Page:State v. Johnson.pdf/10

290   Rh  , or deprived of his free hold, except by the regular judgment of his peers, or the law of the land."

Chief Justice R, after hearing these arguments, in a very able and elaborate opinion, held that the court had jurisdiction, but he nowhere states or gives any expression upon the argument presented, and it is fairly inferable that the exercise of jurisdiction, in his opinion, did not contravene the right of trial by jury.

It will be admitted, by those of the profession, who are familiar with the practice of the law; that the proceedings in which a jury was not required at common law, that the clause of the Constitution, declaring the right of trial by jury, shall remain inviolate, does not give it.

When the Constitution was framed, adopted and ratified by the framers and the people, it was well known that this court was not provided with a jury, or the means to procure it, and yet, with this knowledge before them, they gave this court jurisdiction in mandamus and quo warranto, with power to hear and determine the same. That the people, themselves, had not only the right, but power to provide that this court should determine questions of fact, arising on the writs, in which it exercises jurisdiction, we presume will not be denied.

Whether the right of trial by jury ever existed as a matter of right in quo warranto, is not a matter easily determined, by direct precedent. The respondent claims that such is the uniform practice, not only in this country, but in England, and in support of that position, quite a number, of authorities have been submitted to our consideration. On a careful examination of the authorities cited, we have found them to apply to informations in the nature of a quo warranto, the former being a criminal prosecution, and the latter a proceeding upon a writ, in the nature of a writ of right, which partakes more of what is now known as a summary proceeding, than a "case at law."

The right of trial by jury, at common law, never existed in equitable proceedings, in admiralty or summary proceedings, or proceedings against officers of a civil nature, nor did it