Flint River Steamboat Company vs. Foster. ture, would be at once to strike at the root of all their Statutes, providing summary remedies against sheriffs, coroners and constables; also against those providing a remedy for securities, who have paid the debt of their principal. Who ever pretended that the Acts increasing the jurisdiction of Justices of the Peace, from twenty to fifty and afterwards to one hundred dollars, were unconstitutional? It has been urged, and with some plausibility, that the Act is unconstitutional, because it gives the plaintiff a summary remedy, and that too, without an intervening jury trial, or at any rate, that the party could not have it without giving security for the debt, &c. whereas, the law as it stood before, gave him a jury trial, on appearance bail only. The answer to this objection is, that the right of trial by jury is not taken away. It does not follow that the ancient right of trial by jury is taken away, because the pleadings and issues are not submitted in Common Law form. The Act of the Assembly, then, does not violate the Constitution. It does not give to the Court an arbitrary power to seize the estate of the Bank or of the debtor to the Bank, and dispose of it without giving the parties a day in Court, and the means of contesting before a jury, all such facts as may be necessary to the attainment of justice." In Biddle vs. The Commonwealth, 13 S. & R. 410, Chief Justice Tilghman says, "But it is said that the Constitution of the State was infringed by impairing the trial by jury. The action was brought before a magistrate, who decided without a jury. But then, the defendant had the right to appeal to the Court of Common Pleas, where he might have a trial by jury. There is no weight in the objection, that the appeal is clogged with the condition of the appellant's making oath, that he verily believed that injustice had been done him, and that the appeal was not made for the purpose of delay. Laws, such as these, promote justice and have the substance of the trial by jury unimpaired, and that is all that is required by these expressions in the Constitution, "that trial by jury shall be as heretofore." Thompson and Biddle, for plaintiff in error, in McDonald rs. Schell, 4 S. & R. 240, contended that to deny an appeal under the arbitration Act of Pennsylvania, passed 20th March, 1810, until the payment of costs, which frequently amounted to enormous sums, and to embarrass it with conditions, with which a poor man could not comply, were effectually to deprive him of a trial Flint River Steamboat Company vs. Foster. of the Assembly increasing the jurisdiction of a Justice of the Peace to £30, was resisted, as inconsistent and incompatible with the Constitution of the State. Jocelyn contended that the jurisdiction of magistrates would be extended until the rights of trial by jury would be frittered away entirely; that it was a direct interference with their bill of rights, declaring "that in all controversies at law, respecting property; the ancient mode of trial by jury, is one of the best securities of the rights of the people, and ought to remain sacred." It was argued, he said, that trial by jury was not taken away by this increase of jurisdiction; that the party dissatisfied with the judgment of the Justice, may appeal to a Court, where he can have his cause tried by a jury. It is true, he said, that the right of jury trial is given by the Act, but it was so clogged with difficulties, that few can enjoy it, and as the law now stands, it often deprives the poor, who cannot give the security required, of the right of trial by jury. Locke, Judge, delivered the opinion of the Court-" when the convention declared that the ancient mode of trial by jury should be preserved, no restriction was thereby laid on the Legislature as to erecting or organizing judicial tribunals, in such manner as might be most conducive to the public convenience and interest. It is true that the Legislature cannot impose any provisions substantially restrictive of the trial by jury; they may give existence to new forms; they may modify the powers and jurisdiction of former Courts, still, the sacred rights of any citizen, to trial by jury, must be preserved. Here the right is given of appealing to a Court, where the defendant will have the benefit of trial by ju ry. It cannot, therefore, be said, that the right is taken away. So long as it is preserved through an appeal, the preliminary mode of obtaining it, may be varied at the wil 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 any other case, where security is required, amount to a denial of right.” In Vangart vs. Waddel, 2 Yerg. 260, constitutional objection was taken to the Act of 1821, for giving new and additional remedies to the creditors of the Tennessee Fayetteville Bank, and the Farmers and Mechanics' Bank, to enforce the payment of their debts. But the Court, in delivering its opinion, says, "To admit the principle, that such a law cannot be passed by the Legisla Flint River Steamboat Company vs. Foster. ture, would be at once to strike at the root of all their Statutes, providing summary remedies against sheriffs, coroners and constables; also against those providing a remedy for securities, who have paid the debt of their principal. Who ever pretended that the Acts increasing the jurisdiction of Justices of the Peace, from twenty to fifty and afterwards to one hundred dollars, were unconstitutional? It has been urged, and with some plausibility, that the Act is unconstitutional, because it gives the plaintiff a summary remedy, and that too, without an intervening jury trial, or at any rate, that the party could not have it without giving security for the debt, &c. whereas, the law as it stood before, gave him a jury trial, on appearance bail only. The answer to this objection is, that the right of trial by jury is not taken away. It does not follow that the ancient right of trial by jury is taken away, because the pleadings and issues are not submitted in Common Law form. The Act of the Assembly, then, does not violate the Constitution. It does not give to the Court an arbitrary power to seize the estate of the Bank or of the debtor to the Bank, and dispose of it without giving the parties a day in Court, and the means of contesting before a jury, all such facts as may be necessary to the attainment of justice." In Biddle vs. The Commonwealth, 13 S. & R. 410, Chief Justice Tilghman says, "But it is said that the Constitution of the State was infringed by impairing the trial by jury. The action was brought before a magistrate, who decided without a jury. But then, the defendant had the right to appeal to the Court of Common Pleas, where he might have a trial by jury. There is no weight in the objection, that the appeal is clogged with the condition of the appellant's making oath, that he verily believed that injustice had been done him, and that the appeal was not made for the purpose of delay. Laws, such as these, promote justice and have the substance of the trial by jury unimpaired, and that is all that is required by these expressions in the Constitution, "that trial by jury shall be as heretofore." Thompson and Biddle, for plaintiff in error, in McDonald vs. Schell, 4 S. & R. 240, contended that to deny an appeal under the arbitration Act of Pennsylvania, passed 20th March, 1810, until the payment of costs, which frequently amounted to enor mous sums, and to embarrass it with conditions, with which a poor man could not comply, were effectually to deprive him of a trial Flint River Steamboat Company vs. Foster. by jury, and therefore, a direct violation of the Constitution of the State. The Court declined hearing Todd in reply, sugges ting that the press of business made it a duty not to hear counsel in whose favor they had formed an opinion, and decided that an appeal could not be entered without payment of costs "The law may, undoubtedly, in certain cases bear so hard on a poor mar as almost to deprice him of his appeal, but that will not justify the Court in deciding that the law is void. All general laws operate with severity in particular instances.” I would remark that the law always properly manifests its tenderness for the impotent. Hence the saving in the Statute of Limitations, and numerous other statutes in favor of infants, feme coverts, &c. It is not unreasonable, therefore, that the Legislature should have provided a summary remedy for the benefit of those who navigate our water-courses, especially upon those rivers where it is notoriously true that the owners of steamboats and other water-craft usually reside aboard, and from that and other causes are not accessible by the ordinary process of law. Their agents, however, as this record discloses, are generally present, and can defend for them. These doctrines, like most others coming before that trilainal, were thoroughly discussed and ably decided by the High Court of Errors and, Appeals in the State of Mississippi, in Lewis, et al. rs. Garrett's Adm'rs, 5 Howard, 434. Upon the re-argument, Judge Trotter, delivering the opinion, said, "the Constitution in guaranteeing to the citizens of this State the right of trial by jury, did not intend to disturb the ancient and well establishes jurisdiction of the several Courts of the country, nor to change entirely the modes of trial, as they are regulated by the Common Law. For if that interpretation were given to it, no order of the Probate Court could be sustained, and the decrees of the Court of Chancery, would be mere waste paper. It was designed simply to guard the people against the arbitrary or capricious interference of the government, and was conceived and adopted in the spirit of the great charter of English liberty, which provides that no man shall be deprived of his life, liberty, or property, except by the judgment of his peers, or the law of the land. Under this charter the people of England have long flourished in the enjoy ment of a boasted freedom from any responsibility but to the declared and established laws of the land. To the rule of conduct Flint River Steamboat Company vs. Foster. which these laws prescribe, they submit themselves and their property, and are bound by their judgments, in whatever mode they may be pronounced; and it is not regarded as any infringement of their rights thus solemnly pledged, that in the arrangement and distribution of the powers of the several Courts, which have grown up under the Common Law in that country, modes of trial in many cases are allowed, which dispense with the verdict of a jury. For whether the Court pronounces the judgment of the law upon facts found by the jury, in cases where a trial by jury is required, or upon facts ascertained in other modes, when they are permitted, the judgment is still the award of the law; and the inconvenience to which it may subject the party, is the result of the judgment of his peers in the one case, and of the law of the land in the other. And it is in this sense that the Constitutions of this country have provided that no person shall be deprived of life, liberty, or property without due process of law." And this reasoning is fully sustained by the Supreme Court of the United States in the case of the Bank of Columbia vs. Oakley, 4 Wheaton, 235. The 14th section of the Act of Assembly of Maryland, of 1793, c. 30, incorporating the Bank of Columbia, is in these words: "And whereas it is absolutely necessary, that debts due to the said bank should be punctually paid, to enable the directors to calculate with certainty and precision on meeting the demands that may be made upon them: Be it enacted, That whenever any person or persons are indebted to the said bank, for moneys borrowed by them, or for bonds, bills, or notes given or indorsed by them, with an express consent in writing, that they may be made negotiable at the said bank, and refuse or neglect to make payment at the time the same may become due, the president shall cause a demand in writing on the person of the said delinquent or delinquents, having consented as aforesaid; or if not to be found, have the same left at his last place of abode; and if the money so due shall not be paid within ten days after such demand made, or notice left at his last place of abode as aforesaid, it shall and may be lawful for the president, at his election, to write to the clerk of the General Court, or of the county in which the said delinquent or delinquents may reside, or did at the time he or they contracted the debt, reside, and send to the said clerk the bond, bill, or note due, with proof of the demand made as aforesaid, and order the said Clerk to issue capias ad |