The New York herald., 1869-02-21

Legislature Is herein authorized W establish
The first constitution OF this State adopted In con-
York. at Kingston the Goth OF April, l7T7 section
four, Is identical in meaning, If not In language
with thar OF 1922 !, is clear, therefore even with
out reference 10 the constitution OF the United
states that from the year iT77 10 the present tne
within the limits OF this State the tfa by iry was
and is guaranteed. and That II any court or courts
have been created with powers trausGendng the
provisions OF me common law, such powers are
unconstitutional and void.
The right OF trial by jury Ia guaranteed by .Magna
Charta" (sectioD twenty -ntnel in these Words
"NtiLHs Hbe1' homo clDlutur Uel ig7ljr3nesu- dut
ernletus. dut fatdget,1' dut era'etu'' atQao moao
ttaas super ca,n 1auttnsus gts per sepdts JuGt.
ctuJn p1yiitnt stortin ret per ipgelR tenR.n The
great charter Of Henry I'LL. "a. d. 1921 is almost
Identical Ia language. That the trial oy Jury, how
ever, was known long previous 20 the regniture at
Runnymede, and Is even Older than the COM
mon law ITSELF is conceded by tho best and
most learned authorities. Antlquarians have given
different oil the origin OF jury trials. They
have been Identified with the "combur-galors' OF
the Saxons the nquistors or assessors VINO investi
gated and certified to the Norman lori the extent Of
his feudal rights ana with the JUDGES Of the Ro-
mans and II s conceded that all snch tribunals con-
sisted OF twelve men. From whatever cause it
originated the number twelve seems TO have
been adopted by all the Northern nations OF
controversies. Tnls number twelve men (00,ti
hon,faesl appears to have been engrafted upon and
became part OF all courts or "Hundreds' or other
bodies constituted 70 determine controversies. The
laws OF Alfred upon this subject may be briefly
scrlbed thus:-"f any one accuse kings thane.
let him do ii with twelve kings thames. II any
accuse thane OF less degree tnan kings thane
lee him purge himself with eleven OF his equals
and o or one HUME anS n ns History EnaSns
cnapter second, who speaks Of ''tweye freeholders
bound TO administer impartial JUSTICE" Blackstone
jury vol g. chap. 24 traces trials by jury to very
ancient date and always speaks OF twelve men
as being necessary to constitute Jury and that this
has always been considered o maxim Of the cOm-
mon law. In his own words. the trial by jury ,Is
the most transcendent privilege which any subject
can enjoy or wish for; that ne he cannot be affected
unanimous consent OF twelve OF his ncighbors and
equals" (3d Blackstone 37g) And Reeve, In speak
BY Magma Cnarta speaks Of the trial by jury as sfhe
TRIAL ~ twelve men sworn to speak the truth. .
Reeve's Hist Eng Law, 81 Thai the trial by jury,
as known to the Common Jaw, is engrafed upon and
is part Of the great charters think IL UNNECESSARY
even to discuss. In the language Of Lord Coke -
"They the part but declarations OF the
keeping whereof the king was bound and sworn y
preface to second Inst and 81 Wide also Sir
Matthew Hales History Of the Common Law, p. 1881
That trial by jury means at common law trial by
twelve men (o0ni h0na'es can entertain no doubt.
That IL has been known as such for centuries
parent Therefore, II the Legislature OF this Stale
has created any court contrary TO the provisions OF
the common law, the constitution OF the United
States, or constitution OF 1777 confirmed by those OF
1922 and 1S46, enabling such courts to deprive o
citizen OF his rights OF person and property without
u
answer to this proposition that the various acts
creating justices OF the peace assistant justices and
district courts have been acquiesced in and re-
ceived as "the law OF the land" tor 40 many
years. II can be declared that jury IL TO consist
Of only six persons by another proviso II can be
ean Gc 10 this Is what
by trial by jury or proceeding at common law.
AS have had before occasion to remark in cases
that have been brought before this court should be
very loath, and, indeed, would refuse to declare
any act Of the Legislature OF this state unconstitu
tiona until passed upon by q higher tribunals but
in this Instance think am fully sustained by Such
tribunals and authorities. This action Is upon a
statute highly penal in It's nature, ana which must,
OF course receive strict construction; and az such
law CHIEF Justice fhhrGaii Il ohio State Reports,
prefix, imports q body OF twelve men in a court OF
justice Is as well settled as any legal proposition can
be-" vide also Wisconsin H., 2, y, and do 9, 2le,
the decision In the Court OF Appeals In the OF
Cruger vs. The Hudson River Railroad Company az
n. Y. r.. pages leo and 1881, says:-"That Term "a
jury. when spoken OF In connection with trial by
jury in the second section OF the same article (the
constitution Of 1s46, imports jury OF twelve men,
whose verdict must be unanimous. Such must be It's
acceptation to every one acquainted with the com.
mon law and aware OF the hign estimation in which
that institution 80 constituted has Tor SO long q
period been hed.r In the cases OF Wyne-
hamer VS.. The People, and the People
vs. Toynbre, which two cases were decided
the Of Inc act or the Dss prevention
Of intemperance, pauperism and crime laws OF 1856
p 3lO). One OF the grounds for the decision OF the
Court OF Appeals declaring said Fact unconstitutional
was, that the defendant was deprived or trial by
jury, as guaranteed by the constitution. Johnson
JUdge) In this case uses this language reerrng
Jury or SIX mcn-sThat Ia not wnat the constitution
means by u jury trial. That must be, within the
terms Of the constitution jury OF twelve men, Q3
n ", 427, And again, Mitchell tJudge) IN the
case, page ASS, says:-.This means the common law
jury OF twelve men, udcm page 45s
Upon the motion before this court the learned
counsel for the defendant cited portions OF decision
OF the General Term OF the Supreme Court OF the
Fifth district mot as yet repored wherein 1t is a
legged that Judge Miller, after commenting upon the
case OF Gleason vs. Ketefas az N. .49ll remarks:
There Is no doubt as to the power or the Legis-
lature to enlarge the jurisdiction Of Justices
Of the peace to any amount 1t may
deem proper. These courts VIII have full power to
try hear and determine all such cases. unless either
oil SAID parties shall demand trial by jury. That
done II may not be In the power or the court topro
ceed. 1t cannot empanel q jury OF "twclve men,"
am, therefore, for the reasons before set forth and
from the authorities have cited, forced to the con-
clusi0n that this court has no power to empane IA
a Jury to try a cause more tnan SIX men: that the
common law, the constitution OF the United States,
and each and every Of the constitutions of the state
0f New York contemplated that IN all penal actions
Jury should consist of twelve men, and that. there
iorc and until directed by a higher tribunal, this
court is powerless - proceed with this action