Johnson, J.
The decision of the county court and of the justice were in accordance with the decision of this court, at general term in the seventh judicial district, in the case of Dawson v. Horan, (51 Barb. 459,) and was com rect, unless that decision is to be overruled as contrary to law. The same question was raised in that case as in this. [21]*21that the legislature has no power, by enlarging the jurisdiction of a justice, to deprive the defendant of the right to have his cause tried by a jury of twelve men. That was an action to recover the value of labol4 and services, under the act of 1861, increasing the jurisdiction of justices of the peace to $200, and the plaintiff recovered $200 besides his costs. The argument was there, as here, that the provision of the constitution, (art. 1, § 2,) that “the trial by jury in all cases in which it has been heretofore used shall remain inviolate forever,” guarantied to every person the right to a trial by a jury of twelve men, in every case in wThieh a jury of twelve men. had previously been used, and operated as a limitation upon the power of the legislature to enlarge the jurisdiction of justices’ courts beyond its boundaries at the adoption of the constitution, because, there, trials are by a jury of six men only.
It will be seen that the questions in each case are identical. The court, in that case, held that, this provision of the constitution had no reference to the power of the leg-. islature to alter and increase the jurisdiction of justices’ coul’ts, and was not intended to5 and did not, operate as a limitation upon such power in that regard. I have no doubt, whatever, that the decision was correct, and should be decisive of this case.
But as this question seems to have been several times raised, recently, in actions before justices, to recover the possession of personal property, notwithstanding the decision in Dawson v. Horan, (supra,) on which conflicting decisions in county courts have been made; one county court at least having taken the responsibility of deciding, in a reported case, (Baxter v. Putney, 37 How. Pr. 140,) that the act in question here is unconstitutional and void; it' may not be amiss to give the question a more full and critical examination than it seems.heretofore to have received, for the purpose of having the question finally settled, if a [22]*22final settlement of any question is practicable under our judicial system.
The question in regard to civil actions in justices’ courts,, now presented, is quite a new one, having been, so far as I am advised, first raised in Dawson v. Horan. In. our whole judicial history, from the beginning, nó' trace of any such question having been raised for adjudication is to be found. All three of our State constitutions have contained similar provisions to the one in question, in our present constitution, and yet nothing has been more common than for the legislature, under each and all, to exercise the power of altering and enlarging the jurisdiction of«these inferior tribunals, and authorizing them to try actions, and classes or kinds of action, with a jury of six men, which before were triable only in a court of record by a jury of twelve men. This fact alone—of general acquiescence ‘in" the exercise of this power for so long a period—is one of great weight in favor of its constitutionality, and one which ought to be conclusive at this day, as to the true construction and meaning of this constitutional provision in this regard.
The constitution of 1821 had the same provision, in the same identical terms.' The first constitution of 1777 had also a provision to the same purport and effect in these words: “ That trial by .jury, in all cases in which it hath heretofore been used in the colony of Yew'York, shall be established and remain inviolate forever.” The changes made by the legislature under each of these constitutions, in the power and jurisdiction of justices’ courts, have been neither few nor insignificant, as a-brief reference to several of them will show.
At the adoption of the first constitution, in 1777, courts of justices of the peace having jurisdiction in civil actions to a limited amount, were a part of the judicial system of the colony of Yew York for the administration of justice. They had been long established, and their jurisdiction [23]*23regulated by statute. The .first legislative enactment I have been able to examine on the subject, was passed December 16th, 1737. (Laws of New York from 1691 to 1773, inclusive, chap. 656.) By this act jurisdiction was conferred upon justices’ courts in “all actions, cases, and causes, of debt, detinue, trespass* and replevin, wherein the thing or sum demanded for cause of action, shall be of the value of forty shillings, or under.” By this act the right to a trial by a jury of six men was given to either party. In 1772 another act was passed, giving justices’ courts jurisdiction in the same class of actions, specifying debt, trespass, trespass on the case, and replevin where the sum or thing demanded did not exceed five pounds. (Chap. 1532, of laws above cited.) This act also gave either, party the right to a trial by a jury of six men, and made provision for the summoning of not more than eighteen, nor less than twelve, being “freeholders or freemen,” from which the six jurors were to be drawn, to try the cause. This act was in force at the adoption of the constitution of 1777. Very soon after the adoption of the first constitution containing the provision now insisted upon as a limitation upon legislative power in respect to' the jurisdiction of justices’ courts, and in 1780 the legislature passed an act enlarging .such jurisdiction to one hundred pounds. (1 Jones & Varick, 54, 61.) Two years later, in. 1782, another act was passed reducing this jurisdiction to ten pounds, or fifty dollars. (1 id. 80.)
In 1787 another act was passed in regard to justices’ courts, (1 Greenl. 445, ch. 89;) and in 1813 another, in both of which jurisdiction was fixed at twenty-five dollars, and in both the action of detinue is among the causes of action which such courts were authorized to try, and in both the jury was to be a jury of six men. This remained until 1818, when an act was passed increasing the jurisdiction of these courts to fifty dollars, in the same class of actions, including detinue. By this act the jury was to be [24]*24a jury of six men, except in cases where the sum or'balance due, or thing demanded, exceeded twenty-five' dollars; in which case either party might demand and have a trial by a jury of twelve men, to be drawn from the number of twenty to be summoned. This act was in force at the adoption of the constitution of 1821, and remained in force up to the revision of our statutes in 1830, its provisions in regard to kinds of actions, amount, and number of jury, not having been essentially altered by the act of 1824. By the Revised Statutes the action of detinue was abolished, and justices’ courts from that time ceased to have jurisdiction in actions to recover the possession of personal property, until it was restored by the act in question. The number of the jury, by the Revised Statutes, was reduced to six men, in all cases, and has so remained ever since. The revisers, in’ their notes, recommending this change, say that “the utility of the existing difference in the number of jurors, in the cases where the demand is under twenty-five dollars, and where it exceeds that amount, is not perceived.”
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Johnson, J.
The decision of the county court and of the justice were in accordance with the decision of this court, at general term in the seventh judicial district, in the case of Dawson v. Horan, (51 Barb. 459,) and was com rect, unless that decision is to be overruled as contrary to law. The same question was raised in that case as in this. [21]*21that the legislature has no power, by enlarging the jurisdiction of a justice, to deprive the defendant of the right to have his cause tried by a jury of twelve men. That was an action to recover the value of labol4 and services, under the act of 1861, increasing the jurisdiction of justices of the peace to $200, and the plaintiff recovered $200 besides his costs. The argument was there, as here, that the provision of the constitution, (art. 1, § 2,) that “the trial by jury in all cases in which it has been heretofore used shall remain inviolate forever,” guarantied to every person the right to a trial by a jury of twelve men, in every case in wThieh a jury of twelve men. had previously been used, and operated as a limitation upon the power of the legislature to enlarge the jurisdiction of justices’ courts beyond its boundaries at the adoption of the constitution, because, there, trials are by a jury of six men only.
It will be seen that the questions in each case are identical. The court, in that case, held that, this provision of the constitution had no reference to the power of the leg-. islature to alter and increase the jurisdiction of justices’ coul’ts, and was not intended to5 and did not, operate as a limitation upon such power in that regard. I have no doubt, whatever, that the decision was correct, and should be decisive of this case.
But as this question seems to have been several times raised, recently, in actions before justices, to recover the possession of personal property, notwithstanding the decision in Dawson v. Horan, (supra,) on which conflicting decisions in county courts have been made; one county court at least having taken the responsibility of deciding, in a reported case, (Baxter v. Putney, 37 How. Pr. 140,) that the act in question here is unconstitutional and void; it' may not be amiss to give the question a more full and critical examination than it seems.heretofore to have received, for the purpose of having the question finally settled, if a [22]*22final settlement of any question is practicable under our judicial system.
The question in regard to civil actions in justices’ courts,, now presented, is quite a new one, having been, so far as I am advised, first raised in Dawson v. Horan. In. our whole judicial history, from the beginning, nó' trace of any such question having been raised for adjudication is to be found. All three of our State constitutions have contained similar provisions to the one in question, in our present constitution, and yet nothing has been more common than for the legislature, under each and all, to exercise the power of altering and enlarging the jurisdiction of«these inferior tribunals, and authorizing them to try actions, and classes or kinds of action, with a jury of six men, which before were triable only in a court of record by a jury of twelve men. This fact alone—of general acquiescence ‘in" the exercise of this power for so long a period—is one of great weight in favor of its constitutionality, and one which ought to be conclusive at this day, as to the true construction and meaning of this constitutional provision in this regard.
The constitution of 1821 had the same provision, in the same identical terms.' The first constitution of 1777 had also a provision to the same purport and effect in these words: “ That trial by .jury, in all cases in which it hath heretofore been used in the colony of Yew'York, shall be established and remain inviolate forever.” The changes made by the legislature under each of these constitutions, in the power and jurisdiction of justices’ courts, have been neither few nor insignificant, as a-brief reference to several of them will show.
At the adoption of the first constitution, in 1777, courts of justices of the peace having jurisdiction in civil actions to a limited amount, were a part of the judicial system of the colony of Yew York for the administration of justice. They had been long established, and their jurisdiction [23]*23regulated by statute. The .first legislative enactment I have been able to examine on the subject, was passed December 16th, 1737. (Laws of New York from 1691 to 1773, inclusive, chap. 656.) By this act jurisdiction was conferred upon justices’ courts in “all actions, cases, and causes, of debt, detinue, trespass* and replevin, wherein the thing or sum demanded for cause of action, shall be of the value of forty shillings, or under.” By this act the right to a trial by a jury of six men was given to either party. In 1772 another act was passed, giving justices’ courts jurisdiction in the same class of actions, specifying debt, trespass, trespass on the case, and replevin where the sum or thing demanded did not exceed five pounds. (Chap. 1532, of laws above cited.) This act also gave either, party the right to a trial by a jury of six men, and made provision for the summoning of not more than eighteen, nor less than twelve, being “freeholders or freemen,” from which the six jurors were to be drawn, to try the cause. This act was in force at the adoption of the constitution of 1777. Very soon after the adoption of the first constitution containing the provision now insisted upon as a limitation upon legislative power in respect to' the jurisdiction of justices’ courts, and in 1780 the legislature passed an act enlarging .such jurisdiction to one hundred pounds. (1 Jones & Varick, 54, 61.) Two years later, in. 1782, another act was passed reducing this jurisdiction to ten pounds, or fifty dollars. (1 id. 80.)
In 1787 another act was passed in regard to justices’ courts, (1 Greenl. 445, ch. 89;) and in 1813 another, in both of which jurisdiction was fixed at twenty-five dollars, and in both the action of detinue is among the causes of action which such courts were authorized to try, and in both the jury was to be a jury of six men. This remained until 1818, when an act was passed increasing the jurisdiction of these courts to fifty dollars, in the same class of actions, including detinue. By this act the jury was to be [24]*24a jury of six men, except in cases where the sum or'balance due, or thing demanded, exceeded twenty-five' dollars; in which case either party might demand and have a trial by a jury of twelve men, to be drawn from the number of twenty to be summoned. This act was in force at the adoption of the constitution of 1821, and remained in force up to the revision of our statutes in 1830, its provisions in regard to kinds of actions, amount, and number of jury, not having been essentially altered by the act of 1824. By the Revised Statutes the action of detinue was abolished, and justices’ courts from that time ceased to have jurisdiction in actions to recover the possession of personal property, until it was restored by the act in question. The number of the jury, by the Revised Statutes, was reduced to six men, in all cases, and has so remained ever since. The revisers, in’ their notes, recommending this change, say that “the utility of the existing difference in the number of jurors, in the cases where the demand is under twenty-five dollars, and where it exceeds that amount, is not perceived.” (Revisers' Notes, 3 R. S. 686, 2d ed.)
It did not occur to the revisers, nor to the legislature which adopted the amendment, that there was any question involved, other than that of fitness and expediency. Ever since the adoption of the Revised Statutes, the regular lawful jury for justices’ courts, in all cases, has been six men, and no more. In 1840, under the constitution of 1821, the jurisdiction of justices’ courts was further enlarged to $100. The extension of their jurisdiction under the present constitution, is too well known to need more particular notice. We have then, through our whole history as a State, these repeated and material changes and enlargements óf the jurisdiction of justices of the peace in civil actions, under three constitutions, containing substantially the same provision, and through several generations of legislators, revisers of statutes, judges and law[25]*25vers, and framers of constitutions, and no one amongst them all, eminent as many of them were, ever suspected that any provision óf the constitution had been thereby invaded, least of all, that any one had been thereby deprived of the right of trial by jury, in defiance of the constitutional guaranty.
I have been particular to notice that from the beginning, justices’ courts had jurisdiction of actions to recover the possession of personal property, up to 1830, when the action of detinue was abolished; because it has been suggested that actions of that class were things unheard of before, in a justice’s court; whereas the general fact is quite the other way. Replevin, whether in the cepit or in the detinet, was to remedy a class of wrongs of which a justice’s court has always had jurisdiction.
The great point contended for, is that this provision of the constitution means the old common law petit jury of twelve men, and nothing else. The provision does not say this in terms, and constitutions, like all other laws, must be interpreted, by the language used. What it says is, “ trial by jury as it has been heretofore used.” A jury of six men in a. justice’s court is as much a jury, in the eye of the law, as a jury of twelve men in a court of record. The law has made it the jury for that tribunal, and it is a jury there, to all intents and purposes. It is the jury which has been “ heretofore used ” in that tribunal. It was so at the adoption of the first constitution under the colonial laws. And the constitution of 1777, when it speaks of the trial by jury “ as it has been heretofore used in the colony of Hew York,” must, as it seems to me, have intended to secure the right of trial by jury in justices’ courts, as it had been theretofore used in the colony, as well as in any other court. Certainly the language is broad enough to include all trials in all courts, and it should be so construed, unless there is something to give it a special or exceptional application. As has been [26]*26already remarked, before, and at, the adoption of the first constitution, justices’ courts were a well known and established part of the judicial system. They were part and parcel of the machinery of government for the administration of the law. Doubtless it was true then, as it is now, that more than three-fourths in number, of all actions, tried and determined between parties in the community, are tried and determined in these tribunals of limited jurisdiction. It wTould, I think, be quite safe to say, that the aggregate amount of claims litigated, and of judgments rendered, in every county in the State, is by far greater in these numerous town courts, than in all' other .courts of every description, held in such counties. It is scarcely possible, and quite improbable, that this provision of the constitution was not intended to embrace juries in justices’ courts as they existed, and had been used before the constitution was adopted. They certainly had been “ heretofore used.”
Suppose the legislature should now undertake to abolish, by statute, juries in justices’ courts, and provide that all cases in which a justice had jurisdiction should be tried by the justice without any jury whatever. It would then, I think, be seen plainly enough, that this provision of the constitution had been violated in that direction. It would' be quite unreasonable to suppose that the framers of either of our constitutions, or the people by whom they were adopted, intended that juries in justices’ courts were to be, or indeed pould be, the common law petit jury of twelve men used in courts of record. All knew that they were not common law courts,'but were creatures of the statute, with such powers and faculties, only, as the legislature, by which they were created, saw fit to bestow. The juries belonging to these courts were, therefore, necessarily creations of the statute, and nothing more. When, under the statute of 1818, and 1824, a certain class of causes were tried in these courts by a jury of twelve men, [27]*27it was no more the common law petit jury than the jury of six men, by which other causes were tried in the same court. Each was a statute jury, and neither had any resemblance to the common law jury, except that one. corresponded in number with that jury. In this view there is no infringement of the right of trial by jury in enlarging the jurisdiction of justices’ courts. On the other hand, if this provision of the constitution is to be held to mean the common law petit jury, it must also be held to mean such a jury for common law courts, in which such a jury had been used before the adoption of the constitution. The true and proper definition of the words “ in all cases,” in which it has been heretofore used, is not confined to the kinds of action, or the amounts claimed to be due therein, but is much broader, and means in all the conditions and circumstances in which it had been theretofore used, including the tribunals and machinery of litigation in which it had been so used.
The argument in behalf of the appellant is, that by force of this provision every action, and cause of. action, which, by reason of the amount in controversy, or otherwise, could be tried in a common law court, and by a common law jury only, at the adoption of the constitution, must remain triable in that tribunal as long as the constitution stands, and cannot be. transferred to another court where a different jury is used to any extent, or in any degree. The practical construction, as we have seen adopted and acted upon, and universally acquiesced in, has been to the contrary for nearly a century, and under every constitution, each of which has contained this same provision.
The question is undoubtedly as to the power of the legislature to enlarge the jurisdiction of justices’ courts, and nothing more nor less. Ho one, I suppose, doubts the power of the legislature in this respect, unless its power is restricted in the premises by some constitutional [28]*28limitation upon it. Its power is general, and Unlimited as to all subjects of legislation, .except in the cases where it has been abridged by the constitution of the State, of of the United States. But even if some express grant of power in the constitution were needed to enable the legislature to do what it has undertaken to do, by the act in question, it will be found in section 5, article 6, of the constitution of 1846, which was in force when the statute in question was passed, and which declares that “ the legislature shall have the same powers to alter and regulate the jurisdiction and proceedings in law and equity as they have heretofore possessed! When it is seen that previous to the adoption of the constitution of 1846, the legist lature had long been in the practice of exercising the very power which was exercised in passing the act in question, and were admitted by universal consent and acquiescence to possess it, this provision of the constitution is quite conclusive upon the question. Just what has been done by the act in question, is “ to alter and regulate the jurisdiction and proceedings in law,” and that in the same manner, and Upon the same principle, and by the exercise of the same power which the legislature was deemed to possess. As this same power had always, up to the adopt tian of the constitution of 1846, been exercised by the legislature unchalleged, the presumption is that the framers of that constitution, and the electors by whom it was adopted, understood that it was one of the powers included in this section 5. The old and well established rule for the interpretation of statutes applies with equal force to written constitutions, that “ great regard ought, in construing a statute, to be paid to the construction which the sages of law who lived about the time, or soon after it was made, put upon it-; because they were best able to judge of the intention of the .makers.” (Bac. Abr. Statutes, I, 5.) “ It is moreover a maxim, that contemporánea expositio est fortissimo in lege, (Id.)
[29]*29The appellant’s counsel also contends that the question here presented was deeidéd in accordance with his position by the Court of Appeals, in the case of The People v. Toynbee, (13 N. Y. 378.) The decision in that case has no application to the question here presented. That was a criminal proceeding, where the defendant, when brought before the magistrate, offered to give bail to appear before the next court having criminal jurisdiction, according to the provisions of the Revised Statutes, in such cases provided. .The magistrate refused to take bail, but proceeded to try the defendant, as a court of special sessions, and convict him, under the provisions of the act of 1855, for the prevention of intemperance; the result of which conviction was to subject his property to confiscation and destruction, under the provisions of the act. The question was decided by the Court of Appeals mainly upon the ground that at and before the adoption of the constitution of 1846, offenses of that class, for a violation of the excise laws, were not triable at all, by courts of special sessions, but only in courts of general sessions or of oyer and terminer, where proceedings were according to the course of the common law. Courts of special sessions had no jurisdiction whatever, in such cases, not even a qualified or conditional jurisdiction as in many other classes of misdemeanors. (See opinions in case. A. S. Johnson, J., p. 426, and Denio, Ch. J., p. 459.) It was also remarked by these and some of the other judges, that at the adoption of the constitution, under which the act was passed, courts of special sessions had no absolute and unconditional jurisdiction in any case, but that in every case of misdemeanor, a party brought before a magistrate had the unqualified right, if he chose to exercise it, to give bail for his appearance at the next court having criminal jurisdiction, and have his case there tried, according to the course of the common law, by a common law jury. It cannot be doubted that had courts of special sessions, at the adoption of the [30]*30constitution of 1846, with a "jury of six men, had the same absolute and unqualified jurisdiction to try offenses of the grade of misdemeanor, that justices’ courts have always had in civil actions since their first organization, the question would have been decided the other way, if indeed it ¿ould have arisen. In that case, the trial by jury, as it had theretofore been used, would have remained inviolate. It will thus be seen, as has been before remarked, that the decision referred to has no application to the question presented in this case, as the two cases are in no. respect parallel. There should be no straining, by construction, to bring this statute into conflict with the constitution, especially as there is no mischief to be remedied by its abrogation. It affords to parties a cheap and speedy remedy to recover possession of théir property, "wrongfully taken or withheld, the value of which is of a comparatively small amount, at home, without .encountering the far greater expense, delay, and inconvenience attending the trial of actions in courts of record. Ho one pretends, or can argue with any show of reason, that a justice of the peace is not just as competent to try and decide the question as to which party is legally entitled to the possession of personal property of limited value, as he is. to try and decide the question of title and value. Indeed the right to the possession of the chattel, generally, if not always, entered into, and had to be determined in, justices courts, in actions of trover and trespass de bonis asportatis. Ho good reason is or can be shown why the justice should not have the power to try the one question as well as the other. Certainly there is. no constitutional difficulty in the way, which would allow one and exclude the other. Something has been said, in one of the cases of this kind now before us, in regard to waiving the objection to the right of the magistrate to try the cause with a jury of six men, or without a jury, by the defendant appearing and joining issue in the action, before demanding to have the case [31]*31tried by a jury of twelve men, or making any objection to the right of the justice to proceed. There is nothing in this suggestion. If the magistrate had not jurisdiction by law, no consent or acquiescence could confer it,, and the objection of the want of it may be raised in any stage of, the action, wherever it maybe carried, by appeal or otherwise. This is well settled. On the other hand, if the statute is valid, it gives jurisdiction to the magistrate, to proceed and try the action, in the form and manner prescribed by law for the trial of actions in his court, and no demand by the defendant to have the action tried in a different manner, and one in which the justice could not by law proceed, could oust the justice of his jurisdiction, or affect in any way his right to proceed and try and determine such action. There is no such thing as ousting a magistrate of jurisdiction, in a case where it is conferred upon him by law, except in those cases where the statute has provided for it by the interposition of a plea of title or otherwise. As to the power of the legislature to confer this jurisdiction, I entertain no doubt whatever. But should it be held that the right of the legislature to exercise it in the beginning was doubtful, it'would be asking quite too much of courts, at this late day, to declare that such power was forbidden in the constitution by implication, and thus unsettle all the rights which have been, acquired under the various statutes of the same character, for so long a period. Such a decision would justly be regarded as a great public calamity, opening in reality a Pandora’s box, .in every community in the State, without a single advantage to any one; and it ought not to be made, except upon the clearest and most undoubting conviction of its justice and necessity. I am of the opinion, therefore, that the judgment of the county court was right and should be affirmed.
Talcott, J., concurred.