A motion was made in the court below to quash an execution, which had been issued against the defendant, under this section, upon the ground, that it was contrary to the constitution of the United States, article 7th of amendments, and to the 21st article of the bill of rights of Maryland.
The court below quashed the execution upon these grounds, and the cause was brought by writ of error to this court.
February 17th.
Key, for the plaintiff, argued, that the act of congress of the 27th of February 1801, giving effect to the laws of Maryland in that part of the district of Columbia, which was ceded to the United States by the state of Maryland, was a re-enactment of those laws, under the exclusive powers of legislation given to congress over the district; and that, consequently, the question of the repugnancy to the local constitution of Maryland could not properly arise. That such summary proceedings, whether of a criminal or civil nature, which were in force, at the time when the constitution of the United States was established, were to be preserved, notwithstanding the 7th article of the amendments to that constitution. That the statute of Magna Charta, in England, from which the 21st article of the bill of rights of Maryland is copied, was never supposed to be infringed by the multitude of modern statutes, under which summary convictions for petty offences were had, and the various summary proceedings authorized by the revenue laws, which had also been adopted in this country: but that what was conclusive of the question was, that no person could ever be made liable to the peculiar process given by this act of Maryland, without his own express consent in writing, that the bill or note, drawn or indorsed by him, should be negotiable at the Bank of Columbia; which, taken in connection with the other provisions of the section, was equivalent to an agreement, that this summary process should issue against him, in case of non-payment. It was, therefore, a case within the maxim pro se introducto. Even after the consent thus given to waive the trial by jury, in the first instance, the party may dispute the demand, on the return of the execution, in which case, in court is to order an issue to be joined, and a trial to be immediately had by jury. So that the whole substantial effect of the provision is, to authorize the commencement of a suit, by an attachment of the person and property of the debtor, instead of the usual common-law process.
Jones, contra, insisted, that the act of congress of the 29th of February 1801, giving effect to the then existing laws of Maryland, in that part of the district of Columbia which had been ceded to the United States, by the state of Maryland, did not extend to such acts as are repugnant to the state and national constitutions. The bill of rights of Maryland limits the legislative powers of the assembly of Maryland. By the third article of that bill of rights, the right of trial by jury is secured in all cases at common law, and the same right is secured by the seventh amendment to the constitution of the United States, in all cases at common law above the value of twenty dollars. The consent of the party that his paper should be negotiable at the bank, was by no means equivalent to an agreement, that this summary process of execution, before judgment, inverting the just and natural order of judicial proceedings, should be issued against him. Nor could the party thus consent, prospectively, to renounce a common-law right. As a stipulation in a policy of insurance, not to sue, but to abide by the award of arbitrators, will not deprive the courts of common law of their ordinary jurisdiction, so neither will the consent of the party thus given, deprive him of his right to a trial by jury. But even supposing the process were in other respects regular, the act under which it is issued does not empower the clerk of the circuit court of the district of Columbia to issue it. It is conferred, by the letter of the statute, upon the clerks of the general court, or the county court, and no provision is made in the act of congress of the 27th of February 1801, for vesting the same powers in the clerk of the circuit court of the district, and for giving to that court the same jurisdiction over the case which the state court of Maryland previously had.
Martin, contr a, was stopped by the court.
February 22d, 1819.
JOHNSON, Justice, delivered the opinion of the court.