Copp v. Henniker. I am not informed. If the fact was, that in that class of cases, or in all cases, payment of his adversary's costs was an incident of a party's right of jury trial in 1792 (the date of the Constitution), the decision was obviously right. If the fact was otherwise, I cannot see on what ground the decision can be sustained; for the payment of such costs would be a penalty imposed upon the party for demanding his right; and such a penalty is a manifest infringement of the right, an alteration of its substance. The penal character of the condition would not have been more apparent if the statute had expressly declared that the object of the condition was, to obstruct and prevent the exercise of the right. The plaintiff's argument seems to have led the court into the error of supposing that the objection to the provision requiring payment of the adversary's costs is, that a poor man might, in consequence of his inability to pay them, be deprived of a jury trial; whereas the real objection is, that the payment of costs, or any thing else required as a penalty for claiming the constitutional right, infringes the right by operating to obstruct its exercise. The constitutional character of the penal obstruction is not affected by the circumstance that the obstruction may be overcome by a rich man, or may not be overcome by a poor man. It is invalid because it is in law, a penal barrier, and not because, in the path of the poor, it may, in fact, be insurmountable. The facts in M'Donald v. Schell did indeed present a case of hardship, and put the penal character of the obstruction in an odious light; and, in 1836, the legislature provided for cases of poverty, by enacting that the party, not being the one who took out the rule of compulsory reference, or being unable to pay the costs, might be allowed by the court to appeal without payment. Purdon's Digest Laws (Penn.), 56, 9th ed. But such legislation is calculated to obscure the constitutional view of the subject, by propagating the idea that a penalty may be imposed upon the exercise of a constitutional right, if the right can possibly be exercised in the impaired and mangled condition to which the penalty reduces it. And the remark of the court in M'Donald v. Schell, that "all general laws operate with severity in particular cases," seems to show that the real nature of the question was not comprehended. A man may be too infirm to go to the court-house, and too poor to employ an agent to attend to his business there; and for these reasons he may be unable to enjoy his constitutional right of trial by jury. Such disabilities are not violations of that right. But if the legislature imposes the payment of his adversary's costs, or any expense or difficulty not an incident of the jury trial in use when the Constitution adopted and continued that mode of trial,-if the burden is imposed not as a necessary means of ex Copp v. Henniker. ercising the right of that trial substantially as it was exercised at that time, the burden is an unconstitutional penalty, and not the mere misfortune of a general law operating with severity in particular cases. In Keddie v. Moore, 2 Murphy (N. C.), 41, it was claimed that the right of trial by jury in cases appealed from a justice (whose jurisdiction had been enlarged), was not preserved for the poor who could not give security for an appeal. This position was not sustained by the court, who said (p. 45): "So long as the trial by jury is preserved through an appeal, the preliminary mode of obtaining it may be varied at the will and pleasure of the legislature. The party wishing to appeal may be subjected to some inconvenience in getting security; but this inconvenience does not in this, nor in any other case where security is required, amount to a denial of right." The court here evidently speak of "trial by jury," not as the substance of the particular jury trial in use when the Constitution was adopted, but as a trial which might, in some general and loose sense, be called a jury trial, without regard to the historical rule of interpretation; and the decision, that any inconvenient variation of the historical jury trial of the Constitution does not amount to a denial of the constitutional right so long as a jury trial in some indeterminate sense is preserved, is an obvious abolition of the Constitution. In Vanzant v. Waddle, 2 Yerg. 260, 264, the court say that it had been held that statutes increasing the jurisdiction of justices of the peace, and allowing appeals so that a defendant could not have a jury trial without giving security for the debt, were not unconstitutional. Flint River Steamboat Co. v. Foster, 5 Ga. 194, arose under the Georgia statute of 1841, which gave persons employed on any steamboat, on certain rivers, a lien on the boat, to be summarily enforced without a jury trial, unless the owner or manager of the boat pay so much of the claim as he admits to be due, file an affidavit denying that the rest is due, and give bond and good security in the county where the proceedings are had, in double the amount claimed, conditioned for the payment of debt and costs. It was claimed that the right of trial by jury was so clogged by these restrictions as to be virtually denied. But the court held the statute constitutional, saying (p. 208): "We cannot think the trial by jury substantially defeated by these conditions, though the defendant may, and at times probably will be subjected to some inconvenience in complying. These terms may be onerous, but this is purely a question of expediency, and one which must, from its very nature, address itself exclusively to the law-maker. And it is difficult to prescribe limits to the power of the legislature in this respect. * There is no invasion or infringement of the Constitution, so long as trial by jury is not directly Copp v. Henniker. or indirectly abolished. I repeat, it is impossible to say at what point the legislature ought to stop; and if undertaken to be said by the court, it must be at some point of great excess, that such a stand can be made.” The court then go on to suggest that it might be well to amend the stat ite so as to allow the defendant a jury trial if he would make affidavit that he is unable, from poverty, to comply with its terms, as if the only objection to an obstruction placed in the way of the exercise of the constitutional right were not its legal character as an obstruction, but the fact that some poor and friendless person might find it impassable, a doctrine alike destructive of the inviolable rights of all classes of men, a doctrine that is nothing less than this: we lawfully violate any constitutional right of the poor and the rich to such an extent as barely leaves it in their power, by the expenditure of their property, to enjoy their violated right. The decision ignores the historical test, and treats the constitutional jury trial, not as a definite and specific institution, perfectly developed, absolutely fixed, and in actual operation at the date of the Constitution, but as an unorganized, unformed, undefined, nebulous, and chaotic generality, that cannot be infringed so long as any thing remains that, for any fanciful reasons violating the truth of constitutional history, may be called a jury trial. Acting upon this theory, the court, of course, found it "impossible to say at what point the legislature ought to stop," and could only declare that, if the court should undertake to withstand an invasion of jury trial, "it must be at some point of great excess that such a stand can be made." That is the position to which we are necessarily reduced, if we abandon the historical test. The legislature may violate the Constitution a little; they may violate it considerably; they may violate it a great deal; but if they carry the violation "to some point of great excess," then it will be for the court to consider whether that is a point at which "a stand can be made." When any court undertakes to make a stand on that theory, we shall have an opportunity to learn by what legal rules the locality of "some point of great excess is to be ascertained. These four cases present the unsound doctrine in so palpable a form as to make them exceedingly valuable. The first three of them received scarcely any consideration, and they were all decided before the subject had been much discussed in any part of the country, and with out the aid of the great light now afforded by the other authorities (to which I have referred), which establish the law in a manner precluding all controversy about the general principles involved. In the application of these settled principles to particular cases, difi Copp v. Henniker. cult questions may arise, as well as in the administration of any other branch of the law of the land. A statute might be of such a character as to raise a great doubt whether its operation would infringe the right to the substance of the jury trial of 1792, or leave that right unimpaired; whether it would obstruct or facilitate the exercise of that right; whether it would be a penalty or a regulation. But in the cases thus far examined there seems to be no difficulty. If, in a class of crim inal cases, at the date of the Constitution, a defendant was entitled to a jury trial upon his complying with the single condition of remaining in custody or giving security for his appearance merely as he might elect, his constitutional right would be infringed by such a material alteration of the terms on which he can enjoy the right, as making his enjoyment of it depend upon his paying a jury fee, or the costs of the prosecution, or giving security for his appearance without the option of remaining in custody, or giving security for any thing else than his appearance, or incurring the risk of increased punishment, or submitting to any thing else that would operate as a penalty for the exercise of the right. If, in a class of civil cases, at the date of the Constitution, a defendant was entitled to a jury trial, without giving security for the judgment that might be recovered against him, or paying such part of the claim as he admitted to be due, his constitutional right would be impaired by requiring him to give such security, or to pay what he admitted to be due, as a condition of enjoying his right. His property might be attached and held as security for the judgment, unless he would give security; but a denial of a jury trial, except upon condition of giving security, would be a penalty, and a change in the substance of the jury trial of 1792. In regard to the general doctrines established by all the cases to which I have referred, I do not suppose there can be any doubt in the mind of any member of the legal profession in this State, or of any citizen who has given the subject any consideration. Upon principle and authority, these doctrines are altogether too clear and elementary to admit of any difference of opinion as to their theoretical soundness. If they are sound, the constitutional guaranty of trial by jury puts a plain limitation upon legislative power; if they are unsound, the constitutional guaranty is a myth. Can these doctrines be practically ap plied and enforced? Upon that question depends the result of the issue whether we have a Constitution or whether we have not. Applying the settled principles of constitutional construction to the provisions of section 13 of the act of 1874, which authorize the court, without the consent of the parties, to commit such a case as this to one ɔr more Copp v. Henniker. referees, to be appointed by the court for a trial, I do not see any infringement of the constitutional right of trial by jury. I see no constitutional objection to a compulsory arbitration that has no other effect than to force upon the parties an opportunity to try their case before some other tribunal than a jury. Such an arbitration may be called compulsory; but it is, in fact, nothing more than an effort to adjust a controversy in a court of reconciliation, which, by hearing the parties. "at such time and place as may be convenient," and by otherwise conforming to their convenience in a manner impracticable for the more unwieldy tribunal of a court and jury, may be useful to them, whether the proceeding turns out to be satisfactory and therefore final, or unsatisfactory and therefore preliminary. The authorities are entirely decisive that such a proceeding is not an infringement of the constitutional right of jury trial, if a reasonably unfettered right of appeal is allowed to a court where the constitutional right in its entirety can be enjoyed. Plimpton v. Somerset, 33 Vt. 283, 293; State v. Peterson, 41 id. 504, 522, 523, and authorities cited in Sedg. on Stat. and Const. Law, 491, n., 497, 2d ed.; Cooley's Const. Lim. 410, n., 2d ed.; 1 B. & H. Ld. C. C. 493, 2d ed. Whether any other part of section 13 be held valid or void, so much of it as authorizes the sending of this case to a referee being open to no constitutional objection, and being so distinct and independent that the legislature might well have seen cause to enact it without reference to the validity of any other part of the same section, should, in my opinion, be held valid. 41 N. H. 554, 555; East Kingston v. Towle, 48 id. 57, 65; State v. Copeland, 3 R. I. 33, 36; Fisher v. Mc Girr, 1 Gray, 1; Com. v. Clapp, 5 id. 100; Com. v. Hitchings, id. 482, 485, 486; Lincoln v. Smith, 27 Vt. 328, 355; State v. Gurney, 37 Me. 156, 162, 164; Cooley's Const. Lim. 177–181; Sedgwick on Stat. and Const. Law, 413, note a. Further than this it is not necessary for the court to go in the decision of the question now presented by the bill of exceptions in this case. The only exception now before us is to an order that the action be referred. It does not yet appear whether either party will be dissatisfied with the referee's report; whether, if the case is ever tried by a jury either party will offer the report in evidence, or whether either party will object to its admission. Whenever a question as to the admissibility and effect of a referee's report in a jury trial is raised, it will be the right of the party raising it to be heard, and not to be precluded by a premature decision made in a case where it is not necessary to make it. As a general rule, a court will not pass upon a constitutional question, unless a decision of it is |