Page:State v. Johnson.pdf/9

26 Ark.]  1870.]    urge, that this provision of the Bill of Rights entitles him to a jury to pass upon the question of fact.

It has been truly said that "a Constitution is not the beginning of government," and that it is adopted with a knowledge that it is, and was made in harmony and consonance with the condition of things existing at the time of its adoption.

In the Constitution of 1836, the 6th section of the Bill of Rights, declares that, "the right of trial by jury should remain inviolate." It will be observed that the Constitution of 1868, in addition to declaring "the right of trial by jury shall remain inviolate," adds the words, "and shall extend to all cases at law, without regard to the amount in controversy." Have the words added, any meaning, or are they merely senseless things? Why are they added? Shall these words be treated as a redundant expression, in order to bring this proceeding within the rule contended for by the respondent?

In the case of the State v. Ashley, (1 Ark. 284,) the point was made, in argument, by Judge Watkins, who was attorney in that case, that the court could not exercise original jurisdiction in quo warranto, because, in the determination of the proceeding, matters of fact usually, and almast necessarily arise; and that in the exercise of the power to hear and determine the same, inasmuch as this court had not been provided with a jury, it being a well settled principle of the law, that whether the jurisdiction was original or appellate, the jurisdiction could not be exercised without the intervention of an act of the Legislature, would contravene that provision of the Bill of Rights, which asserts "the right of trial by jury shall remain inviolate."

In response to this position Mr. Pike said, it "hardly merits notice." He further states that the right of trial hy jury was the right of trial, "existing at the adoption of the Constitution," which was, that "every man shall be tried by his peers of the vicinage," and that no free man shall be arrested or