(dissenting), said:
I dissent from the opinion of the majority of the court delivered in this case for the following reasons :
The trial of the accused Avas under section 4106 of the Code of Virginia, which expressly proAÚdes that such an offence — ■ “ keeping a house of ill-fame” — shall be tried by a justice of peace, Avho is given jurisdiction to that end by the said section.
*625The plaintiff in error, Mary Miller, was accordingly tried by a justice of the peace having cognizance of the said offence, and convicted and fined $100 and sentenced to imprisonment in the county jail for six months. She appealed therefrom, and the justice endorsed the said appeal on the warrant. In the county court of the county having cognizance of the offence, to which the appeal was taken, the defendant having pleaded not guilty, a jury was empanneled, and she.was tried as if she had been indicted in said court, where, by the verdict of the jury, she was found guilty of keeping a house of ill-fame, .resorted to for purposes of prostitution and lewdness, and her •punishment fixed at one month and twenty d.ays in jail, and she was fined $17. The said plaintiff then moved the court to set aside the said verdict as contrary to the law and the evidence; which motion the court overruled, and rendered judgment in accordance therewith; and having moved the court to quash the warrant and judgment of the justice, upon the ground that the extent of the magistrate’s jurisdiction was that of an examining justice, and that the judgment was corain non judice, and null and void, and this motion being overruled, and the defendant having duly excepted on that ground, she thereupon applied for a writ of error and supersedeas to the circuit court, which was granted. The circuit court, at the .hearing in that court, affirmed the judment pro forma, as is stated by the said court. Whereupon the ease was brought here by writ of error and supersedeas, which was awarded by one of the judges of this court. There is no insistance in this court that the evidence did not warrant the verdict of the jury, which it plainly did. But the contention is that the constitutional right of trial by jury of the plaintiff .in error has been denied. It cannot be alleged that there was no trial by jury, that being admitted, and the first error assigned is that the trial court erred in not setting aside the verdict of the jury as contrary to the law and the evidence.
But the complaint is that, although there was a trial by jury *626in the county court, as if the accused had been indicted in that court, yet there* had been before that a trial before a justice of the peace, who had convicted the said accused, and sentenced her to jail for sis months and to pay a fine of §100. And notwithstanding this judgment of the justice had been disregarded by the jury, and a milder judgment rendered of imprisonment for one month and twenty days, and to pay a fine of §17, yet she had been prejudiced as to her constitutional right to a trial by jury by having had this judgment rendered against her, which had been annulled, as stated. And this contention has been sustained by the opinion of the majority; but I am of opinion that, whether this offence be of the petty misdemeanor class to which the trial by jury attaches or not (a question which it is not necessary to consider in this ease), there ■ has been no denial of the right to a trial by jury in this case, nor has that right been in any way nor in any degree abridged.
The record shows that the trial by jury in this case has been recognized, and not denied, but fully enjoyed in the mode prescribed by the law-making power, and that the accused has been tried by a jury in the same manner as if she had been indicted in the court where the trial was had.. The Constitution of Virginia (the Constitution of the United States does not concern this question) does not provide in what court nor how this trial by jury shall be had and enjoyed. All that is left to the legislature, which, by section 4107, has provided for an appeal of right upon conviction under the section preceding section 4106, and, by section 4108, provides that “ the appeal shall be tried without formal pleadings in writing, and the accused shall be entitled to trial by jury in the same manner as if he had been indicted for the offence in said court.”
It is contended successfully here, however, that, although there was a trial by jury in the said county court having jurisdiction of the offence by law in the same manner as if the accused had been indicted in that court, yet the trial by jury was not in the first'instance, and only after the said prelimina*627ríes, and that the trial by jury guaranteed by our Constitution was not therefore enjoyed. By our Constitution — Article V, section 1 — “ the legislative power of this commonwealth shall lie vested in a general assembly, which shall consist of a senate and house of delegates”; and whatever legislation shall be enacted by that body not in conflict until the constitution is valid and binding, whether the constitution shall have expressly granted the power to so enact or not, as our legislature does not exercise granted powers, but is the supreme law-making power, limited only by what is forbidden in the constitution. The method, manner, the procedure, by which jury trials shall he held depend upon the directions and prescriptions of the legislature. The preliminaries hare never been held to abridge but to maintain the liberties of the citizen, and they are intended to the latter end.
A casual inspection of our legislation in the past will show that there never has been a time in the history of Virginia when there were no preliminaries. We have had committing justices, who sent on for examination before the examining-court of magistrates, whose duty ivas to acquit — discharge— unless there was probable cause to believe the accused should be charged with the offence. If the examining court found that there ivas probable cause, the accused ivas sent on to the circuit court, and there tried by a jury; if discharged by the examining court on the merits, the prosecution ivas ended and barred; if acquitted by the jury, this ivas the effect. If, when the jury came to the trial of the accused, they had before them the judgment of the justices who had refused to discharge, but had sent on for trial, was the accused denied the untrammelled right to trial by jury ? Hot more so than under the present law. The magistrate may now discharge or convict, not convict finally by judgment irreversible, except for error, and not final, however right, unless the accused consent that it shall be so, and waive his right to trial by jury, and decline to ask for it, for this is the effect of the appeal of right. If he desires *628that the judgment shall be overturned, it. is done, and he goes to the jury, to be tried by that body as if he had been indicted in the court which empanneled them, and yet we are told that his right to a trial by jury has been impaired, and that the law of Virginia is unconstitutional.
This is a question as to the mode of procedure in the state courts, and we do not look therefore to the Constitution of the United States upon such a question, except so far as the question of due process of law is concerned, it being there provided (amend. Art. XIV, § 1): “ Not shall any state deprive any person of life, liberty or property without due process of law.” And this requirement of the constitution is met, if the trial is had according to the settled course of judicial proceedings. Due process of law is process due according to the law of the land. This process in the states is regulated by the law of the state. Waite C. J., in Walker v. Sauvinet, 92 U. S. 90, 93, citing Murray v. Hoboken, L. & I. Co. 18 How. 281. The provision as to jury trials in the United States Constitution relate to trials in Federal courts only. Id. and Edwards v. Elliott, 21 Wall. 557. The states are left to regulate trials in their own courts in their own way. A trial by jury in suits at common law pending in the state courts is not, therefore, a privilege or immunity of national citizenship. A state cannot deprive a citizen of his property (and a fortiori of his life or liberty) without, due process of law; but this does not necessarily imply that all trials in the state courts affecting the property of persons must be by jury. Opinion of Waite, G. J., supra.
The question here is, however, not whether the Federal Constitution has been violated, but whether the act of assembly, under consideration, is in violation of the Virginia Constitution.
Mr. Bishop, in his work on Criminal Procedure, says: “ This constitutional right must necessarily, in some degree, be under legislative regulation and control, though the substance of it cannot be impaired. Thus: Appeal to jury. — Providing preliminary steps to a jury trial is not unconstitutional, as if a *629statute directs a trial without jury, and then permits to convicted defendants an unobstructed appeal to a court proceeding de novo by jury, it does not violate the constitution by erecting this vestibule to pass through to the jury beyond.” Citing 25 Conn., 278; 7 Md., 500 ; 1 Binn., 416; Biddle v. Com’th, 13 S. & R. 405, &c.
If, on the other hand, one does not choose to appeal, or to prosecute his appeal after it is taken, he waives his right to a jury trial. Com’th v. Whitney, 108 Mass. 5; People v. Goodwin, 5 Wend. 251; The State v. Larger, 45 Miss. 510.
This is my opinion, and I might cite authorities without practical limit to sustain it, and I have not. found, nor do I think there is, an authority cited which applies, and is to the contrary.
I therefore dissent from the opinion of the majority of the court. The case having been heard before four judges only, it ought to be reheard before a full court., and upon fuller argument.
Addendum :
The case has been reheard before a full court and upon full argument, and the opinion of the majority of the court remains unchanged. This Virginia statute is again with emphasis declared unconstitutional, null and void for such repugnancy.
With all proper deference for the views of others, I am of opinion that the act- in question is violative of no provision of. the constitution. My views on the question have been strengthened by a further consideration and by the able argument of the learned attorney-general of the commonwealth, which appears to me to be conclusive of the question involved. From which it is made clear that the text writers and the decisions of the courts of last resort of the states, are in accord on the question. I cited in my dissenting opinion, at the first-hearing, Mr. Bishop, in his work on Criminal Procedure, Vol. 1, § 893. I now add: 1 Dillon on Corp., § 367, saying “ it is how*630ever the prevailing doctrine that although the charge or matter in the municipal or local courts be one in respect of ‘which the party is entitled to trial by jury, yet if an appeal clogged by no unreasonable restrictions, he can have such trial as matter of right in the appellate court, this is sufficient and his constitutional right to a jury trial is not invaded by the summary proceeding in the first instance.” Bishop on Stat. Crim., § 86; Johnson’s Case, Greenleaf’s Report, 230. It is said in a recent work of great value, and often quoted by the courts, that “the fact that the party is not able to obtain it (trial by jury) in the inferior court is not a deprivation of the right of trial by jury, if provision is made whereby it can be secured by an appeal by a reasonable simp>le procedure.” Am. and Eng. Enc. of Law, Vol. IV, 812, 813, citing Wing v. Astoria, 13 Oregon, 538; Moon v. State, 22 Tex., app. 538. See, also, Shafer v. Mumma, 17 Md. 331; State v. Maxey, 1 McMullen (S. C.), 501; Byers v. Commonwealth, 42 Pa. St. 89; Beers v. Beers, 4 Conn. 535. See opinion of Ch. J. Shaw, Jones v. Robbins, 8 Gray (Mass.); Mounsville v. Fountain, 27 W. Va. 205. Opinion of Green J.
This question is not of first impression in this court, as an inspection of the decisions will show. In Read’s Case, 24 Gratt. 618, there -was a conviction before a justice for petit larceny, and the case was appealed of right, and a trial was had de novo in the county court before a jury, and then accused was convicted, and upon appeal here the conviction was sustained.
In Thomas’ Case, 22 Gratt., the jurisdiction of the mayor of Lynchburg to try and convict for petit larceny, under the act to extend the jurisdiction of police justices and justices of the peace, approved March 30, 1871, was sustained in this court.
In Wolverton v. Commonwealth, 75 Va., opinion by Judge Burks, the jurisdiction of a magistrate to try and convict under the statute was sustained, the Judge saying: “ It is true the justice had jurisdiction to try him for the offence, and if he found him guilty to punish him unless he appealed to the *631comity court, which he might do.” In that case the justice had examined and sent on, as he had also the right to do, under that statute.
In Harrison v. Commonwealth, 81 Va. 494, in this court it was said: “ The accused was entitled to an appeal as of right from the judgment of the justice to the comity court without assigning errors.” The appeal gave the court jurisdiction not merely to review the judgment of the justice upon the ground of error, but original jurisdiction to try the cause upon it merits, as if the justice had passed no judgment upon it.” Citing Reid’s Case, supra. The court was unanimous in each of the foregoing eases, so that before this - case this court appears to to have been in accord with the text-writers on the subject and the prevailing line of decisions in other states. The departure hero rests upon the case of Callan v. Wilson, 127 U. S. Rep. 540. That case arises under the Constitution of the United States, article 3 — “ the trial of all crimes, except in eases of impeachment, shall be by jury ” — and was upon a conviction by the police court of the District of Columbia, and as is conceded is only persuasive and not authority in the state courts upon a question of procedure, as I have already said. The learned Justice in that case says : “ The contention of the appellant is that the offence with which he is charged is a crime within the meaning of the third article of the constitution, and that he was entitled to be tried by a jury; that his trial by the police court without a jury was not due process of law within the meaning of the fifth amendment, and that the prosecution was a criminal prosecution, and under the sixth amendment he was entitled to a trial by jury.” “ The contention of the government is that the constitution does not require that the right of trial by jury shall be secured to the people of the District of Columbia.” What this due process is, we have stated from Waite, C. J., in Walker v. Saurinet, supra; (92 U. S. R. 90). Sections 1073 and 773 of the Eevised Statutes of the District of Columbia contain provisions similar although not identical with our *632statute. It is authority upon this subject only in Federal courts, as is conceded. It must be admitted that some preliminaries, as I have said, are indispensable in order to render jury-trials available. In the first instance if admitted in the fullest sense, and if the liberty of the accused cannot be taken away temporarily without the intervention of a jury, the reasoning-will apply with equal force to arrests, examinations, commitment, and all other preliminaries.
I think the trial by jury is not invaded by the statute in question, and that the same is constitutional, and I therefore dissent from the opinion which annuls it as unconstitutional.
Judgment reversed.