The Act of Assembly of Maryland of 1793, ch. 30, incorporating
the Bank of Columbia and giving to the corporation a summary
process by execution in the nature of an attachment against its
debtors who have by an express consent in writing made the bonds,
bills, or notes by them drawn or endorsed negotiable at
the bank is not repugnant to the Constitution of the United States
or of Maryland.
But the last provision in the act of incorporation, which gives
this summary process to the bank, is no part of its corporate
franchises, and may be repealed of altered at pleasure by the
legislative will.
This was a proceeding in the court below under the Act of
Assembly of Maryland of 1793, c. 30, incorporating the Bank of
Columbia, the 14th section of which is in these words:
"And whereas it is absolutely necessary that debts due to the
said bank should be punctually paid to enable the directors to
calculate with certainty and precision on meeting the demands that
may be made upon them, be it enacted that whenever any person or
persons are indebted to the said bank for moneys borrowed by them
or for bonds, bills, or notes
Page 17 U. S. 236
given or endorsed by them with an express consent in writing
that they may be made negotiable at the said bank, and shall refuse
or neglect to make payment at the time the same become due, the
president shall cause a demand in writing on the person of the said
delinquent or delinquents, having consented as aforesaid, or if not
to be found, have the same left at his last place of abode, and if
the money so due shall not be paid within ten days after such
demand made or notice left at his last place of abode as aforesaid,
it shall and may be lawful for the president, at his election, to
write to the clerk of the general court or of the county in which
the said delinquent or delinquents may reside or did at the time he
or they contracted the debt reside, and send to the said clerk the
bond, bill, or note due, with proof of the demand made as
aforesaid, and order the said clerk to issue
capias ad
satisfaciendum, fieri facias, or attachment by way of
execution, on which the debt and costs may be levied by selling the
property of the defendant for the sum or sums of money mentioned in
the said bond, bill, or note, and the clerk of the general court
and the clerks of the several county courts are hereby respectively
required to issue such execution or executions, which shall be made
returnable to the court whose clerk shall issue the same which
shall first sit after issuing thereof and shall be as valid and as
effectual in law to all intents and purposes as if the same had
issued on judgments regularly obtained in the ordinary course of
proceeding in the said court, and such execution or executions
shall not be liable to be stayed or delayed by any supersedeas,
writ of error,
Page 17 U. S. 237
appeal, or injunction from the chancellor, provided always that
before any execution shall issue as aforesaid, the president of the
bank shall make an oath (or affirmation, if he shall be of such
religious society as allowed by this state to make affirmation)
ascertaining whether the whole or what part of the debt due to the
bank on the said bond, bill, or note is due, which oath or
affirmation shall be filed in the office of the clerk of the court
from which the execution shall issue, and if the defendant shall
dispute the whole or any part of the said debt on the return of the
execution, the court before whom it is returned shall and may order
an issue to be joined and trial to be had in the same court at
which the return is made and shall make such other proceedings that
justice may be done in the speediest manner."
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.
Page 17 U. S. 238
The court below quashed the execution upon these grounds, and
the cause was brought by writ of error to this Court.
Page 17 U. S. 240
JOHNSON, JUSTICE, delivered the opinion of the Court.
In this case, the defendant contended that his right to a trial
by jury, as secured to him by the Constitution of the United States
and of the State of Maryland, has been violated. The question is
one of the deepest interest, and if the complaint be well founded,
the claims of the citizen on the protection of this Court are
peculiarly strong.
The 7th Amendment of the Constitution of the United States is in
these words:
Page 17 U. S. 241
"In suits at common law where the value in controversy shall
exceed twenty dollars, the right of the trial by jury shall be
preserved, and no fact tried by a jury shall be otherwise
reexamined in any court of the United States than according to the
rules of the common law."
The 21st article of the Declaration of Rights of the State of
Maryland is in the words of Magna Charta.
"No freeman ought to be taken or imprisoned, &c., or
deprived of his life, liberty or property but by the judgment of
his peers or by the law of the land."
The act by which this bank is incorporated gives a summary
remedy for the recovery of notes endorsed to it, provided those
notes be made expressly negotiable at the bank in their creation.
This is a note of that description, but it is contended that the
act authorizing the issuing of an execution either against the body
or effects of the debtor without the judgment of a court upon the
oath and demand of the president of the bank is so far a violation
of the rights intended to be secured to the individual under the
Constitution of the United States and of the State of Maryland. And
as the clause in the act of incorporation under which this
execution issued is express as to the courts in which it is to be
executed, it is further contended that there is no provision in the
law of Congress for executing it in this district.
We readily admit that the provisions of this law are in
derogation of the ordinary principles of private
Page 17 U. S. 242
rights, and as such must be subjected to a strict construction,
and under the influence of this admission will proceed to consider
the several questions which the case presents.
The laws of the State of Maryland derive their force in this
district under the first section of the Act of Congress of 27
February, 1801. But we cannot admit that the section which gives
effect to those laws amounts to a reenactment of them so as to
sustain them under the powers of exclusive legislation given to
Congress over this District. The words of the act are
"The laws of the State of Maryland as they now exist shall be
and continue in force in that part of the said District which was
ceded by that state to the United States."
These words could only give to those laws that force which they
previously had in this tract of territory under the laws of
Maryland, and if this law was unconstitutional in that state, it
was void there and must be so here. It becomes, then, unnecessary
to examine the question whether the powers of Congress be despotic
in this District, or whether there are any, and what, restrictions
imposed upon it, by natural reason, the principles of the social
compact, or constitutional provisions.
Was this act void, as a law of Maryland? If it was, it must have
become so under the restrictions of the constitution of the state
or of the United States. What was the object of those restrictions?
It could not have been to protect the citizen from his own acts,
for it would then have operated as a restraint upon his rights; it
must have been against the acts
Page 17 U. S. 243
of others. But to constitute particular tribunals for the
adjustment of controversies among them, to submit themselves to the
exercise of summary remedies, or to temporary privation of rights
of the deepest interest are among the common incidents of life.
Such are submissions to arbitration; such are stipulation bonds,
forthcoming bonds, and contracts of service. And it was with a view
to the voluntary acquiescence of the individual -- nay, the
solicited submission to the law of the contract -- that this remedy
was given. By making the note negotiable at the Bank of Columbia,
the debtor chose his own jurisdiction; in consideration of the
credit given him, he voluntarily relinquished his claims to the
ordinary administration of justice and placed himself only in the
situation of an hypothecater of goods, with power to sell on
default, or a stipulator in the admiralty, whose voluntary
submission to the jurisdiction of that court subjects him to
personal coercion.
It is true, cases may be supposed in which the policy of a
country may set bounds to the relinquishment of private rights. And
this Court would ponder long before it would sustain this action if
we could be persuaded that the act in question produced a total
prostration of the trial by jury, or even involved the defendant in
circumstances which rendered that right unavailing for his
protection. But a power is reserved to the judges to make such
rules and orders "as that justice may be done," and as the
possession of judicial power imposes an obligation to exercise it,
we flatter ourselves that in practice, the evils so eloquently
dilated on by the counsel do not exist.
And if
Page 17 U. S. 244
the defendant does not avail himself of the right given him of
having an issue made up, and the trial by jury, which is tendered
to him by the act, it is presumable that he cannot dispute the
justice of the claim. That this view of the subject is giving full
effect to the Seventh Amendment of the Constitution is not only
deducible from the general intent but from the express wording of
the article referred to. Had the terms been that "the trial by jury
shall be preserved," it might have been contended that they were
imperative, and could not be dispensed with. But the words are that
the right of trial by jury shall be preserved, which places it on
the foot of a
lex pro se introducto, and the benefit of it
may therefore be relinquished. As to the words from Magna Charta,
incorporated into the Constitution of Maryland after volumes spoken
and written with a view to their exposition, the good sense of
mankind has at length settled down to this: that they were intended
to secure the individual from the arbitrary exercise of the powers
of government, unrestrained by the established principles of
private rights and distributive justice. With this explanation,
there is nothing left to this individual to complain of. What he
has lost he has voluntarily relinquished, and the trial by jury is
open to him either to arrest the progress of the law in the first
instance or to obtain redress for oppression if the power of the
bank has been abused. The same answer is equally applicable to the
argument founded on the third article of the Maryland
Constitution.
In giving this opinion, we attach no importance to
Page 17 U. S. 245
the idea of this being a chartered right in the bank. It is the
remedy, and not the right, and as such we have no doubt of its
being subject to the will of Congress. The forms of administering
justice and the duties and powers of courts as incident to the
exercise of a branch of sovereign power must ever be subject to
legislative will, and the power over them is inalienable, so as to
bind subsequent legislatures. This subject came under consideration
in the case of
Young v. Bank of
Alexandria, 4 Cranch 384, and it was so
decided.
The next question is whether the courts of this district are
empowered to carry into effect the summary remedy given to the bank
in this case. The law requires the application for process to be
made to the clerk of the general court, or of the county court for
the county in which the delinquent resides, and obliges such clerk
to issue the execution, returnable to the court to which such clerk
is attached. Unless, therefore, the clerk of this district is
vested with the same power and the courts with jurisdiction over
the case, the bank would not have the means of resorting to this
remedy.
The third section of the Act of February, 1801, does not vest in
the courts that power. It only clothes the courts and judges of
this district with the jurisdiction and powers of the circuit
courts and judges of the United States. But we are of opinion that
this defect is supplied by the fifth section of the same act, taken
in connection with the fifth
Page 17 U. S. 246
section of the Act of March 3, 1801. By the former section, the
courts of the district are vested generally with jurisdiction of
all causes in law and equity, and by the latter the clerks of the
circuit court are required to perform all the services then
performed by the clerks of the counties of the State of Maryland.
Among those services is that of instituting a judicial proceeding
in favor of this bank, and the return of that process is required
to be to the court with which such clerk is connected. That court
has jurisdiction of all cases in law arising in this district, and
thus the suit is instituted by the proper officer, by writ
returnable to a court having a jurisdiction communicated by terms
which admit of no exception.
Upon the whole we are of opinion that the law is constitutional
and the jurisdiction vested in the courts of the district, and
therefore that the judgment must be reversed and the cause remanded
for further proceedings.
Judgment reversed.
