dissenting. I do not dissent from so much of the opinion of the majority of the court as holds that the Legislature may confer a limited criminal jurisdiction upon the Mayor, Recorders and Aldermen, for the punishment of minor crimes and offences. Whether the Legislature can confer the like power upon Justices of the Peace, relative to the punishment of white persons, is not necessary now to determine.
The 124th Article of the Constitution expressly declares, that the Legislature may vest in the Mayor, Recorders, Aldermen and Assistant Aldermen, such criminal jurisdiction as may be necessary for the punishment of minor crimes and of-fences, and as the police and good order of said city may require.
Here, the jurisdiction which may be conferred is not merely that of Justices of the Peace, that is, as conservators of the peace, but it is the judicial power of pronouncing judgment on offenders guilty of minor crimes and offences.
On this point there is no room to doubt. But here arises a question of some difficulty, viz, how are proceedings to be conducted before the Mayor, Recorders and Aldermen ?
This can best be answered by recurring to the abuse or evil which this provision of the Constitution was intended to correct.
It is well known, that prior to the Constitutions of 1845 and 1852, the Recorders of this city were in the habit of exercising a summary jurisdiction over petty offenders, which became almost indispensable to the good government of the city. Yet their sentences and decrees were declared null and the prisoners discharged whenever a writ of habeas corpus was sued out from any higher tribunal.
The Article in question was, without doubt, inserted in the Constitution to enable the Legislature to invest the Mayor, Recorders and Aldermen with this summary power. And as they have never been attended in their jurisdictions with Grand Juries, Petit Juries and District Attorneys, it was doubtless the intention of the convention to vest the power of trial and judgment in them alone upon the first hearing of the cause, without the delay consequent upon more regular proceedings.
It does not, therefore, appear, as I think, that proceedings in these inferior jurisdictions were to be controlled by Art. 103 of the Constitution, which requires an indictment or information, and a trial by jury.
As it was in the power of the Legislature to confer jurisdiction upon the Mayor, Recorders and Aldermen, for the trial of the offence denounced in the Act of 17th of March, 1859, the question then arises, was it unconstitutional to aid them in their deliberations by the assistance of three so called jurymen or additional judges?
The statute provides, that upon the arrest of any party or parties violating the Act, they (the Recorders) together with a jury of three slave-holders summoned by them, shall pass a final verdict and enforce the penalties aforesaid.
No doubt, the Legislature would have power to cause a jury of twelve persons to be summoned before the Recorders for the trial of minor offences; for this *194would be in accordance with the common law and the general provisions of Article 103 of the Constitution.
But could the Legislature confer the power upon a so called jury to be composed of the Recorders and three slave-holders, to try the offence, instead of the Recorder alone or a regular jury of the vicinage ?
If such trial could be supposed to exert a more unfavorable influence upon the fate of the accused than a trial before the Recorder alone, then the law should be declared unconstitutional. For the Constitution has only authorized the Legislature to adopt two modes for the trial of minor offences, viz, by the Recorder, Mayor, Aldermen and Assistant Aldermen, or in the usual manner, to-wit, by “ an impartial jury of the vicinage.” The term “jury of the vicinage” is one well known to the common law, and when used in the Constitution, must be held to mean a body composed of twelve impartial men of the vicinage. See Story on the Constitution, sec. 923 ; 3 Peters, 446 ; 11 How. 437.
Por the trial by jury has been considered of common right, and one of the most sacred safeguards against oppression under the common law. It has always consisted of twelve men, and a verdict of a less number has ever been regarded in the criminal law as of no validity.
Now, if the Legislature has the power to modify this institution, by reducing it from twelve to three men, it may reduce it to one, and make that one the perpetual trier of all issues of fact. In other words, make him the sole judge of the facts. Any attempt, therefore, to reduce the number of jurors in the jury trial, should be viewed by the courts as an attack upon the constitutional rights of the citizen, and should be declared of no effect. 3 Peters, 446.
The three slave-holders, under the Act of 1859, are not therefore a jury as contemplated by the 103d Article of the Constitution.
Neither can their agency in the trial of the case be regarded as favorable to the accused. They arc selected from among slave-holders, in order that they may be more vigilant and firm in punishing the offence of selling liquor to slaves. Their feelings may justly bo supposed to be aroused, if their prejudices are not excited on the questions they have to decide. Hence, their agency in the trial cannot be considered as particularly favorable to the accused; but on the contrary, it may exert an unfavorable influence upon the mind of the Recorder. The defendant may, therefore, justly complain of the mode of trial, and insist that ho shall be tried by the Recorder alone, or if by a jury, that the same shall be an impartial jury of the vicinage, which shall consist of the number known to the common law and the Earners of the Constitution.
It is supposed that, inasmuch as Article 124 of the Constitution is exceptional to Article 103, that therefore the Legislature may adopt any form of jury for the trial of minor offences it shall see fit.
I have just shown, and it is so admitted, that the framers of the Constitution did not contemplate that the Recorders &e. were to be attended by juries at all.
Then, when it conferred jurisdiction on them, it was not intended that it should be shared by others. The court formed of a Recorder and three slave-holders is not the same thing as a court composed of the Recorder alone. Now, it is conceded, that Art. 124 confers upon the Recorders the power to try issues of law and fact in a summary manner. If the Legislature can authorize other persons to assist the Recorders to try issues of fact, why may they not be retained to try issues of law ? There is no difference. If because the Constitution has not ex*195pressly prohibited such assistance in the case of Recorders, why might not this court be assisted in the same way in the trial of issues of fact and law ? It is not expressly prohibited by the Constitution, but every one must see that it is forbidden by necessary intendment. This kind of auxiliary jurisdiction was attempted by the Legislature in reference to the District Court in an Act entitled “ An Act to provide for the trial of recused cases out of the city of New Orleans.”
In the case of the State v. The Judge of the Sixth Judicial District, this court said : “ The Article 81 declares that the Judges of the several inferior courts shall be elected by the qualified voters of their respective districts or parishes.” (In the case of Recorders, add, it is by the “ citizens of the city of New Orleans.”) The court proceeds, “ Power, therefore is granted to the Legislature to establish inferior courts; but the power to choose the Judges thereof, when established, is vested elsewhere — -namely, in the qualified voters of the particular district or parish.”
“ The Constitution having thus provided in terms not of permission, hut of command, how Judges of inferior courts shall be chosen, it follows that the Legislature had no power to prescribe any other mode. 9 An., p. 62. See also the case of the State v. The Judge of the Twelfth District, 9 An., p. 64.
In regard to the Article 103 of the Constitution, which declares that the jury iu criminal cases shall be an impartial jury of the vicinage, I think this court would have power, notwithstanding the dictum in 8 Rob. 582, to declare a law unconstitutional where it clearly violated this right of the citizen ; for example, a law which declared that a jury to try the accused should be composed of the relatives of the injured party, or of persons who had suffered like injuries themselves, and in all cases where jurors are selected because they may be supposed to have prejudices against the accused.
Such persons cannot be deemed impartial jurors. If not, this court is required to pronounce null any law declaring such jurors competent.
Looking to this view of the Constitution, it may also be seriously questioned whether slave-holders, on whom the injury of drunkenness in their slaves principally falls, are as a class without prejudice against those who are suspected of selling liquor to slaves.
However this may be, I think the Act unconstitutional, because the law neither entrusts the decision of the cause to the Recorder alone, nor provides him with an impartial jury of the vicinage as known to the common law and our present and previous Constitutions.