This arbitrary power, which has been usurped and exercised by judges to punish for contempt, has undoubtedly had much to do in subduing counsel into those servile, obsequious, and cowardly habits, which so universally prevail among them, and which have not only cost so many clients their rights, but have also cost the people so many of their liberties. If any _summary_ punishment for contempt be ever necessary, (as it probably is not,) beyond exclusion for the time being from the court-room, (which should be done, not as a punishment, but for self-protection, and the preservation of order,) the judgment for it should be given by the jury, (where the trial is before a jury,) and not by the court, for the jury, and not the court, are really the judges. For the same reason, exclusion from the court-room should be ordered only by the jury, in cases when the trial is before a jury, because they, being the real judges and triers of the cause, are entitled, if anybody, to the control of the court-room. In appeal courts, where no juries sit, it may be necessary--not as a punishment, but for self-protection, and the maintenance of order--that the court should exercise the power of excluding a person, for the time being, from the court-room; but there is no reason why they should proceed to sentence him as a criminal, without his being tried by a jury. If the people wish to have their rights respected and protected in courts of justice, it is manifestly of the last importance that they jealously guard the liberty of parties, counsel, witnesses, and jurors, against all arbitrary power on the part of the court. Certainly Mr. Hallam may very well say that "one may doubt whether these (the several cases he has mentioned) were in contemplation of the framers of Magna Carta"--that is, as exceptions to the rule requiring that all judgments, that are to be enforced "_against a party's goods or person_," be rendered by a jury. Again, Mr. Hallam says, if the word _vel_ be rendered by _and_, "the meaning will be, that no person shall be disseized, &c., _except upon a lawful cause of action_." This is true; but it does not follow that any cause of action, founded on _statute only_, is therefore a "_lawful_ cause of action," within the meaning of _legem terræ_, or the _Common Law_. Within the meaning of the _legem terræ_ of Magna Carta, nothing but a _common law_ cause of action is a "_lawful_" one.] [Footnote 33: Hallam says, "It appears as if the ordeal were permitted to persons already convicted by this verdict of a jury."--_2 Middle Ages_, 446, _note_.] CHAPTER III. ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS.