Barker v. Jackson ex dem, Henry.

quired to be commenced, with any propriety be considered an appeal from the determination of the commissioners. It is not so called in the act; nor is any mode prescribed for the appeal, or any tribunal designated to which it should be made. But an original suit is required to be brought; and if this is done, and the dissent entered within the time limited by the act, the award has no effect upon the rights of the parties.

That these commissioners were acting in the character of arbitrators, to hear and examine disputes and controversies respecting the titles to these military lands, that should be voluntarily submitted to them, and without any binding ef fect upon the right, unless specially agreed to by the contending parties, is very evident from the proviso to the 3d section of the act; "That if the parties in any case will enter into an agreement before the commissioners, to abide by their determination, then, and in every such case, the award and determination of the commissioners shall be final and conclusive, as to such parties, and their heirs for ever." Such an agreement entered into before a Court, in the exercise of judicial inquiry into the rights of parties, would certainly be an anomaly in the administration of justice.

That the award per se has no binding effect on the rights of parties, is further illustrated by the provisions of the 7th section, which declares that, "if the party dissenting shall be in the actual possession of the premises, then the award so dissented from shall, as to the party dissenting, be considered of no effect. And unless the party in whose favour such award shall be made, shall within three years commence a suit either at law or in equity, to recover the land, or to establish his right to the same, and shall prosecute such suit with effect; then such person in whose favour such award is made, and his heirs, shall be for ever barred of all right, title, or claim, to the land so awarded." Here again, even the party

Barker v. Jackson ex dem. Henry.

having the award, is required to bring a suit to establish his right, and if he neglects so to do for three years, he is barred of all right.

The range of examination which the commissioners were to make, shows they were not acting as a Court, and judging upon the rights of parties litigating before them; for where no adverse claim appeared, they were required to make an entry to that effect in their books. They could not be considered as arbitrators, except in the cases coming under the proviso to the 3d section of the act; and are therefore denominated commissioners, to hear, examine, award, and determine, disputes and controversies respecting the titles to these lands. The powers here given are adapted to the various objects of inquiry committed to the commissioners.

The peculiar state and condition of the titles to these military lands, rendered some special legislation on the subject indispensable. The evils existing, appear from the recitals in one of the laws in relation to these lands, (which required all deeds which had been given for the same, to be deposited in a public office :) "Whereas it is represented to the legislature, that many frauds have been committed respecting the titles to the lands granted by this state as bounty lands to the officers and troops, &c. by forging and antedating conveyances, and by conveying the said lands to different persons, and by various other contrivances, so that it has become very difficult to discover in whom the legal title to some of the said lands is now vested," &c.

To meet these evils as far as was practicable, the law now in question, among others, was passed; not instituting a Court for this special purpose ;-the existing Courts of Justice in the state were amply sufficient, so far as mere judicial proceedings were necessary;-but commissioners were appointed to hear, and examine into, the disputes and controversies re

e Act Sth Jan, 1794.

Barker v. Jackson ex dem. Henry.

specting these lands; as a kind of preliminary step to the commencement of a suit to try the right. Their award or determination, however, had no influence upon the right, unless the parties entered into an agreement before them, that it should have a binding effect. A dissent suspended the award, and it became operative only in case of neglect to bring a suit within the time limited; and of course, the act is nothing more in its application to these lands than a statute of limitations.

If these commissioners did not form a Court within the constitutional, and common law sense of such a tribunal; it was clearly no violation of the constitution, that a jury was not called in to pass upon the matters of fact submitted to the commissioners. The constitution secures the trial by jury in such cases only, where it had been used in the colony of New-York. So far as these commissioners may be considered arbitrators, a jury would not be required; no such usage was ever heard of under the colonial government, and so far as respects their powers other than those of arbitrators, the commissioners formed a new tribunal, unknown to the colonial government; and no trial by jury could of course ever have been used in such case under that government.

A still more untenable objection against this law has been taken, as being in violation of the 13th article of the constitution; which declares, that "no member of this state shall be disfranchised, or deprived of any of the rights and privileges secured to the subjects of this state by this constitution, unless by the law of the land, or the judgment of his peers."

The objection is, that the law in question is not a law of the land, because it is not general and extending over the whole state; but is confined to lands in the county of Onondaga. There is certainly no colour for this objection requiring any serious consideration. If well founded, it would strike at a great portion of the statutes of the state; and if

Barker v. Jackson ex dem. Henry.

this is only a statute of limitations, no one is deprived by the award, or has his freehold taken away without the judgment of his peers. All these rights remain untouched, if the suit be brought within the time limited by the act.

And this is an answer to the objection, that the right of trial by jury as secured by the constitution of the United States, is taken away. The proceedings of the commissioners is not a trial within the meaning of the constitution. The act expressly requires a suit to be brought to establish the right and where it is a suit at law, the right of a trial by jury remains unimpaired by this law.

Nor does this act violate that provision in the constitution of the United States, which prohibits the states from passing any law impairing the obligations of contracts. Statutes of limitation relate to the remedy, and not to the obligation of a contract. This distinction is well settled by the decision of the Supreme Court of the United States; and that the state legislature may pass such laws, under such modification as their wisdom should direct, without infringing the constitution of the United States.

No objection can be made to this law, because it does in some measure affect existing rights: It is not retrospective, and does not take away from a party any existing right: It only hastens him in the assertion of such right. But if he brings his suit within the time limited, his title is tried in the same manner as if this law had never been passed. This may be thought to be a rigorous statute of limitations, but that was a matter resting in the sound discretion of the legislature; and with which the Courts of Justice have no conThe condition of the titles to the land in the military tract, called for some strong legislative measures.

cern.

Most statutes of limitation do in some measure affect existing rights. Among others, the law of this state limiting g 4 Wheat. 206.

f Art. 1. sec. 10.

Barker v. Jackson ex dem. Henry.

the period for bringing claims and prosecutions against forfeited estates, is made in terms to apply to existing rights. It declares, that no persons who now have any estate, right, or title, to land supposed to have been forfeited, &c., shall, after the expiration of five years from the passing of the act, sue, or maintain any action for the recovery of the same. So the act requiring all deeds for military bounty lands to be deposited in the clerk's office, though not a statute of limitation, yet it applies to existing deeds. It declares, that all deeds heretofore made for such lands, shall within a limited time be so deposited; and that all deeds not deposited, shall be adjudged fraudulent and void: And many other statutes of a like character might be referred to. Yet the validity of these laws have not been questioned because they affect existing rights: They are all prospective in their application to such rights, and the effect upon them grows out of a neglect to comply with some new duty, required thereafter to be performed.

I am accordingly of opinion, that the judgment of the District Court be reversed, and judgment entered for the defendant in the Court below.

h 28 March, 1797, 1 L. N. Y. 128.