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of the proceedings of the convention in relation to it, showing the original form of the section, and its subsequent modifications, will be found in the chapter on the first Constitution. The provision, as finally adopted by the convention, was in the following form:

“Trial by jury, in all cases in which it hath heretofore been used in the colony of New York, shall be established, and remain inviolate forever.”

By the Constitution of 1821 the provision was stated, and has since continued, in the following form:

“The trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever.”

The provision allowing parties to waive a jury in civil cases was added in 1846, and the Convention of 1867 included in its proposed constitution a provision specifically authorizing a jury of six in justices' courts. Attempts were made in the Convention of 1777 and in subsequent conventions to modify the rule requiring unanimity, and to permit a verdict by a specified number of jurors.

The provision, as stated in the Constitution of 1777, illustrates a suggestion frequently made in this work that the founders of our state government incorporated and crystallized in the first Constitution existing conditions and institutions so far as practicable. They did not attempt to define trial by jury, nor specify the cases in which such trial should be had. They preserved the right as already established, and, by another section (35), continued colonial statutes which were in force on the 19th of April, 1775; so that whatever right of trial by jury existed in the colony on that day was preserved by the Constitution, and could not be modified nor abridged by the legislature.

Trial by a jury of twelve was established early in the history of the colony. The first assembly, 1683, formally stated this policy in its first act,—the famous Charter of

Liberties and Privileges,—which declared that “all tryalls shall be by verdict of twelve men, and as near as may be peers or equals and of the neighborhood and in the county, shire or division where the fact shall arise or grow, whether the same be by Indictment, Infermacon, Declaracon or otherwise against the person, Offender, or Defendant," and the act relating to courts, chap. 7, also provided for a court of sessions, to be held every year in each county, with general jurisdiction in civil and criminal cases, which were to be tried before a jury of twelve men. There was also to be a court of oyer and terminer with jurisdiction of all capital, criminal, or civil cases and causes triable at common law. Trial by jury was secured by the provision that “no person's right or property shall be by this court determined" unless the facts in relation thereto be admitted by the party, either directly or by default, "or the fact be found by the verdict of twelve men of the neighborhood, as it ought of right to be done by the law.” The judiciary act passed by the revived assembly of 1691, chap. 4, providing for courts of session, common pleas, the mayor's court of New York, and the supreme court, expressly declared that no question of fact on a trial in any of these courts should be deemed determined unless by the admission or default of a party, or the verdict of a jury of twelve men. The new Charter of Liberties, of 1691, reasserted the policy of trial by jury in all cases as declared in the charter of 1683. Subsequent legislation modified the rule by denying the right of a trial by jury in minor cases, both civil and criminal. Thus, by the act passed October 14, 1732, a person charged with a misdemeanor, breach of the peace, or other criminal offense under the degree of grand larceny, might be tried by three justices of the peace, without a jury. This rule was re-enacted and continued in the act passed September 1, 1744. The offense of stealing prop

erty of the value of less than five pounds was added by an act passed January 13, 1768. Acts passed October 14, 1732, and September 1, 1744, conferred the same criminal jurisdiction on a court to be composed of the mayor, deputy mayor, or recorder, and two aldermen of New York. These statutes in relation to small offenses were in force on the 19th of April, 1775, and, by operation of 8 35 of the first Constitution, became a part of the legal system of the new state.

Similar changes were made in the policy relating to minor civil causes, but the statutes need not be mentioned here in detail. The policy relating to small causes was expressed in the act passed March 12, 1772, conferring jurisdiction on justices of the peace, mayors, recorders, and aldermen to try causes involving less than five pounds, and which provided for a jury of six men. This continued the rule stated in several earlier statutes. The right of trial by jury, secured and preserved by the first Constitution, included the general right to have questions of fact determined by a jury, to be composed in the higher courts of twelve men, and in the lower courts of six, except that summary convictions were authorized for minor offenses, without a jury.

The right of trial by jury means the right as it existed at the adoption of the Constitution. If, under specified circumstances, such a right did not exist at that time, a person is not afterwards entitled to have it provided by law, but in legislating in relation to such circumstances, or new circumstances, a jury trial may be provided or not, at the discretion of the legislature. Colon v. Lisk (1897) 13 App. Div. 195, 201, 43 N. Y. Supp. 364; Sheppard v. Steele (1870) 43 N. Y. 52, 3 Am. Rep. 660; People ex rel. Witherbee v. Essex County (1877) 70 N. Y. 228, 234. This rule should be considered in connection with the observation of the court in the Wynehamer Case (1856) 13 N. Y. 378, 426, that the phrase "in all cases in which it has heretofore been used” is generic, and that "it does not limit the right to the mere instances in which it had

been used, but extends it to such new instances and like cases as might afterwards arise;" and it is there said that felonies, being triable by jury at the adoption of the Constitution, new felonies subsequently created must also be tried by a jury, because they belonged to the same class.

Writings are to be construed as to the time when they are made; and "heretofore” in the jury clause, means before 1846, and cannot, to limit its meaning, be carried back to 1777, and confined to the cases which, at that earlier period, were triable by jury. Wynehamer v. People (1856) 13 N. Y. 378, 427; People v. Kennedy (1855) 2 Park. Crim. Rep. 312.

The meaning of the word "used" in the jury provision in the Constitution of 1777 was considered in Malone v. Saints Peter & Paul's Church (1902) 172 N. Y. 269, 64 N. E. 961, where Judge Haight, in an interesting review of the provision, after observing that the "unwritten common law of England was largely made up of customs which had existed from an ancient period and was in force in the colony of New York," and that there was no statute specifying the cases in which parties were entitled to a trial by jury, says that of necessity the word "used” referred to the customs then existing. Judge Haight's remark that "there was no statute specifying the cases in which parties were entitled to a trial by jury” should be considered in connection with the colonial statutes already cited in this note, defining the jurisdiction of certain courts, and expressly declaring that no question of fact should be deemed determined except by admission or default, or by the verdict of a jury of twelve men. Certain courts had jurisdiction of specified classes of actions, and these actions were triable by jury.

Apprentice.—“The constitutional right of trial by jury does not extend to claims to the custody of children under indentures of apprenticeship.” Re Donohue (1876) i Abb. N. C. 1.

Assault and battery.—A person charged with assault and battery was, under the common law, entitled to a trial by a jury of twelve men. The act of 1850, chap. 210, relating to the jurisdiction of justices of the peace in the town of Watervliet, and which, in effect, required the immediate trial of the accused without an opportunity to give bail, was held unconstitutional. People v. Carroll (1855) 3 Park. Crim. Rep. 22. This rule was changed by $ 26 of article 6, as added by the judiciary article of 1869.

Challenge.—The act of 1858, chap. 332, under which the people were entitled to five peremptory challenges in certain criminal cases,

did not impair defendant's right to a trial by jury. The subject of challenges is wholly within the discretion of the legislature. Walter v. People (1865) 32 N. Y. 147.

The right of trial by jury was not impaired by the act of 1873, chap. 427, which authorized the court, without the aid of triers, to try and determine challenges to jurors. “It took nothing from the prisoner which the accused had previously enjoyed, and in no way interfered with his right to an impartial, unbiased jury." Weston v. People (1875) 6 Hun, 140.

Contempt.-Courts of justice have had the power of punishing contempt by summary proceedings from time immemorial. It was a part of the common law which was continued by the Constitution, and a person charged with contempt is not entitled to a trial by jury. Egan v. Lynch (1883) 17 Jones & S. 454.

Corporations.-An act authorizing the expulsion of members of medical societies under specified conditions was held not obnoxious to the constitutional provision preserving the right of trial by jury. Medical societies might constitutionally be vested with disciplinary power over their members. Re Smith (1833) 10 Wend. 449.

The constitutional provision relating to trial by jury does not apply to the proceeding for the dissolution of an insolvent corporation. Re Mechanics' F. Ins. Co. (1857) 5 Abb. Pr. 444.

Stockholders in insolvent banking associations are not, in proceedings to enforce their liability under the act of 1849, chap. 226, entitled to a trial by jury. The proceedings are in equity, formerly the court of chancery, and parties in that court could not, as a matter of right, demand a trial by jury. United States Trust Co. v. United States F. Ins. Co. (1858) 18 N. Y. 199. The same rule is declared in relation to proceedings against insolvent insurance companies under the act of 1862, chap. 412. Sands v. Kimbark (1863) 27 N. Y. 147; Sands v. Tillinghast (1863) 24 How. Pr. 435.

There is no constitutional right to a trial by jury in a proceeding to set aside a corporate election. 1 Rev. Stat. 602, 8 5 (1 Edm. 560), authorizing summary proceedings in such cases, was held constitutional. Re Newcomb (1891) 42 N. Y. S. R. 442, 18 N. Y. Supp. 16.

Counterclaim.-Section 974 of the Code of Civil Procedure, prescribing, in substance, that the mode of trial of an issue raised by a counterclaim shall be the same as if an action were brought upon the same counterclaim, does not give the defendant an absolute right to a trial by jury, but an application for such a trial should be made on notice, as prescribed by $ 970. The right to a trial by jury upon a counterclaim is further restricted if the action is of an equitable

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