If any summary, punishment for contempt be ever necessary, (as it probably is not,) beyond exclusion for the time being from the court-room, (which should be done, not as a punishment, but for self-protection, and the preservation of order,) the judgment for it should be given by the jury, (where the trial is before a jury,) and not by the court, for the jury, and not the court, are really the judges. For the same reason, exclusion from the court-room should be ordered only by the jury, in cases when the trial is before a jury, because they, being the real judges and triers of the cause, are entitled, if anybody, to the control of the court-room. In appeal courts, where no juries sit, it may be necessary not as a punishment, but for self-protection, and the maintenance of order that the court should exercise the power of excluding a person, for the time being, from the court-room; but there is no reason why they should proceed to sentence him as a criminal, without his being tried by a jury.
If the people wish to have their rights respected and protected in courts of justice, it is manifestly of the last importance that they jealously guard the liberty of parties, counsel, witnesses, and jurors, against all arbitrary power on the part of the court.
Certainly Mr. Hallam may very well say that "one may doubt whether these (the several eases he has mentioned) were in contemplation of the framers of Magna Carta " that is, as exceptions to the rule requiring that all judgmcnts, that are to be enforced "against a party's goods or person,", be rendered by a jury.
Again, Mr. Hallam says, if the word vel, be rendered by and,, "the meaning will be, that no person shall be disseized, &c., except upon a lawful cause of action.", This is true; but it does not follow that any cause of action, founded on statute only,, is therefore a "lawful, cause of action," within the meaning of legem terrae, , or the Common Law., Within the meaning of the legem terrae, of Magna Carta, nothing but a common law, cause of action is a "lawful", one.
CHAPTER III. ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS
If any evidence, extraneous to the history and language of Magna Carta, were needed. to prove that, by that chapter which guaranties the trial by jury, all was meant that has now been ascribed to it, and that the legislation of the king was to be of no authority with the jury beyond what they chose to allow to it, and that the juries were to limit the punishments to be inflicted, we should find that evidence in various sources, such as the laws, customs, and characters of their ancestors on the continent, and of the northern Europeans generally; in the legislation and customs that immediately succeeded Magna Carta; in the oaths that have at different times been administered to jurors, &c;., &c;. This evidence can be exhibited here but partially. To give it all would require too much space and labor
SECTION I
Weakness of the Regal Authority.
Hughes, in his preface to his translation of Horne's "Mirror of Justices," (a book written in the time of Edward I, 1272 to 1307,) giving a concise view of the laws of England generally, says:
"Although in the Saxon's time I find the usual words of the acts then to have been edictum, (edict,) constitutio, (statute,) little mention being made of the commons, yet I further find that, tum demum Leges vim et vigorem habuerunt, cum fuerunt non modo institutae sed firmatae approbatione communitatis." (The laws had force and vigor only when they were not only enacted, but confirmed by the approval of the community.)