Page:Harvard Law Review Volume 9.djvu/557

529 INJUNCTIONS AGAINST LIQUOR NUISANCES. 529 might simply change the law by statute, and thus remove the landmark and barrier intended to be s^t up in this provision in the Bill of Rights. It must therefore have intended ihe ancient established law and course of legal proceedings by an adherence to which our ancestors in England before the settlement of this country and the emigrants themselves and their descendants had found safety for their personal rights.'*^ The State Constitutions, moreover, generally provide expressly that the right to a jury trial, both in criminal and civil cases, shall remain inviolate.^ In Massachusetts the right to such a trial upon a criminal prosecution for a minor offence, such as a violation of an excise law, is not expressly provided for. But as a part of the " law of the land " it seems to be guaranteed, if '* law of the land " is to be construed as it was by Chief Justice Shaw in Jones v, Robbins, supra. For as early as 1692, at least, penalties of fine and imprisonment were prescribed for the illegal selling of liquors. These penalties might be enforced by a justice of the peace.^ But apparently ever since 1699 there has been a provision for an appeal from his decision to some court in which the accused would be entitled to a jury trial.* Furthermore, as the liquor nuisance statutes purport to provide for a civil proceeding, the various constitutional provisions regarding jury trials in civil suits seem to be applicable. We have then certain acts condemned by the criminal law, for the punishment of which at the time of the adoption of the State Constitutions there was, in most of the States at least, a well set- 1 Jones V. Robbins, 8 Gray, 329, 342. 2 Mass. Const., Part First : " Art. XII. . . . And no subject shall be arrested, impris- oned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judg- ment of his peers or the law of the land." * " Art. XV. In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practised, the parties have a right to a trial by jury; and this method of procedure shall be held sacred, unless, in causes arising on the high seas, and such as relate to mariners' wages, the legislature shall hereafter find it necessary to alter it." la. Const. Art. i,sec. 9. " The right of trial by jury shall remain inviolate," etc. .. . Sec. 10: " In all criminal prosecutions, and in cases involving the life or liberty of an individual, the accused shall have a right to a speedy and public trial by an impartial jury." See also N. H. Bill of Rights, Arts. 15, 20; Vt. Const., Ch. I. Arts. X., XII. ; Ohio Const, Art. I. sees. 5, 10; W. Va. Const, Art. III. sees. 10, 13, 14; Kan. Bill of Rights, sees. 5, 10; N. D, Const., Art I. sees. 7, 13 ; S. D. Const., Art. VI. sees. 2, 6. ^ Acts and Resolves of the Province of Massachusetts Bay, Vol. I. p. 56, ch. 20.
 * Ibid., p. 368, ch. I ; R. St. c. 85, § 28 ; Gen. St. 173. § i ; P. St c. 155, § 58.