by the name of Common Law; whereas much of what is now
called Common Law has grown up, by usurpation, since the time
of Magna Carta, in palpable violation of the authority of that
charter. He says, "Certainly there are many legal procedures,
besides trial by jury, through which a party's goods or person may
be taken." Of course there are now many such ways, in which a
party's goods or person are taken, besides by the judgment of a
jury; but the question is, whether such takings are not in violation
of Magna Carta.

He seems to think that, in cases of "judgment by default or
demurrer," there is no need of a jury, and thence to infer that
legem terrae may not have required a jury in those cases. But this
opinion is founded on the erroneous idea that juries are required
only for determining contested facts, and not for judging of the
law. In case of default, the plaintif must present a prima facie case
before he is entitled to a judgment; and Magna Carta, (supposing it
to require a jury trial in civil cases, as Mr. Hallam assumes that it
does,) as much requires that this prima facie case, both law and
fact, be made out to the satisfaction of a jury, as it does that a
contested case shall be.

As for a demurrer, the jury must try a demurrer (having the advice
and assistance of the court, of course) as much as any other matter
of law arising in a case.

Mr. Hallam evidently thinks there is no use for a jury, except
where there is a "trial" meaning thereby a contest on matters of
fact. His language is, that "there are many legal procedures,
besides trial by jury, through which a party's goods or person may