The following provisions, in the Magna Carta of John, illustrate
the custom of referring the most important matters of a civil
nature, even where the king was a party, to the determination of
the peers, or of twelve men, acting by no rules but their own
consciences. These examples at least show that there is nothing
improbable or unnatural in the idea that juries should try all
civil suits according to their own judgments, independently of
all laws of the king.
Chap. 65. "If we have disseized or dispossessed the Welsh of any
lands, liberties, or other things, without the legal judgment of
their peers, they shall be immediately restored to them. And if
any dispute arises upon this head, the matter shall be determined
in the Marches, [1] by the judgment of their peers," &c;.
Chap. 68. " We shall treat with Alexander, king of Scots,
concerning the restoring of his sisters, and hostages, and rights
and liberties, in the same form and manner as we shall do to the
rest of our barons of England; unless by the engagements, which
his father William, late king of Scots, hath entered into with
us, it ought to be otherwise; and this shall be left to the
determination of his peers in our court."
Chap. 56. "All evil customs concerning forests, warrens, and
foresters, warreners, sheriffs, and their officers, rivers and
their keepers, shall forthwith be inquired into in each county,
by twelve knights of the same shire, chosen by the most
creditable persons in the same county, and upon oath; and within
forty days after the said inquest, be utterly abolished, so as
never to be restored."
There is substantially the same reason why a jury ought to judge
of the justice of laws, and hold all unjust laws invalid, in
civil suits, as in criminal ones. That reason is the necessity of
guarding against the tyranny of the government. Nearly the same
oppressions can be practised in civil suits as in criminal ones.
For example, individuals may be deprived, of their liberty, and
robbed of their property, by judgments rendered in civil suits,
as well as in criminal ones. If the laws of the king were
imperative upon a jury in civil suits, the king might enact laws
giving one man's property to another, or confiscating it to the
king himself, and authorizing civil suits to obtain possession of
it. Thus a man might be robbed of his property at the arbitrary
pleasure of the king. In fact, all the property of the kingdom
would be placed, at the arbitrary disposal of the king, through
the judgments of juries in civil suits, if the laws of the king
were imperative upon a jury in such suits. [2]
Public-domain text, read in full here on John Shaqi.
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