In conclusion, I am satisfied that the liber-replevin, where the sum or damage or thing ty of appeal preserves the right of trial by jury inviolate, within the words and fair intendment of the Constitution; and that no such unreasonable hardship is put on the appellant, by the bond required for the prosecution of the appeal, as to justify the assertion that the right of trial by jury is in any manner impaired." Beers v. Beers (1823) 4 Conn. 535, 538, 540 [10 Am. Dec. 186]. See also Colt v. Eves (1837) 12 Conn. 243, 253; Curtis v. Gill (1867) 34 Conn. 49.

demanded did not exceed one hundred dollars, with a right of appeal to the county court; and was made concurrent with that of the county court where it exceeded fifty dollars.

In Steuart v. Baltimore (1855) 7 Md. 500, the court of appeals of Maryland, speaking by Judge Eccleston, said: "In the third section of the old Bill of Rights, it was declared 'that the inhabitants of Maryland are entitled to the common law of England, and the Before the adoption of the Constitution trial by jury, according to the course of that of the state of Maryiand, each of the stat-law.' Notwithstanding this, the legislature utes of the province "for the speedy recovery passed laws at different times, extending the of small debts out of court, before a sin-jurisdiction of justices of the peace in matgle justice of the peace," would appear to ters of contract, and giving jurisdiction *in [30] have restricted his civil jurisdiction to matters of tort where they had none previclaims for thirty-three shillings and four ously. These laws, of course, made no provipence, as in the statute of 1715, chap. 12, or for fifty shillings, as in the statute of 1763, chap. 21. Bacon's Laws.

By the statute of the state of Maryland of 1791, chap. 68, "for the speedy recovery of small debts out of court," § 1, any one justice of the peace, of the county wherein the debtor resided, was vested with jurisdiction to try, hear, and determine "all cases where the real debt and damages doth not exceed ten pounds current money" (or twenty-six and two-thirds dollars), "and, upon full hearing of the allegations and evidences of both parties, to give judgment, according to the laws of the land, and the equity and right of the matter." By § 6 his jurisdiction was made exclusive to that extent. By § 4, "in all cases where the debt or demand doth ex[29] ceed twenty *shillings common money" (or

'sion for trials by jury except on appeal to the county courts, and yet they were constantly acquiesced in, and not considered as being repugnant to the Bill of Rights." The court then referred to Morford v. Barnes, Beers v. Beers, and McDonald v. Schell, above cited, and added: "These cases fully establish the principle that where a law secures a trial by jury upon an appeal, it is no violation of a constitutional provision for guarding that right, although such law may provide for a primary trial without the intervention of a jury. This is upon the ground that the party, if he thinks proper, can have his case decided by a jury before it is finally settled." 7 Md. 511, 512.

To the like general effect are the following: Kentucky Stat. January 30, 1812, §§ 4-6, 2 Morehead & Brown's Digest, pp. 893, two and two-thirds dollars), "and either 894; Pollard v. Holeman (1816) 4 Bibb, plaintiff or defendant shall think him or her-416; Head v. Hughes (1818) 1 A. K. Marsh. self aggrieved by the judgment of any mag- 372 [10 Am. Dec. 742]; Feemster v. Ander