cases of this class, where the bona fide occupant has put improvements on his land, and a superior title is established

N. S. 296, it was held that a statute permitting persons charged with assault and battery to be tried in the Probate Court by a jury of six was invalid; but the decision was chiefly placed upon the very language of the Constitution which says that "in any trial in any court the accused shall be allowed a trial by an impartial jury.” But the court expressly recognized the general principle above stated, and carefully guarded their judgment from even seeming to attack it, by saying (p. 308): “We do not intend to imply a doubt of the constitutionality of the act allowing juries, before justices of the peace, composed of six men. Whenever facts are to be found in any proceeding in which a jury was not required by the common law, a jury of any number may be authorized."

The principle of interpretation thus stated has been accepted as general and fundamental. The practical difficulty has arisen in its application. As the ultimate test and limit of the constitutional guaranty is to be found in a historical fact, some discrepancy of judicial decision has necessarily arisen from a diversity in the early or original practice in different States, in reference to jury trials in particular instances. The further discussion of the subject consists in ascertaining how the principle has been applied in various proceedings civil and criminal, and this will give the particular rules and doctrines, and will define the practice, extent and limitations of the guaranty as it has been definitely interpreted. The various proceedings, civil and criminal, will be separately arranged and stated.

Certain classes of civil judicial proceedings were, by the common law of England and of the several States, always carried on without the intervention of a jury. Certain other proceedings analagous to, or modifications of, these last have from time to time been created by statute. Again, certain special proceedings, civil in their nature, utterly unknown at the common law, have been invented by the State Legislatures. Again, at the common law certain minor offences were triable in inferior courts without a jury; and the State Legislatures have created new offences analagous to or modifications of these. Finally, civil causes involving a limited amount, have been tried in inferior courts of the States--generally before justices of the peacewithout the full common-law jury. This broad generalization embraces most of the cases which have given rise to questions as to the extent and limitations of the constitutional guaranty. We will examine them separately and in detail.

Equity Suits.-As no jury was requisite in equity, so the right to a jury trial does not exist in equity suits where the remedy was in equity prior to the adoption of the Constitution, even though the proceeding (e. g., a foreclosure suit) may have some of the features of an action at law and may end in a personal judgment, and even though the equity and the common-law jurisdictions and procedures may have been amalgamated. Stilwell v. Kellogg, 14 Wisc. 461; Conn. &c. Ins. Co. v. Cross, 18 Wisc. 109.

The same is true of statutory proceedings in relation to matters which, prior to the Constitution, were within the jurisdiction of equity: among these are statutory proceedings for the winding up of insolvent corporations, Sands v. Kimbark, 27 N. Y. 147; Matter of Empire City Bank, 18 N. Y. 199: statutory proceedings for the enforcing liens for supplies, &c., on ships, since the lien might have been enforced in equity. Sheppard v. Steele, 43 N. Y. 52; s. c. 3 Lans. 417. The rule seems to be, that if, in addition to the original equity jurisdiction, the Legislature gives the same or a sim

against him, if he is willing to pay for the value of the land. without the improvements, the successful claimant cannot ob

ilar remedy through means of a statutory proceeding, the latter proceeding is still essentially an equitable one, and a provision for a jury trial is not essential.

But the jurisdiction of equity cannot, under color of statutory amendments or proceedings, be extended by the Legislature so as to embrace matters which, at the adoption of the Constitution, were common-law rights, and within the exclusive jurisdiction of common-law courts, so as to cut off the right of trial by jury. North Penn. &c. Co. v. Snowden, 42 Penn. St. 488; Tabor v. Cook, 15 Mich. 322.

In some States the language of the provision is, "the right of trial by jury shall remain inviolate, and shall extend to all cases at law," &c., as in Arkansas, Minnesota, and Wisconsin. Under this clause it has been held, in Wisconsin, that the appointment of a guardian of an insane person is not within the guaranty, and the proceeding therefor does not require a jury trial. Gaston v. Babcock, 6 Wisc. 503.

But, on the other hand, in New Hampshire, where there is an express exception of "cases wherein it has been heretofore otherwise used and practiced," it is held that a party to a suit in equity has a constitutional right to a jury, if demanded at a proper time. Hoit v. Burleigh, 18 N. H. 389. But this is purely exceptional, and must depend upon an early practice in that State peculiar to itself.

Statutory Proceedings.—It has been held that all statutory proceedings and rights which did not exist at the common law are without the guaranty. The doctrine lying at the bottom of these decisions is, that the guaranty applies only to rights and proceedings which existed at the common law, and does not apply to any proceedings created by statute, even though the statute existed and was in force at the adoption of the Constitution, and provided for a jury trial, e. g., statutory proceedings for the restoration of records destroyed by fire. Kimball v. Connor, 3 Kans. 414.

On the contrary, in New York, where the right of jury trial extends "to all cases in which it has been heretofore used," these words have been held to be generic and to cover statutory additions made since the adoption of the Constitution to the classes of cases in which jury trial was in use at the time of such adoption, e. g., an action for removal of buildings erected contrary to building acts. Fire Department v. Harrison, 2 Hilt. 455. This doctrine was well stated in Wynehamer v. People, 13 N. Y. 426: "The expression in all cases in which it has heretofore been used is generic. It does not limit the right to the mere instances in which it had been used, but extends it to such new and like cases as might afterwards arise. For instance, felonies were triable only by jury; I do not doubt that all new felonies must be tried in that way, and that by force of this section." Per A. S. Johnson, J. Though this refers to the language of the N. Y. Constitution, yet it expresses a general principle, and is applicable to the provisions found in most, if not all, the State Constitutions. The rule thus laid down in New York is undoubtedly part of the constitutional law of the land. The protection of jury trial is not limited to proceedings which existed at the common law, nor to the mere instances in which it existed when a particular Constitution was adopted; it extends to and embraces all the instances and species of the classes of cases in which it was used at that time. If this be not the correct interpretation-if the doctrine of the Kansas case be accepted-it would be easy for a Legislature to practically abolish the jury trial, and annul the right to it.

In Vermont it is held that the guaranty extends to all cases fit to be tried by a jury according to the course of the common law, although the cause of action arise

tain possession until he pays the value of the improvements made by the occupant. But where a statute of this kind pro

on a statute passed since the adoption of the Constitution; and this is simply stating the same doctrine in another form. Plimpton v. Somerset, 33 Vt. 283.

Special Proceedings, Private.-Certain special proceedings, although brought to enforce rights purely private, have been held in different States not to be embraced within the guaranty; but in many other States the practice is very different. Among these are, Mandamus: State ex rel. v. Sharswood, 15 Minn. 221; Divorce: Coffin v. Coffin, 55 Me. 361; Contested Elections: Ewing v. Filley, 43 Penn. St. 384; Contempt of Court, though out of the presence of the court, e.g., tampering with a juror: State v. Doty, 3 Vroom (N. J.) 403. But in Iowa a statute was held invalid which provided for the examination of an execution debtor and for an order that he deliver up to the creditor any non-exempt property discovered by the examination, and empowered the court to punish a refusal on his. part to answer or to deliver as a "contempt." Ex parte Grace, 12 Iowa, 208. But this decision is probably exceptional; for a similar statute exists in many States (in most of those which have adopted the N. Y. Code of Procedure), and seems to have raised no objection.

Special Proceedings, Public.—Certain summary proceedings or inquisitions by the State have generally been held not to be within the guaranty, e. g., tax proceedings. Crandall v. James, 6 R. I. 144; Harper v. Commrs. 23 Geo. 566.

In several of the States proceedings under the right of eminent domain, even though the right be delegated to corporations or individuals (e. g., proceedings to take land for railroads), have also been held not to be covered by the guaranty, and therefore statutes are held valid which provide for assessment of compensation by appraisers or commissioners, rather than by a jury. This seems now to be the generally received doctrine, although not universally accepted. In New York the present Constitution (of 1846) expressly provides for commissioners, but the courts had so held prior to 1846. Hegeman v. Blake, 19 Cal. 579; Donberger v. Reed, 11 Ind. 420; Beekman v. Saratoga &c. R. R. 3 Paige, 45; Livingston v. Mayor, 8 Wend. 85; Backus v. Lebanon, 11 N. H. 19; Buffalo Bayou &c. R. R. v. Ferris, 26 Tex. 588. In the last case the court said (p. 599): "The Constitution does not apply to the case of taking private property for public purposes, but to suits in courts of justice, to some known and fixed mode of judicial proceeding for the trial of issues of fact in civil and criminal cases in courts of justice." This language seems to be too broad and sweeping, as it restricts the right of jury trial to "suits" and "cases," and denies it in any and all "proceedings" which do not fall within either of those denominations. A jury is necessary. Lake Erie &c. R. R. v. Heath, 9 Ind. 558.

Enlarging Jurisdiction of Inferior Courts.-Where justices' courts, acting without a jury, or with a jury of less than twelve, were in existence at the time of the adoption of the Constitution, with a certain defined jurisdiction, it has been repeatedly held in many States that additional jurisdiction as to amount may be subsequently conferred, and especially when their jurisdiction has been from time to time enlarged. Dawson v. Horan, 51 Barb. 459; People v. Lane, 55 Barb. 168; Knight v. Campbell, 62 Barb. 16; Curtiss v. Gill, 34 Conn. 49; Guile v. Brown, 38 Conn. 237; Hapgood v. Doherty, 8 Gray, 373; Norton v. McLeary, 8 Ohio, N. S. 205. But the substantial right must not be impaired. Ibid. As statutes enlarging jurisdiction of justices' courts frequently give a right of appeal, for additional cases under this head see "Appeal," post.

vided that the value of the improvements, and of the land without the improvements, should be assessed by three persons

Appeal.-Statutes giving additional civil jurisdiction to inferior courts, or making offences triable before such courts without a jury, or without a common-law jury, frequently provide for an appeal to a higher court with a common-law jury. Such statutes have generally been held valid on the ground that they practically preserve the right of a jury trial. State v. Beneke, 9 Iowa, 203; State v. Brennan's Liquors, 25 Conn. 278; Gaston v. Babcock, 6 Wisc. 503; Jones v. Robbins, 8 Gray, 329; Norristown &c. Co. v. Burkett, 26 Ind. 53; Haines v. Levin, 51 Penn. St. 412; Bryan v. State, 4 Iowa, 349; Beers v. Beers, 4 Conn. 535. And the same has been generally held even though the statute require a bond or bail with surety on the appeal, in order to make it effectual. Hapgood v. Doherty, 8 Gray, 373; Morford v. Barnes, 8 Yerg. 444; Stewart v. Mayor, 7 Md. 500. But on the contrary it has been held in Minnesota, that such a statute requiring surety was invalid, the court expressly stating, however, that if the right of appeal had been made absolute and unrestricted, the constitutional guaranty would not have been violated. State v. Everett, 14 Minn. 439. See also People v. Carrol, 3 Park. Cr. 22.

Where there is a right of appeal to a jury, and also a statutory mode of revision without a jury, one who takes advantage of the latter cannot complain. Des Moines v. Layman, 21 Iowa, 153.

Minor Offences and Quasi Criminal Proceedings.-Minor offences have been very generally he'd not to be embraced within the constitutional guaranty. The reason is two-fold: (1) beause at the common law many such offences were triable in inferior courts without a jury, and this practice prevailed in most States at the adoption of their Constitutions; and (2) because many such offences have been created by statute. There is, however, a considerable discrepancy among the decisions of the different States on this subject, growing partly out of diversity in the early practice of trying such offences, and partly out of the peculiar language of the Constitution. The following are some illustrations of this doctrine: A statute authorizing persons charged with petit larceny to be tried in the special sessions without a jury, held valid because similar statutes existed at the adoption of the Constitution. Murphy v. People, 2 Cow. 815; People v. Goodwin, 5 Wend. 251. The same as to disorderly persons. Duffy v. People, 6 Hill, 75; Plato v. People, 3 Parker Cr. 586. The same as to enforcing a municipal ordinance by a short imprisonment or a small fine. McGear v. Woodruff, 4 Vroom (N. J.) 213, the court saying the constitutional guaranty was not intended to introduce a trial by jury in cases where it did not exist before." In Louisiana, where the Constitution contained a general guaranty of trial by jury, and also in another clause provided for the trial of certain minor offences before municipal officers, it was held that such offences were excepted from the general guaranty. State v. Gutierrez, 15 La. Ann. 190; State v. Noble, 20 La. Ann. 325. And where there is no express provision of the Constitution as to minor offences, the guaranty must be construed with reference to statutes in force at the time of the adoption of the Constitution, and the trial of minor offences before inferior tribunals according to the analogy of such statutes, is not prohibited by the constitutional provision preserving the jury trial. Byers v. Commonwealth, 42 Penn. St. 89. In Ohio no jury is necessary in statutory proceedings for the commitment of a minor to a reformatory institution. Prescott v. State, 19 Ohio, N. S. 184.

66

But while this doctrine is established as a part of the general constitutional law

to be appointed by the court, it was held that this part of the law was unconstitutional and void, on the ground that the

of the States, statutes have very frequently been pronounced void, because, while professing to be founded upon the same principle, they in fact exceeded and violated it. The following are some illustrations: The provisions of a prohibitory liquor law (so called) which allowed offences against it to be tried in the special sessions without a jury, or with a jury of six, were held void, because at the time of the adoption of the Constitution misdemeanors by violation of the excise laws were triable only in the general sessions or Oyer and Terminer. Wynehamer v. People, 13 N. Y. 378, 472, 484. Again, it is held that the Legislature may add new offences of the same grade or class as those triable without a jury at the adoption of the Constitution— e. g., disorderly persons--and may make them triable in the same manner; but cannot prescribe such a method of trial for what was at the commom law an indictable offence-e. g., the keeping a house of ill fame. Warren v. People, 3 Park. Cr. 544. A statute of Rhode Island making the right to a jury in a particular criminal case (violation of a prohibitory liquor law) to depend upon the accused giving a bond, with surety, for the payment of the penalty and costs, was declared invalid. Greene v. Briggs, 1 Curtis C. C. 311. In Ohio a statute providing for the trial of prosecutions for assault and battery and similar minor offences before the Probate Court with a jury of six, was held void. This has sometimes been called a leading case, but the decision was avowedly based upon the special language of the Ohio Constitution, viz., “in any trial in any court the accused shall be allowed," &c. Work v. State, 2 Ohio, N. S. 296. For further cases in which statutes authorizing summary criminal and quasi criminal prosecutions in inferior courts have been held invalid, because they did not provide for jury trial, see Burns v. Le Grange, 17 Tex. 415; Smith v. San Antonio, 17 Tex. 643; Bullock v. Geomble, 45 Ill. 218; Thomas v. Ashland, 12 Ohio, N. S. 124 (municipal ordinance); Donovan v. Vicksburg, 29 Miss. 247 (summary seizure and sale of animals running at large); People v. Carrol, 3 Park. Cr. 22 (statute impairing right of party carried before a justice to give bail for appearance before a court with a jury); Warren v. People, 3 Park. Cr. 544 (statute for summary punishment of keepers of houses of ill fame). But a statute providing that keepers of houses reputed to be houses of ill fame may be required to give sureties, &c., is valid. State v. Maine, 31 Conn. 572. A statute authorizing judgment by the Probate Court, without a jury, on charges of embezzlement, &c., preferred by administrators, was held void. Howell v. Fry, 19 Ohio, N. S. 556. It has been held in New York that a member of a militia regiment may be fined and imprisoned by a court martial in time of peace. People v. Daniell, 50 N. Y. 274; 6 Lans. 44.

In Vermont the constitutional guaranty extends to minor offences. State v. Peterson, 41 Vt. 504.

Preliminary Proceedings.-Proceedings preliminary, or those which do not determine the right, are not embraced within the guaranty; e. g., an act authorizing the arrest of one illegally transporting liquor, and the detention of the liquor, &c, without warrant until warrant can be procured, on complaint made for the trial of such person, &c., is not invalid on the ground that it authorizes arrest and detention without making provision for trial by jury. Jones v. Root, 6 Gray, 435. Also an insolvent law authorizing the seizure of property on warrant is valid, the proceeding being preliminary, and not determining the rights of the party. O'Neil v. Glover, 5 Gray, 144.