Furthemore, it would be absurd and inconsistent to make
a jury paramount to legislation in criminal suits, and
subordinate to it in civil suits; because an individual, by
resisting the execution of a civil judgment, founded upon an
unjust law, could give rise to a criminal suit, in which the jury
would be bound to hold the same law invalid. So that, if an
unjust law were binding upon a jury in civil suits, a defendant,
by resisting the execution of the judgment, could, in effect,
convert the civil action into a criminal one, in which the jury
would be paramount to the same legislation, to which, in the
civil suit, they were subordinate. In other words, in the
criminal suit, the jury would be obliged to justify the defendant
in resisting a law, which, in the civil suit, they had said he
was bound to submit to.
To make this point plain to the most common mind suppose a
law be enacted that the property of A shall be given to B. B
brings a civil action to obtain possession of it. If the jury, in this
civil suit, are bound to hold the law obligatory, they render a
judgment in favor of B, that he be put in possession of the
property; thereby declaring that A is bound to submit to a law
depriving him of his property. But when the execution of that
judgment comes to be attempted that is, when the sheriff comes
to take the property for the purpose of delivering it to B A
acting, as he has a natural right to do, in defence of his
property, resists and kills the sheriff. He is thereupon indicted
for murder. On this trial his plea is, that in killing the
sheriff, he was simply exercising his natural right of defending
his property against an unjust law. The jury, not being bound, in
a criminal case, by the authority of an unjust law, judge the act
on its merits, and acquit the defendant thus declaring that he
was not bound to submit to the same law which the jury, in the
civil suit, had, by their judgment, declared that he was bound to
submit to. Here is a contradiction between the two judgments. In
the civil suit, the law is declared to be obligatory upon A; in
the criminal suit, the same law is declared to be of no
obligation.
It would be a solecism and absurdity in government to allow
such consequences as these. Besides, it would be practically
impossible to maintain government on such principles; for no
government could enforce its civil judgments, unless it could
support them by criminal ones, in case of resistance. A jury must
therefore be paramount to legislation in both civil and criminal
cases, or in neither. If they are paramount in neither, they are
no protection to liberty. If they are paramount in both, then all
legislation goes only for what it may chance to be worth in the
estimation of a jury.
Public-domain text, read in full here on John Shaqi.
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