It is only by inference that
we come to the conclusion that there must be a trial by jury. Since
the jury alone can give the judgment, or sentence, we infer that
they must try the case; because otherwise they would be
incompetent, and would have no moral right, to give judgment.
They must, therefore, examine the grounds, (both of law and fact,)
or rather try the grounds, of every action whatsoever, whether it be
decided on "default, demurrer," or otherwise, and render their
judgment, or sentence, thereon, before any judgment can be a legal
one, on which "to take a party's goods or person." In short, the
principle of Magna Carta is, that no judgment can be valid against
a party's goods or person, (not even a judgment for costs,) except a
judgment rendered by a jury. Of course a jury must try every
question, both of law and fact, that is involved in the rendering of
that judgment. They are to have the assistance and advice of the
judges, so far as they desire them; but the judgment itself must be
theirs, and not the judgment of the court.
Pages:
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122