Page:State v. Johnson.pdf/25

26 Ark.]  1870.]   office; and in cases of this character, where an issue of fact was to be determined by the testimony of witnesses, we have not been able to find any case in which a court, since the beginning of the days of English liberty, upon direct application, refused a litigant the right of trial by jury.

Yet we rest our conclusions not so much upon these rulings, as upon the fundamental maxims of free institutions and popular governments; upon principles recognized as the foundation of civil liberty, and, beyond memory, ingrafted upon the common law of England, and made a part of the frame-work of the original law of the American States, and that of the Union of those States. That venerable author, Sir William Blackstone, in speaking of the value of the trial by jury, says: "In Magna Charta it is more than once insisted on as the principal bulwark of our liberties." Vol. 2, 350. Further on he says: "Upon these accounts the trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law, and it has so great an advantage over others in regulating civil property, how much must that advantage be heightened when it is applied to criminal cases? But this we must refer to the ensuing book of these Commentaries, only observing, for the present, that it is the most transcendent privilege which any subject can enjoy or wish for; that he cannot be affected, either in his property, his liberty or his person, but by the unanimous consent of twelve of his neighbors and equals,"  "and therefore, a celebrated French writer, who concludes, that because Rome, Sparta and Carthage have lost their liberties, therefore, those of England, in time, must perish, should have recollected that Rome, Sparta and Carthage, at the time when their liberties were lost, were strangers to the trial by jury. It is, therefore, upon the whole, a duty which every man owes to his country, his friends, his posterity and himself, to maintain to the utmost of his power, this valuable constitution in all its rights; and above all, to guard with the most jealous circumspection,