(dissenting.)(a) The ground on which the appellant sought to reverse the judgment of the justice is, that the action is what was known at common law as an action of replevin, and that such an action, prior to the adoption of the constitution of 1846, was triable only in a court of record, by a jury of twelve men; and that as section 2 of article 1 of the constitution, declares that fi trial by jury, in all eases in which it has been heretofore used, shall remain inviolate forever,” it was not within the power of the legislature to deprive parties in such actions of the right to a trial. by a jury of twelve men duly summoned and impanneled to try such actions.
The first question for consideration is, whether the pro- ' ceeding designated in the Code of Procedure as a claim for the delivery of personal property of which justices of the peace have jurisdiction, is what was known at the time of the adoption of the constitution of 1846, as an action of replevin.
The Revised Statutes abolished the action of detinue, and . the action of replevin was extended to cases in which detinue had theretofore been the appropriate remedy. The claim and delivery provided for in the Code could not have been a substitute for detinue, or any other form of action other than replevin, as it was the only action known to the law for the capture and return to the claimant of property illegally taken or illegally detained.
The modes of procedure in the action of replevin, and in that of claim and delivery, are substantially the same, so that, although the names and forms of actions have been abolished, and the mode of procedure somewhat changed, the action given by the Code is in form and effect an action of replevin, of which, at the adoption of the present constitution, a court of record,, only, had jurisdiction. It is therefore one of the eases in which a jury trial had there*33tofore, (that is, prior to the adoption of the constitution of 1846,) been used.
Jurisdiction over actions for the claim and delivery of personal property was not conferred on justices of the peace until 1860.
If the clause of the constitution above cited secured to parties in actions of replevin a trial by a jury of twelve men, parties to actions for the claim and delivery of personal property are entitled also to a jury of the same number. The question then is, does the clause of the constitution under consideration secure to parties to actions which were triable, at its adoption, by a jury of twelve men, a trial by a jury of that number ?
Before attempting to construe the clause of the constitution that secures to the citizen the right of a trial by jury, it is necessary to ascertain the meaning of the word “jury,” as used by the framers of the constitution. The word has been in' use for centuries, and its meaning as well understood as any in the language. In its broadest sense, it meant a body of men impanneled to determine some question of fact; and in this sense embraces the grand assizes and coroner’s jury, as well as the petit jury. Each of them was required to be composed of a definite number of men, so that the name of the jury indicated the number of which it should be composed. The.term petit jury, always used in the trial of issues in civil and criminal cases, meant a jury of twelve men, and never of a greater or less number in criminal cases; but in civil cases, the parties might agree upon a different number.
Bouvier, in his Law Dictionary, title Jury, says, that the word “jury,” without addition or prefix, imports a body of twelve men in a court of justice, is as well settled as any proposition can be. Bacon, J., in Clark v. The City of Utica, (18 Barb. 451,) says: “When a word, by common usage, has acquired a popular signification, it shall be understood in that sense, unless its meaning is controlled by the eon-*34text in which it is found, or the circumstances under which it is used.” When, therefore, the constitution speaks of a jury, what do we obviously and naturally understand by the language ? Precisely what the word imported, and for many years anterior it had been both legally and popularly understood to mean.
In The People v. Kennedy, (2 Park. Cr. Rep. 312 to 317,) Parker, J., in answer to the inquiry, what is meant by the expression “ trial hy jury” says: “ Does it mean a common law jury of twelve men or a jury of six men, as provided in a trial at the special sessions ? I think there can be no doubt on that point. If the legislature may reduce a jury in number to six men, they have the same'right to reduce it to one, and thus make a jury of one a compliance with the requirement of the constitution.”
It is said in 2 Kent’s Com. 13, note b, that the phrase in the"constitution, “the judgment of his peers,” means a trial by a jury of twelve men, according to the course of the common law. See also, 4 Ohio, 177; 2 Wisconsin, 22 ; 2 id. 219.)
The word jury must have the same meaning when used in the constitution that it has when used in a statute, unless there is something in the nature of the clause, or in the context, showing that it is used in a different sense. The seventh section of the first article of the constitution provides that when private property shall be taken for public use, the compensation to be made therefor shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record.
The charter of the Hudson Eiver Eailroad Company provided for drawing from the grand jury box the names of twelve persons to serve as a jury of appraisers, to appraise the. damages of persons whose lands were taken for the construction of the road. The appraisal was required to be signed by a majority of the said jurors. The Court of Appeals, in Cruger v. The Hudson River R. R. Co., *35(2 Kern. 190,) held the provision of the charter, as to the appraisal of damages, constitutional, notwithstanding it does not require the whole number to concur in the appraisal, solely on the ground that in several acts passed before the adoption of the constitution of 1846, juries consisting of less than twelve men, and appraisals by less than the whole number of jurors drawn had been passed, and hence the court inferred that the second section of the first article of the constitution must be held to permit the appraisal of damages by such juries.
Johnson, J., says: “ If that term ‘jury,’had not acquired a peculiar meaning, when applied to this class of cases, by prior legislative usage, and had not been continually in use in that special sense up to the time of the convention by which the constitution was formed, I should, without any doubt resting on my mind, b'e of opinion that the peculiar tribunal provided by this act was not a jury.” That term, when spoken" of in connection with trial by jury in the second section of the same article, imports a jury of twelve men, whose verdict is to be unanimous.
The reasons why the number of the petit jury is twelve, are thus quaintly given by Giles Duncomb of the Inner Temple, in a book entitled “Trials by Pais, or the law of England concerning juries b jnisiprius,” &c. printed inDublin in 1793, and are as probable as any. They are such as would be likely to have been controlling at the time of the introduction of the jury system, and why the number of twelve should have been adhered to with such unwavering tenacity. At page 93, he says: “How for the quales, and then you see the number must be twelve, by the common law. For quality, (liberos and legales homines,) and first of their number, twelve, and this number is no less esteemed by our own law than by holy writ. If the twelve apostles, on their twelve thrones must try us in our eternal state, good reason hath the law to appoint the number of twelve to try us in our temporal. The tribes of Israel were *36twelve, the patriarch’s were twelve, and Solomon’s officers were twelve.
Therefore, not only matters of fact were tried by twelve, but in ancient time twelve judges were to try matters of law in the exchequer chamber, 'and there were twelve counsellors of State for matters of State, and he that wageth his law must have twelve others with him who believe he says true. And the law is so precise in this number of twelve, that if the trial be by more or less, it is a mistrial.”
So tenaciously has the jury of twelve men been adhered to, that the Court of Appeals, in the case of Cancemi v. The People, (18 N. Y. 128, 136,) reversed the conviction of the plaintiff in error by a jury of eleven men, by which number the prisoner consented, in open court, to be tried. It was held that he could hot waive a trial by a jury of twelve men.
If the word jury means a jury of twelve men, the section of the constitution now under consideration must be construed as if it read, “the trial by a jury of twelve men in all cases in which it has been heretofore used, shall remain inviolate forever.” If the section was thus worded, no one would claim that the legislature could reduce or increase the number. That that word was used in this sense by the framers of the constitution, and that such is the meaning given to it by the courts, is, it seems to me, conclusively established. If the framers of the constitution had been of the opinion that a jury might consist of any number the legislature should prescribe, why were damages required, to be appraised when land was taken for public use, by a jury or three commissioners ? Why were not the three commissioners called a jury? Iam not aware that any judge or court has ever suggested a doubt as to the meaning of the word “ cases,” used in the second section. It is synonymous with “ actions and proceedings.” It embraces both civil and criminal proceedings.
*37If the authorities I have cited, and the reasons that I have given, establish the meaning of the words “jury” and “cases” to be what I claim it to be, it logically follows that under the second section of the first article of the constitution the right of trial by a jury of twelve men is guarantied to parties to actions o.f replevin, as at the time of the adoption of the constitution, that class of actions were triable only in a court of record, by such a jury.
If there was any doubt remaining, as to the construction to be given to the constitutional provision, it is removed by the decision of the Court of Appeals, in Toynbee v. The People, (3 Kern. 378:) The facts in that case are as follows : Section 5 of the law known as the prohibitory law, authorized justices of"the peace to issue process and to hear and determine charges, and to punish for all offenses arising under said act; and they were authorized to hold .courts of special sessions for the trial of such offenses; and they were to proceed and try as soon as practicable. At the time of joining issue, but at no other time, either party might demand a trial by jury. If one was demanded, the justice was required to issue a venire, to summon twelve men to serve as jurors, and from them a jury o'f six were to be impanneled. Toynbee was arrested for selling liquor without licence, in the "city of Brooklyn,, and taken before a justice. He then offered bail for his appearance at the next court of criminal jurisdiction in said county. Bail was refused, and he was required to plead to the complaint, which he did, and thereupon the justice proceeded to the trial, and found him guilty of the offense charged, and fined him $50. The defendant appealed, to the general term in the second district, and that court reversed the judgment. The Court of Appeals affirmed the judgment of the general term, six judges voting for affirmance, and two against it. Johnson, J., referring to the fifth section of the act under which Toynbee was arrested, says this act provides that offenses prosecuted" personally against the *38offender, and for which he is punishable by fine, by forfeiture, and sometimes by imprisonment, shall be tried by any one of numerous inferior magistrates, either without a jury at all or by a jury of six men, with very peculiar qualifications. This is not what the constitution means by a jury trial. That must be, within the terms of' the constitution, a jury of twelve men.
' Hubbard, J., says that it was error for the justice to refuse to receive bail. “I am well satisfied that the defendant had a constitutional right to be tried by a common law jury of twelve men, and to that end he should have been permitted to give bail to appear before a tribunal where such a jury could be obtained.”
Mitchell, J., citing the clause of the constitution under consideration, says-: “This means the common law jury of twelve men.” Denio, J., says : “ The fair, and I think, the necessary construction of that part of the act' which subjects an alleged offender to trial before a court of special sessions, deprives him of the right of trial by jury.” The learned judge means, he was deprived of the right of trial by a jury of twelve men, which is the jury contemplated by the constitution; otherwise the statement would be erroneous, as the act does provide for trial by a jury of six men.
In order to place the views of the court beyond cavil, the judges stated their conclusions in three distinct propositions, the third of which is in these words: “ 3d. That the criminal proceeding in a court of special sessions, authorized by the said act, is unconstitutional and void, because the accused is thereby deprived of the right of a trial by jury guarantied by the constitution.”
This case has never been overruled, or even questioned, and until it is overruled, we must obey it; and this can only be done, it seems to me, in this case, by declaring unconstitutional a law that violates not only the spirit but *39the letter of a clause of the constitution more vitally important to the people than any other contained in it.
The cases of The People v. Kennedy, (2 Park. Cr. Pep. 312,) and The People v. Carroll, (3 id. 22,) are directly in point upon the question, and are entitled to consideration in the decision of this question; The position most commonly assumed in opposition' to the construction I have given to the clause of the constitution we are considering (and which must be established before the law of 1860, giving jurisdiction to justices’ courts over actions of replevin, can be held to be constitutional,) is that the term jury does not mean twelve men, but any number of men the legislature may see fit to designate.
If the legislature may, in its discretion, prescribe any number, it may prescribe three, or two, or even one. Who is to say that one would not satisfy the constitutional requirement ? If it is said that the word “jury ” implies a number greater than one, then two may be • prescribed. Would the right to a trial by jury be worth the paper on which the constitutional provision is written ? Sever, in the history of this State, or of England, has the legislature attempted to reduce the number of jurors in a court of record below twelve ; nor has it ever permitted, á verdict to be rendered by less than the whole number, unless upon the express consent of the parties in civil actions.
The people have a marvelous attachment to the trial by jury. They consider it as oné of the greatest safeguards to liberty, and cling to it as such. They have been taught that although a jury might be occasionally corrupted, and bring to the examination of questions submitted, a less measure of learning and intelligence than men learned in the law, and might be misled, occasionally, by passion or prejudice, it, upon the whole, was an institution sacred by reason of its antiquity, endeared to them by the patriotic resistance it had frequently made against arbitrary *40power, and in protecting the innocent against oppression and injustice.
This popular attachment to the jury as known to the . common law ought not to be disregarded in the construction of the provision of the fundamental law designed and understood by the people to secure it to them, not in name only, but in substance.
The only cases in this court in which the constitutional provision under consideration has been considered are Dawson v. Horan, (51 Barb. 459,) and The People ex rel. Metropolitan Board of Health v. Lane, (6 Abb. N. S. 115.) In Dawson v. Horan, the question was not before the court. The defendant appeared in the justice’s court and made no objection to the jurisdiction. The issues were tried by the justice without a jury, and under .those circumstances a jury trial was waived. The court, at general term, do not put their decisions upon that ground, but hold that the law which enlarged the jurisdiction of the justices of Bochester, so as to enable them to try cases alone, or with a jury of six men, theretofore triable in a court of record only by a jury of twelve men, was constitutional.
I regret that the learned judge who gave the opinion of this court in that case, did not give his reasons for the conclusion at which he and his brethren arrived. The case, as it is reported, seems to me to be directly in conflict with the case in the Court of Appeals, above cited, and I am therefore constrained .to decline to be bound by it. The learned judge does.not allude to the case of Toynbee. Had he done so, he would doubless have told us wherein the two cases were distinguishable, and why he declined to follow that case.
Although I entertain the highest respect for the learned court that decided the case cited, I cannot yield to it as authority, so long as the case of Toynbee stands unreversed by the court that decided it.
In the case of The People v. Lane, the facts were as fol*41lows : There were two actions commenced against Lane, who was one of the district justices, of Hew. York city. One by the relators against Ranney, a physician, for a penalty of $250,- for not making a report of deaths, &c. The other was by the same plaintiff against one Kerr, for penalties amounting to $100, for violation of ordinances relating to tenement houses. On the return day of the summons, Ranney appeared and demanded a trial by jury, and paid the fees required to be paid to entitle him thereto. The further hearing was adjourned, and on the adjourned day he demanded a trial by a jury of twelve men. Kerr, on the joining of the issue, demanded a trial by a. jury of twelve men, and as the justice had no power to impannel such a jury, he refused to try the case, and the relators thereupon applied for a mandamus to compel him to proceed and try them. The penalties sued for in the case of Kerr amounted to $100 only. The jurisdiction of the justice’s court in the city of Hew York had been extended prior to 1846, so as to authorize recoveries therein, in actions for penalties, to $100. By the laws regulating those courts, juries of six men only could be impanneled.
Whether, therefore, the law extending the jurisdiction, in actions for penalties to $100, to be tried by a jury of six men, Was or was not constitutional, when passed, it became constitutional on the adoption of the constitution of 1846. Trial by jury, as it had theretofore been used, whether under constitutional or unconstitutional laws, was established and was to remain inviolate forever.
In the case of Ranney the jurisdiction of the-justice was extended, in actions for penalties, to $250, subsequent to the adoption of the constitution of 1846. The learned judge granted the mandamus as to that case, on two grounds: 1st. Because Ranney did not, at the time of joining issue, demand a trial by a jury of twelve men; and, 2d. That as by the statute relating to the justices’ courts in the city of Hew York, the defendant may give *42an undertaking that he will pay the plaintiff any judg ment that may be recovered against him in the court of common pleas, and remove, the trial into that court where he can have a trial' by a common law jury, the constitutional provision is not violated.
I cannot agree with the learned judge in -either of the grounds on which he sustained the law giving jurisdiction to justices in actions for penalties to the amount of $250. If, by the constitution, he was entitled to be tried by a jury of twelve men, we must assume that it was'that jury' he demanded. Had he remained silent, and not demanded a jury trial at the time of joining issue, he would have been held to have waived it. And I cannot perceive that the situation of the* parties was changed in the slightest degree by his omission to specify the number of persons who should compose the jury.
The second ground for sustaining the constitutionality of the law under which the justice was acting, is still less satisfactory than the first. The proposition of the judge comes to this: That if the defendant will secure to the plaintiff the ■ payment of any judgment he may recover, he may have a trial-by a jury of twelve men, otherwise not. In. other words, a defendant may have the benefit of a constitutional provision if he will pay for it. Should the legislature see fit to authorize justifies of the peace to try and determine actions of ejectment by a jury of six men, which have always been tried by a common, law jury, would any court sustain the law because it contained the provision that the defendant might remove the cause' into the Supreme or county court, ou giving an undertaking to surrender possession and pay costs if judgment should pass against him ? It seems to' me not.
One of the counsel in the case of The People v. Lane, suggests the- only ground on which the laws extending the jurisdiction of inferior courts can be even colorably sustained; and this is, to construe the word “cases,” in *43the constitution, as equivalent to “ forms of action,” so that the legislature would be.at liberty to extend the jurisdiction to any amount, in the forms of action of which they had jurisdiction at the time of the adoption of the constitution.
From the creation of courts of justices of the peace, they have had jurisdiction in actions of assumpsit, covenant, trespass, and trespass on the case. The • amount which could be recovered was, at first, $25, and from time to time increased, until it is now $200. Under the construction suggestéd, it may be increased to any amount, but it can be extended to no form of action not previously within the jurisdiction of such courts. , It is not necessary for me to enter upon an examination of the propriety of such a construction of the constitutional provision, as it does not bear on the question before us.
I entertain no doubt but that the law giving jurisdiction to justices of the peace in actions of replevin, is unconstitutional. I am therefore in favor of reversing the judgments of the county court and of the justice.
One objection to the construction we have given to the constitutional provision is, that it would prevent altogether the legislature from extending the jurisdiction of inferior courts, and would annul all judgments rendered in .such courts, in all cases in which the jurisdiction of such courts has been enlarged. The answer to this and all similar objections is, the constitution is the supreme law. The only security for the citizen against legislative, executive or judicial oppression, is in rigidly confining each of these great department's within the limits prescribed by the organic law. If they disregard its provisions, the acts done and proceedings had in violation of it must be annulled, and thereby remove all inducement to violate it.
I am aware that the legislature, under each of the constitutions of the State, has extended the jurisdiction of inferior courts, to cases not within it at the time such con*44stitutions were adopted, without providing, in some cases, a jury of any larger number than had theretofore been authorized by law in such courts, and no objections seem to have been taken in the courts to such legislation. But the legislature was not always forgetful of the constitutional guaranty. .In the act passed in 1818, (chapter 94 of the laws of that year,) extending the jurisdiction of justices of the peace to $50, either party might demand a trial by a jury of twelve men, when the sum demanded exceeded $25, and provision was made for such a j ury. The same provision is contained in chapter 238 of the laws of 1834. In the city of Hew York the justices’ courts had the sanje power, and suitors were entitled to the same right. A more unequivocal concession than the extension of the jurisdiction, without the provision for a jury of twelve men, could not be made, and the regret is, that subsequent legislatures did not also yield to the manifest intention of the framers of the constitution, in extending the jurisdiction of inferior courts, and thereby relieve the people from the expense and loss which must be incurred in consequence of their disregarding it.
But the frequent and long continued violation of a plain provision of the constitution cannot alter the language or meaning of the instrument. If the meaning is obscure, or construction doubtful, a long continued acquiescence in a particular construction should be followed, although it might not be the best, or the most satisfactory. But this- consideration cannot properly or justly be acted upon when 'the constitution admits of but one meaning and construction. If the number of violations of a constitutional provision is to prevent the courts from declaring them void, a premium is offered for unconstitutional legislation.
It is the duty of the courts, when called upon to pass upon the validity of acts of the legislature, to take into consideration the fact, if it exists, that similar acts have *45been passed, through a series of years, without objection, and therefore the same construction of the constitution should be adopted and followed.
It is their duty, further, to take .into consideration the consequences that will probably result to the citizens by declaring such acts unconstitutional and void. But if, after all these things are considered, the acts are found to be clearly and manifestly in violation of it, they must be annulled, whatever may be the results.
Actions of replevin being triable only "by a jury of twelve men, at the time of the adoption of the constitution of 1846, must, by virtue of the provision referred to, continue to be tried by a jury consisting of that number.
It is said that as the power of the legislature to enlarge the jurisdiction of justices of the "peace is unlimited, the act of 1860, giving them jurisdiction of actions for the claim and delivery of property, authorized them to issue process and hear and determine all such actions, and*this jurisdiction was not lost because they could not impannel a jury of twelve" men. The only consequence was that the justice must try by such a jury as the court ‘could impannel. It would follow from this reasoning, that if the jurisdiction had been conferred upon a court that had no power to impannel a jury, and the parties must therefore try-without one, of what use is the provision of the constitution which secures the right to a trial by jury in all cases in which it had been theretofore used ? Even the shadow of the right would not be left, under such a construction. If when the parties appeared before the justice to try the issue joined in such an action, neither party demand a jury, the justice may proceed and try the issues and render judgment. The neglect to demand a trial by jury is a waiver of the right.
Or, if a jury of twelve men is not demanded,' the justice may proceed and try the issue ; but if such a jury *46is demanded, the power of'the justice to proceed in the case is at an end, and the plaintiff must bring his action in a court of record.
[Fourth Department, General Term, at Rochester, March 5, 1872.Mullun, P. J., and Johnson and Talcott, Justices.]
The omission of the legislature to provide for a common law jury, .for the trial of this class of actions, is fatal to the jurisdiction of the justice to try after demand for ' the jury to which the parties, by the constitution, are entitled.
The judgment should he reversed.
Judgment affirmed.
There were two cases involving precisely the same question; but the judgments appealed from.were different. This opinion applies to both pases,