But this
opinion is founded on the erroneous idea that juries are required
only for determining contested facts, and not for judging of the
law. In case of default, the plaintif must present a prima facie case
before he is entitled to a judgment; and Magna Carta, (supposing it
to require a jury trial in civil cases, as Mr. Hallam assumes that it
does,) as much requires that this prima facie case, both law and
fact, be made out to the satisfaction of a jury, as it does that a
contested case shall be.
As for a demurrer, the jury must try a demurrer (having the advice
and assistance of the court, of course) as much as any other matter
of law arising in a case.
Mr. Hallam evidently thinks there is no use for a jury, except
where there is a "trial" meaning thereby a contest on matters of
fact. His language is, that "there are many legal procedures,
besides trial by jury, through which a party's goods or person may
be taken." Now Magna Carta says nothing of trial by jury; but only
of the judgment, or sentence, of a jury.
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