Under the general provisions of the Revised Statutes (2 R. S., 711, § 1) a person charged with assault and battery, on being arrested and brought before a magistrate, had the right to elect whether he would be tried before *23a court of special sessions or give bail to appear and answer at the next criminal court having jurisdiction. It is supposed this right has been taken away, as to all persons arrested in the town of Watervliet, by an act, passed April 2, 1850, regulating the police of that town. (Laws of 1850, 210.) By that act it is provided that whenever any person charged with - any offence specified in section one, article one, title three, chapter two of the fourth part of the Revised Statutes, including assault and battery, shall be brought before a justice of the peace of the town of Watervliet, “it shall be his duty forthwith to hear, try and determine such complaint or prosecution, according to the provisions of said article, &c., whether the person charged with such offence requests to be so tried or not,” &c.
Though the right to give bail is not taken away in express terms, I think the language plainly indicates a design to compel the person accused, against'his choice, tobe tried before the justice as a court of special sessions. The justice is directed to proceed forthwith to try the complaint, though the person charged may not request to be so tried. It does not detract from the force of this language that this is to be done according to the provisions of the Revised Statutes regulating trials before courts of special sessions. The trial is compulsory; in that respect it differs from the general provisions of the Revised Statutes; but the manner and form of trial are to be in accordance with those provisions. The complaint may be tried by the justice or by a jury of six, if the prisoner shall demand it.
Of the policy of that kind of legislation which denies to a person charged with an offence in Watervliet the right to have his' case tried before twelve men in a higher criminal court, after it shall have passed the ordeal of a grand jury (a right enjoyed by all those who may be so fortunate, when arrested, as to be brought before a magistrate on the outer side of the town lines), it may not, perhaps, become me to speak in terms as strongly condemnatory as it deserves. *24Fortunately, there is an ample protection against such unequal and unjust legislation in the constitution of our state, which declares that “ the trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever.” (Const., art. 1, § 2.) By “jury,” in this clause of the constitution, is meant a common law jury of twelve men. Under the Revised Statutes, and at the time of the adoption of our present state constitution, every person charged with having committed an assault and battery had a right to give bail to appear and answer at the next criminal court, and thus to secure a trial by jury in the constitutional sense of the word. No legislation can deprive the citizen of that right. All legislative invasions of it are unconstitional and void. For a more full discussion of this subject I refer to an opinion recently written by me, in giving construction of another statute, in The People v. Kennedy (2 Park. Cr. R., 312.)
The act of 1850, under which the justice acted, is clearly inoperative and void, so far as it takes away from the person charged the right to give bail and to carry his case to the next county court having criminal jurisdiction, and the prisoner must therefore be discharged on giving bail in the sum of $300.