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.
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