"The trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever." (Const. of 1846, art. 1, § 2.)
This means the common law jury of twelve men. It had been usual from 1824 to 1846 to allow a defendant on a trial, even for misdemeanors, to elect whether he would be tried by such a jury or not, provided he gave bail within twenty-four hours after being required by the magistrate to do so. If he omitted to give bail, he was to be tried by the justices at special sessions, but then by a jury of six men.
Toynbee was brought before the justice on the 17th of July, and on the same day objected to be tried by the special sessions, and offered to give bail to appear at the next court having criminal jurisdiction. This the justice refused. He thus refused him a right of trial by a common law jury in a case in which it had been used before 1846. That was contrary to the constitution.
At the general term, in another district, it was held that this provision in the constitution was copied from the constitution of 1778 and of 1821, and that the word "heretofore" means the same as in those constitutions, on the principle that revised laws although changed in their phraseology are not generally held to be changed in their meaning, and that before 1824 trial by jury did not exist as a right in such cases. This mode of interpreting a constitution should not be adopted, when not in favor of but against liberty, and when the terms used naturally have a *Page 459 different meaning, and there was a sufficient reason for the use of that different meaning.
The judgment in favor of the defendant should be affirmed.