Page:State v. Johnson.pdf/21

26 Ark.]  1870.]    filed praying for a trial, of the issue of fact herein joined, by a jury.

We regard the right of trial by jury, in actions at law, as one of those fundamental principles of liberty that may be claimed by any suitor, when his right of property, liberty ar character is put in issue before a court at law.

Our Bill of Rights, section 61, declares that "the right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy."

It has been assumed, in argument, that this is a peculiar action, and that, while this court is, by the Constitution, clothed with power to issue this writ, and to hear and determine the same, there is no authority given or mode prescribed by which a jury can be brought into court to try the issue of fact, and that it. necessarily follows that the court must determine all question ,: of hoth lnw and fact. This by no means follows. If it be true that this court has jurisdiction to hear and determine this cause, then the ordinary legal means, necessary to ascertain the facts, follow as an incident to such power. See State v. Morrill, 16 Ark., 384; Fletcher v. Oliver, 25 Ark., 298.

If, to say no statute has directed how we shall procure a jury, is sufficient to deprive the respondent of a trial by jury, is it not equally forcible to say there is no statute directing in what form process of summons shall be issued, to whom directed, by whom, how and at what time it shall be served, when and in what manner returned? and, therefore, the court cannot take jurisdiction of the respondent and decide his case. Yet, by an appeal to the inherent powers of the court, and its just discretion, we readily formed a writ, quickly decided the sheriff should execute it, and as readily determined how it should be returned, and that, thereby, we had jurisdiction of the respondent and his case.

If this discretion was proper, why cannot the same inherent powers and judicious discretion direct a jury returned to the bar to decide the facts in the cause upon which the court