#### Smith v. Campbell.

"i I From Halifax. J

The act* enlarging the jurisdiction of Justices of the Peace, do not violate the 14th article of the Bill of Rights.

This was a suit originally commenced by warrant on a note for twenty-five dollars, and the only question presented on the appeal of the defendant, was on the constitutionality of acts of the General Assembly which give to a single individual the right to decide “a controversy at law.”

The case was argued at considerable length by R. Potter on behalf of the appellant, who took the following grounds.

*591The acts of assembly which give to a single individual authority to decide controversies of this kind, contravene the 14th article of the bill of rights, which declares “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 and inviolable.” The bill of rights, by the 44th article of the constitution, is adopted into it and made part thereof. The legislature, by successive acts passed in different years from 1785 up to 1820, have been increasing gradually the jurisdiction of a single magistrate, who has no jury in his court, as well by enlarging the amount over which he had jurisdiction, as by extending the objects of that jurisdiction, until a numerous class of “controversies at law,” of which this is one, are declared to he cognizable by a single justice of the peace out of the County Court.

If it be said that the article referred to, contains rather a cautionary admonition addressed to the discretion of the legislature, than a positive command requiring uncon-diti nal obedience, inasmuch as it declares that the trial by jury ought to, and not that it shall remain sacred and inviolable; we answer, that the circumstances of our country at the time the constitution was formed, taken in connection with the language used throughout the bill of rights, will show that the word ought was used as syno-nimous with shall. At the time that the freemen of this country met in convention, they had just come from a war brought on by their adherence to certain principles connected with the science of government; while li.ry admitted that the sovereign power had rights, they held that rights also belonged to the governed, and the war of the revolution was a contest for these rights. It was therefore natural for them, when they met to form a government tor themselves, that a solemn declaration of those principles and rights which had cost them so much blood and treasure should be their first public act: it can hard*592ly be supposed that they intended to leave the preservation or destruction of principles so important as these, to the discretion or caprice of future legislative bodies. [jju 0f rights is made part of the constitution, and it is a fact, that except in the bill of rights, there is not to be found any security for the life, liberty, or property of the citizen; and such security in that instrument rests solely on the imperative nature of the word ought for which I contend. Accordingly the 11th article declares, that general warrants, under certain circumstances therein enumerated, are dangerous to liberty and ought not to be granted- The 12th article declares, that no free man ought to bo taken, imprisoned, or disseised of his freehold, liberties or privileges, or outlawed or exiled, or in any manner destroyed, or deprived of his life, liberty or property, but by the law of the land. The 13th article declares, that every freeman deprived of his liberty is entitled to a remedy to inquire into 1he lawfulness thereof, and that such remedy ought not to be denied or delayed. The 14th article is the. one now under discussion, in which the word ought is used. The 15th declares, that the freedom of the press ought not to be restrained; the lGtli, that the people ought not to be taxed without their consent; the 2 2d- that hereditary honours ought not to be granted; the 23d, that perpetuities and monopolies ought not to be allowed; the 24th, that no expost facto law ought to be made. Now, unless it can be believed that the convention intended to give to the legislature, which they then created. power to interfere with the rights mentioned in these articles, at the very time when they had assembled to declare them, by a solemn act, perpetual and unalterable; then the word ought was used in a force and efficacy adequate to the protection of those rights, and must consequently be received as imperative.

But it may be said, this is not “acontroversy respecting property.” It may here be remarked, that as the object of the convention was simply to lay down first prin-*593eiples in the bill of rights, without pretending by an express rule to provide for every possible case that might occur* it is but reasonable and fair to construe their declarations in such manner as to render the principles cf-Orient for the objects contemplated: it is also fair to suppose, that as these principles were meant for a public rule, •and for the protection of the people, they would not he clothed in language technical in its import, hut in such terms as that the mass of the people, who are ignorant of technical meanings, by looking on the instrument would understand their rights and perceive their violation. According to common understanding, a controversy about money, or its substitute bank notes, is a controversy about property: the common meaning of the word property is, that which is a man’s own, and the lay gents will hardly be persuaded that they have no ownership in their bank notes or specie, or that they have no ownership in the debt due to them which must at last be paid in these notes or specie. The convention has used general terms, all controversies respecting property, they meant all judicial controversies having reference to property, bearing upon property, influencing the disposition of property; they embrace all controversies at law the object of which is to compel the payment of money, as well as such as involve directly the title to property or estate. This view is much st< engthened by the fact that on an inspection of the constitution and bill of rights, it is very apparent that the convention meant to provide for all kinds of rights, and divided them into two classes, viz. personal and relative; as to his personal rights, it will be found that by the 7th, 8th, 9th and 12th sections, be is protected as to his person from convictions of crimes hut by a jury in open Court, from unlawful imprisonment, iVc. from outlawry, exile, and is protected as to property in the enjoyment of his freehold, liberties and privileges: then comes the 14th sect, by which if he is not protected in the enjoyment of what are technically called rights and ere- *594 dits, i. o. things In action, &c. he has no protection at all in the instrument, and the legislature may taka them away when it pleases. Again, if debts are not cosn-pr<>ju,n(]e(j jn tit is term property, it will follow, that the. legislature may give jurisdiction to a single justice, of debts to the amount of thousands; the individual of whom the money is claimed may have no estate but money; he will hardly be satisfied to have an ignorant magistrate pass a judgment to deprive him of his money, when the bill of rights declares that his property shall be taken away only when twelve of his peers say so. Should it be said to him, the debt which is claimed by the plaintiff is not property, he would answer, ‘ but my money is property to me, and it is that which he seeks to take from me.’ Or suppose the person sued, should own nothing but «laves. What is the effect of the judgment, which the magistrate. pronounces? An execution under which his slaves are sold. When lie complains, as well he may, that in the teeth of a positive prohibition, his property has been taken away by the act of the magistrate, shall he be told, in mockery of justice, that the magistrate decided no controversy respecting his property, that he only decided on the debt? He might answer, marvellous is it then that I should, in a law suit, lose that which was not the subject of controversy in the suit. But it will be said, the legislature may and will give jury courts concurrent jurisdiction where the debt is large. It is hard to say what the legislature will deem a large debt. Thirty dollars was once deemed large enough for the jurisdiction of a single justice, then sixty dollars, now it is one hundred dollars. But no matter what they deem large or small, the right of the debtor to his money, his property, is not to be affected by the legislature’s leaving it optional with the plaintiff to sue him in or out ol a jury court: the bill of rights says he shall have a .jury, not he may have one if plaintiff pleases, or if he himself chooses to appeal from the justice to the County Court. *595I deem it unnecessary to submitto this Court any remark to show, that by the phrase all controversies, is meant all judicial controversies. Farther, I am yet to learn, that in the estimation of the convention the right to one thing or article of property was deemed more important (simply as a right) than to another. No matter what might be the value, real or supposed, of any thing; the convention met to settle the fixed and unalterable right of the person who owned it, until such right was destroyed in some prescribed way.

If, then, the purpose of the convention was, not to act as appraisers of property, not to determine that land was better than goods, and goods better than money, and therefore the right to hold each should be proportioned to its relative value; but to declare one general right of every man to hold his own until his peers decided that he ought in justice to hold it no longer; if such, I say, was the purpose of the convention, with what propriety is it contended, that the landholder shall have his right to the freehold protected by the intervention of a jury, and the money holder shall have his right to his money placed at the mercy of ignorance and prejudice in the person of a justice of the peace? The right of each is equally dear to him, and it cannot be doubted but that the convention meant to protect each alike, so far as a jury is any protection.

Upon the whole, then, it seems that the true construction of the article is, that in every controversy before a Court, where the right of an individual to that which in common parlance is called property, or to that to the possession of which the common consent of mankind has attached value, comes in question, such right must be settled by a jury.

But it will be said, the defendant may appeal to the County Court, which has a jury, and therefore the jurisdiction acts do not necessarily violate the constitution. Yes, he may appeal, if he can give security. But what, say» *596the constitution? “That in all controversies at law respecting property, the andent mode of trial hy jury, is one of the best securities of the rights of the people, and ought †0 rernajn sacred and inviolable.” What is the ancient mode? I have read, de jure, respondent judices; defacto ja-ratares; it is the andent rule that in every judicial proceeding, whore fads are contro voided, the jury must pronounce on them, not that the party must ajjpeal and then a jury pass on them. The trial by jury, therefore, ought not to be subjected to the possibility of violation, much less should the benefit of this species of trial be so jeopardized as to render it a mere possibility for it to escape violation; for this right of appeal belongs not to every man, it is for him who can give security. But it is enough for my purpose to say, that if J have shown that the acts giving jurisdiction are Unconstitutional, any proviso saving the right of appeal cannot make them constitutional.

Henderson, Judge.

The warrant commands the defendant to appear at the suit of the plaintiff before a single justice of the peace, (a court without a jury,)'to answer him for the non payment of a debt of twenty-five dollars. The case, therefore, depends on the question, is this a controversy respecting property according to the meaning of those words as used in the 14th section of the declaration of rights? That section declares, 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 and inviolable. At the time this declaration was made, and long bofore, a single justice of the peace, out of doors, a court similar to the one before which this defendant is called in all respects except as to the sum over which it has jurisdiction, had cognizance of all demands arising upon contracts to a very small amount. This jurisdiction has, from time to time, been much enlarged as to the sum over which the justice’s court has cognizance; it adjudicated without the *597aid of a jury. From the phraseology of the section I think it is plain, that in the opinion of the authors of the declaration, a controversy respecting a debt was not a controversy respecting property. That a debt was not property. For if it was, they would not have used the words remain sacred and inviolable; to remain, to be, to continue as it is. The word remain supposes a present state of things, which is to continue; and if in all trials at law respecting property, there must be a jury, the principle is as much violated when one cent is the subject of controversy as when ten thousand dollars are. Nor can the words be at all satisfied by permitting the jurisdiction to remain as it then stood; that is, not to increase the amount; for the words are, all controvei’sies at law respecting property, not all controversies to a certain amount. But I think that there can be no doubt when the other parts of the section are considered. The words respecting property are restrictive of the words, all controversies. What controversies are without the restriction? criminal prosecutions? they could not be intended, for they are provided for by the 9th section. Besides controversies respecting property there are but two others; controversies respecting debts or duties, and controversies respecting rights. If they are included under the description respecting property, then these words are useless and vain. The section has the same meaning without them as with them. They lose entirely their restrictive effect. For according to the opposite argument controversies respecting property mean all controversies whatever, except criminal prosecutions, and they are provided for by another section. But a debt or duty is not property in the proper sense of the word, although to comply with the intent, it is often so taken. Property is a thing over which a man may have dominion and power to do with it as he pleases, so that he violates not the iaw. He may give, grant, or-sell it at his pleasure. A person has an interest in a debt or duty; but a property in a thing only, *598either natural or artificial. He cannot give or grant á debt or duty, because it is not property,* not because, as some supposed, the law through policy will not permit a fljjng ¡n acflon to be given or granted; it is because this thing in action is not property, that it cannot be granted. A rent service, a rent charge, a rent seek, may be granted, because the law recognizes it as property. And a mere covenant, when annexed to an estate, may be granted, because it is annexed to property. If the objection to granting a debt or duty is referable to policy, why permit these rents, or covenants annexed to an estate, to be granted ? A rent charge, or a rent seek, is a right to demand money of another, but being recognized by law as property, it immediately thereby becomes the subject of a grant. A debt or duty, although evidenced by bond or note, is not the subject of larceny because they are not property. Even bank notes are not the subject of larceny, although payable to bearer. And for the same reason a person cannot have a property in them, they are not the subject of property. I speak of these things at common law, that is in their nature; the acts of our legislature have lately made it larceny to steal most of them. In addition to the above, there has been, for nearly fifty years, an exposition of this section in conformity to the above principles. The jurisdiction has been much enlarged, but not extended to controversies respecting property to the amount of one cent. I concur in the argument of the defendant’s counsel, that the word ought in this and other sections of the instrument, should be understood imperatively. It is sufficient for the creature to know the will of the creator. Obedience is then a duty without an express command.

The other Judges concurring in this view of the clause referred to,

Judgment axtiumed.