It is declared by the legislature, in the act of the 16th of June, 1836, that in case any dwelling-house or other building, &c., shall be injured or destroyed in the city and county of Philadelphia, in consequence of any mob or riots, &c., the owner or his agent may apply, if in the county, to the Court of Quarter Sessions, and if in the city, to the Mayor’s Court, who shall thereupon appoint six disinterested persons, &e., to ascertain and report the amount of the loss, and also whether the owner had any immediate or active participation in the mob or riot. And a report being made and confirmed by the court, on examination of the case in suit, it was ordered that it be certified to the county commissioners, who shall forthwith draw their warrant on the treasurer for the amount so awarded.
(His honom’ then stated the proceedings.)
First, it is contended that the thirty-sixth section of the act of the 16th of June, 1836, is unconstitutional and void. It is urged that the right of trial in court by a jury of tioelve men, is secured to the citizens of Pennsylvania by the common law. That it is a reserved judicial right of the people, guarantied by the Constitution *208of the United States, and of this state. And that this right has been violated by substituting in lieu of a trial in court by a jury of twelve men, an inquest of six men out of court. In support of this view of the case, reliance is had on the ninth article, sixth section of the constitution of Pennsylvania, which declares, that the “ trial by jury shall be as heretofore, and the right thereof remain inviolate.” But the answer to these suggestions is, that the article referred to relates-to the trial of issues of feet in civil and criminal cases in courts of justice. It contains nothing expressed or implied which inhibits the legislature from ascertaining damages, as before allowed, by commission, on the award or inquest of a less number than twelve men out of court. The right of trial by jury, which is justly esteemed the palladium of our liberties, especially in criminal cases, must be preserved inviolate, but this claim has never been so construed as to prohibit an alteration in the manner of choosing or summoning jurors, or in making any other change whereby, in the judgment of the legislature, it is made a more effectual instrument for the advancement of justice, and the preservation of our rights. But this would be the effect if construed according to the letter and not the spirit. Whether the legislature would have power, under the constitution, to alter the number of jurors on trial in court, or dispense with unanimity in finding their verdict, will be a grave question if it should ever arise, but which it is unnecessary now to decide. The constitution does not say, that in all cases where the facts have heretofore been found by a jury or inquest, they shall continue to be so ascertained. The trial by jury shall be as heretofore, that is, in all civil or criminal cases in court, this mode of trial shall be preserved and remain inviolate. But be this as it may, yet we think this case stands clear of all constitutional difficulty, for this mode of ascertaining damages has been usual with the legislature, both before and after the constitution was adopted, in a great variety of cases, and to such an extent that it would do irreparable mischief now to question it. Thus in case of roads, public and private, commissions of lunacy, and other cases to which reference has been made, and which it is unnecessary particularly to enumerate. Here there is no change in the right of trial by jury, for such a right never existed, and consequently no right is violated. At common law, counties were not liable at all for mischief done by lawless individuals. When a remedy is given for such injuries, it is the creature of statutes, as in the statute of Hue and Cry, and in the act of the 16th June, 1836. With the policy of the act we have nothing to do, although we con*209•eeive there would be no difficulty in showing that' tax-payers have a right to be indemnified for losses occasioned by lawless outrage, whenever- the public are unable or unwilling to protect property. The innocent may, it is true, be compelled to pay for the acts of the guilty. But this effect is not peculiar to the ease, but necessarily results from the structure of society, and the nature of all institutions ; of this many examples could be readily given.
The second exception, that the Court of Criminal Sessions of the city and county of Philadelphia, to which the petition was presented, was illegally constituted, is entirely ruled in Zephon’s case, 8 Watts & Serg. 382. ' The transfer of the jurisdiction of the Court of Oyer and Terminer, &c. to the-Criminal Court, is decided to be constitutional. If the legislature had undertaken to abolish the courts established by the constitution, it would have presented a different question. But this they have not attempted to do; these courts still remain, and all they- have done was to create another court, which they are authorized to do by the express words of the constitution itself. But admitting the force of this argument in the utmost latitude claimed for it, still it does not touch this case, because this is not an Oyer and Terminer but a Mayor’s Court, in whom the power was first vcstéd. This court the legislature had an undoubted right to abolish, and to vest the jurisdiction in such other courts as they may deem right. The Mayor’s Court is not a court recognised in the constitution. ' It existed by virtue of legislative enactments. Although it has common jurisdiction over the same offences, if committed within the limits of the city, yet it cannot be held, with any show of plausibility, that this makes a Court of Quarter Sessions-within the meaning of the constitution. No person heretofore has ever questioned the right of the legislature to abolish the Mayor’s Courts of Philadelphia, Ban-. caster, and Pittsburgh, or supposed it necessary, when a borough was created a city, that such a court was an • indispensable accompaniment. But this would be the result of the argument, that a Mayor’s Court is a Court of Quarter Sessions.
The third exception, that the report of the inquest is illegal, and void, the inquest having been appointed by a court having no power or authority to appoint the same, and that the report was made to a court having no authority to receive the same, is equally untenable. That there is nothing in the first part of the exception has been already shown; nor is there any weight -in the last. The Court of Quarter Sessions for the city and county of Philadelphia, to which the report was made, it sufficiently appears, was *210the constitutional court, and the only one to which it could possibly be made. There is an error of fact in the specification, because there was 'virtually a new petition previous to appointment of the. inquest which assessed the damages. This appears on the amended paper.book. We see, therefore, no semblance of error in the court which appointed the inquest, nor in the manner of their appointment; nor is it objectionable because they state the damage to be done, in the alternative, by a mob or riot. In this they pursue the words of the act. One other objection, under this head; must be noticed; I allude to the repeal of the act. It clearly appears the act of the 16th June was repealed, and this would have presented an insuperable difficulty in the way of the recovery of damages, had it not been for the curative effect of the subsequent act of the 7th April, 1840, which, with that regard to justice which always governs our legislature, when not deceived, restored the 36th section, and all proceedings under it. By the terms of the latter act, all proceedings under the 36th section are to be deemed valid and legal, and are ratified and confirmed as fully and effectually in all respects as if they had never been repealed. That the legislature had the right to pass such an act, cannot be denied, and it is equally clear that they were bound to do so on every principle of equity and justice. The case, therefore, must be considered as if there had been no repealing act, and this removes all the objection and scruple on the third exception, which otherwise, it must be admitted, would have been entitled to great attention.
The remaining exceptions are but repetitions of the first three, and do not require any separate examination. In conclusion, I must observe, that many of the specifications are but matters of form, which, however valid, if taken in the court below, cannot avail the appellant in this court. They must be deemed to be waived, unless assigned in that tribunal, which would have the power to amend.
Proceedings affirmed.