or to seize a person not named, or whose offence is not particularly described and supported by evidence, are grievous and ought not to be granted.1 And in Washington "no person shall be disturbed in his private affairs, or his home invaded without authority of law." 2 3 § 72. Trial by Jury. In most States there is a general provision in the Constitution that the right to trial by jury shall remain inviolate.1 In a few this provision applies only to civil cases," or only to controversies concerning property and suits between two or more persons [i. e., civil suits]." So, the right shall only in civil cases. exist when an issue of fact proper for a jury is joined in a court of law. In Texas the Constitution further provides that the Legislature shall pass laws to regulate trial by jury, and maintain. its purity and efficiency. 8 § 73. Exceptions. (For criminal causes, see § 131.) There is in many States no constitutional right to trial by jury when the amount in controversy does not exceed a certain sum. Or in minor courts; as, in civil cases, before a justice, or in courts not of record. But the right usually exists when the title to real estate is involved. 10 In some States the right is expressly declared to extend to all cases at law, without regard to the amount in controversy.' 11 Some States make an exception to the right to a jury "in cases heretofore used and practised." 12 1 Md. Decln. Rts. 26; N. C. 1, 15; N. J. 1, 7; N. M.* 95, 1; 1851, July 12, N. H.; Tenn. 1, 7; Va. 1, 10; Vt. 2 Wash. 1, 7. This seems to establish the much discussed "right to privacy." 3 Compare Decln. Ind. (22) and U. S. C. Amt. 7. For a fuller discussion of the questions of jury trial and due process of law, see §§ 140, 131. Trial by jury is not the judgment of his peers referred to in Magna Carta, c. 39, but grew out of that when it became the usual mode of trial some centuries later. Taswell-Langmead, p. 105. Taylor, I. 281, 310, 331, 332. Ala. 1, 11; Ariz.* B. Rts. 8; Ark. 2, 7; Cal. 1, 7; Ct. 1, 21; Del. 1, 4; Fla. Decln. Rts. 3; Ga. 6, 18, 1; Ida. 1, 7; Ill. 2, 5; Io. 1, 9; Kan. B. Rts. 5; Ky. 7; Md. Decln. Rts. 5; Mich. 6, 27; Minn. 1, 4; Miss. 31; Mo. 2, 28; Mon. 3, 23; N. D. 7; Neb. 1, 6; Nev. 1, 3; § 12; N. Y. 1, 2; O. 1, 5; Okla. 2, 19; Pa. 1, 6; R. I. 1, 15; S. C. 1, 25; S. D. 6, 6; Tenn. 1, 6; Tex. 1, 15; Va. B. Rts. 10; Wash. 1, 21; Wis. 1, 5; Wy. 1,9. The Legislature may alter the law trial by jury as to causes arising on the high seas, or concerning mariners' wages.1 In some the Legislature may in civil cases authorize a trial by a jury of less than twelve men. So, in a few States, in inferior courts [as before a Justice of the Peace]. So, in New Jersey, in civil suits involving less than fifty dollars, and in Connecticut in cases involving twenty dollars and not more than one hundred dollars, by a jury of six men. And in three States the parties may agree on a jury less than twelve in number. In one no jury is allowed in cases tried before a Justice of the Peace, except on appeal therefrom. A jury in justices' courts, civil or criminal, consists of not more than six. In Kentucky the Legislature may provide for a three-fourths verdict in the Circuit Court." And by the Constitutions of a few States, in civil actions, threefourths of a jury may render a verdict. 10 So, two-thirds.11 Juries are of eight men, or four in minor courts. 12 § 74. Waiver. 13 - By the Constitutions of many States the right to a trial by jury may be waived by the parties in all cases in the manner prescribed by law. In some, the right shall be deemed waived, in all civil cases, unless demanded by the parties, or one of them, in the manner prescribed by law.15 So, in one State, the Constitution only provides that the right shall be preserved if required by either party.10 § 75. Suits against the State." -In many States the Constitu 1 Mass., N. H. 2 Col. 2, 23; Fla. 5, 38; La. 116; Mich. 4, 46; Wy. 1, 9. The constitutional number of a jury was always, and must necessarily be, twelve men. See Taylor, I, 203, 206. 11 Mon., Mo. (in courts not of record.) 12 Utah 1, 10. 13 For criminal cases, see § 132. 14 Ark. 2, 7; Ariz.* B. Rts. 82; Cal. 1, 7; Del. 4, 23; Fla. Decln. Rts. 2; 3 Fla. (six men); Ga. (but not less Ida.; Md. 4, 1, 8; Minn. 1, 4; Mon. than five men); Ill.; Io.; Ky. 248 3, 23; N. C. 4, 13; Nev. 1, 3; N. Y. 1, (six men); Mo.; Mon.; N. C. 4, 27 2; Pa. 5, 27; Vt. 2, 31; Wash. 1, 21; (six men); N. D.; Neb.; Okla. 2, 19 Wis. 1, 5. (six men); S. D.; Tex. 5, 17 (six men in the county court); Va.; Wash.; W. Va. 15 Mich. 6, 27; Tex. 5, 10; Utah 1, 10. 16 W. Va. 3, 13. 17 For the method of prosecuting claims against the State, in the courts, see also 653. The Federal courts were forbidden to entertain suits against a State by the eleventh amendment. A State, being sovereign, cannot be sued but with its own consent. tion provides that the Legislature shall direct a method by which citizens having claims against it may sue the State.1 No special act authorizing such suit can, however, be passed. In a few, the Supreme Court has, by the Constitution, jurisdiction of claims against the State, but its decisions are merely recommendatory." In others a board is created to audit claims.* In others, the State can never be made defendant in a court of law or equity." 6 § 76. The Common Law. By the Constitution of Maryland the people are declared entitled to the common law of England.' So, in New York, such parts of the common law as formed the law of the colony, April 19, 1775, are declared in force, if not repugnant. So, in four States, to such parts of the common law as were in force in the territory, or previously to the adoption of the present Constitution in the State, if not inconsistent with the State Constitution." So, in Maryland, such English statutes as existed July 4, 1 Cal. 20, 6; Del. 1, 9; Fla. 3, 22; Ind. 4, 24; Ky. 231; La. 192; N. D. 22; Neb. 6, 22; Nev. 4, 22; Ore. 4, 24; Pa. 1, 11; S. C. 17, 2; S. D. 3, 27; Tenn. 1, 17; Wash. 2, 26; Wis. 4, 27; Wy. 1, 8. 2 Fla., Ind., Nev., Ore. 3 Ida. 5, 10; N. C. 4, 9. The Secretary, Treasurer, and Commissioner of Lands of the State shall constitute a board of State auditors, to examine and adjust all claims against the State not otherwise provided for by general law (Mich. 8, 4). So, the Governor, Secretary of State, and Attorney General (Ida. 4, 18; Mon. 7, 20; Utah 7, 13). They are examined by the auditor, and approved by the Secretary of State, with appeal to the District Court (Neb. 9, 9). Ala. 14; Ark. 5, 20; Ill. 4, 26; W. Va. 6, 35, and so, where the laws are silent. Altering the common law, as it has been altered in England, by growth rather than by statute, still prevails in most States. California and the Dakotas, Idaho, Wyoming, Utah, Montana, and Oklahoma have attempted complete codes, however; Georgia, New York, and other States, partial codes. See Blackstone, Book III. p. 126, for the earliest argument against them; Reinsch, Am. Legislatures, for the latest. The effect of a code seems to be to render the law uncertain and increase the number of suits that are carried to the higher courts. The so-called codes of the earlier kings, Edward the Confessor or Henry II., were in no sense codes in this modern sense. The Constitutional history of England consists mainly in the reassertion of the common English law against Norman ideas, whether in the form of royal prerogative, statute, order-incouncil, church authority, chancery, martial or civil law. See Part I. "The laws of the English, the most ancient of modern laws, extend in an unbroken series from the first [written] laws of Ethelbert. . . (600) down to the present time" (Taswell-Langmead, p. 33). They were recognized by William the Conqueror (ibid. 52), formally recognized by every king on his coronation, and for the last time questioned by Charles I. See Taylor, I. 425, 271. 7 Md. Decln. Rts. 5. 8 N. Y. 1, 16. Mich. Sched. 1; N. J. 10, 1; Va. Sched. 1; W. Va. 8, 36; Wis. 14, 13; Wy. 21, 3. 1776, and are, or have been found, applicable. In New York, grants of land made by the King after October 14, 1775, are invalid.1 § 77. Law Previously in Force. — By the Constitutions generally, such laws of the colony (in the original thirteen) or territory (in the others) or State, as were in force previous to the Constitution, remain in force afterwards unless repugnant to it, or repealed by the Legislature.2 In Kentucky, all laws, not local, which were in force in Virginia, June 1, 1792, are valid in the former State if not repugnant to its Constitution. In Maine all Massachusetts laws in force December 6, 1819. In West Virginia all land titles are valid which existed under the laws of Virginia up to 1863.5 § 78. Miscellaneous Rights at Law. In Nebraska the Constitution provides that the right in all civil cases to be heard in the court of last resort by appeal, etc., shall not be denied." § 79. Venue.8 Every action shall be tried in the county where commenced unless the judges determine that an impartial trial cannot be had.9 ARTICLE 8. DEBTORS § 80. Imprisonment for Debt. In many States the Constitution provides absolutely that there shall be no imprisonment for debt. 10 In others, no imprisonment for debt in any civil action or mesne or final process," or in any action or judgment founded upon contract.12 In others, that there shall be no person imprisoned for 1 N. Y. 1, 17. 2 Ala. Sched. 1; Ark. Sched. 1; Cal. 22, 1; Col. Sched. 1; Ct. 10, 3; Del. Sched. 18; Fla. 18, 2; Ga. 12, 1, 3; Ida. 21, 2; Ill. Sched. 1; Ind. Sched. 1; Io. 12, 2; Kan. Sched. 4; Ky. Sched. 1; La. 325; Mass. 6, 6; Md. Decln. Rts. 5; Me. 10, 1; Mich. Sched. 1; Minn. Sched. 2; Miss. 274; Mo. Sched. 1; Mon. 20, 1; N. C. 4, 19; N. D. Sched. 2; Neb. 18, 1; Nev. 17, 2; N. H. 2, 89; N. J. 10, 1; N. Y. 1, 16; O. Sched. 1; Okla. Sched. 2; Ore. 18, 7; Pa. Sched. 2; R. I. 14, 1; S. C. 17, 11 & 10; Tenn. 11, 1; Tex. 16, 48; Utah 24, 2; Va. Sched. 1; Wash. 27, 2; W. Va. 8, 36; Wis. 14, 2; Wy. 21, 3. 3 Ky. 293. • Me. 10, 1. 5 W. Va. 13, 1. For the right to counsel, see § 134. 7 See also §§ 654, 665. Neb. 1, 24. 8 For criminal cases, see § 133. Del. 1, 9. See U. S. C. Amt. 6. 11 Ark. 2, 16; Ariz.* B. Rts. 18; Cal. 1, 15; Io. 1, 19; Neb. 1, 20; O. 1, 15; Ore. 1, 15; Tenn. 1, 18. 12 Mich. 6, 33; N. J. 1, 17; S. D. 6, 15; Wis. 1, 16. debt in any civil action when he has delivered up his property for the benefit of creditors in the manner prescribed by law.1 4 And a general exception is made in case of fraud. So the Legislature has power to provide for the punishment of fraud, and for reaching property of the debtor concealed from his creditors.3 Absconding debtors may be imprisoned; or debtors in cases of libel or slander; in civil cases of tort generally; in cases of malicious mischief; or of breach of trust; or of moneys collected by public officers, or in any professional employment; for non-payment of fines, etc. 10 7 8 9 § 81. Debtor Exemption Laws.11- The Constitutions of many States have provisions exempting certain property of resident debtors from attachment, execution or sale by creditors; thus, in detail "that the privilege of the debtor to enjoy the necessary comforts of life shall be recognized by wholesome laws exempting a reasonable amount of property; "12 that the Legislature shall pass liberal exemption laws; 13 that laws shall be passed protecting from forced sale a certain amount of the personal property of adults, male and female; 14 that certain personal property to be designated by law, to the value of five hundred dollars, shall be exempted. 15 17 That personal property (of any nature) to the value of $200, in the hands of a husband, a parent, or the infant children of deceased parents, shall be exempted.18 Personal property (of any nature) to be selected by the debtor, to the value of $500 1 or of $1000; 18 and wearing apparel and tools and implements of trade, to the value of $300, of any person. 19 Personal property of a resident not married or the head of a family, to the value of $200 and his clothing, 1 Col. 2, 12; Ill. 2, 12; Ky. 18; Mon. 3, 12; N. D. 15; Okla.; Pa. 1, 16; R. I. 1, 11; Vt. 2, 33. 2 Ariz.*, Ark., Cal., Col., Fla., Ida., Ill., Ind., Io., Kan., Ky., Mich., Minn., N. C., N. D., Neb., Nev., N. J., O., Ore., Pa., R. I., S. C., Tenn., Vt., Wy. Ga. 1, 2, 6. Ore., Utah, Wash. 5 Nev. Cal., Col., N. D. 7 Cal. Ariz.*, Mich. Ariz.*, Mich. 10 Mo. 11 For States where the exemptions of real and personal property are not kept distinct, see §§ 83 et seq. The exemption of a farmer's horse and cattle or plow and of an artisan 's tools goes back to Magna Carta, c. 20. See Taswell-Langmead, p. 92. 12 Ind. 1, 22; Minn. 1, 12; Mon. 19, 4; N. D. 208; Nev. 1, 14; S. D. 21, 4; Wis. 1, 17. 13 Col. 18, 1; Ill. 4, 32. 14 Cal. 17, 1; Tex. 16, 49; Wash. |