Another reason why Magna Carta makes the discretion and
consciences of juries paramount to all legislation in civilsuits, is,
that if legislation were binding upon a jury, the jurors (by reason
of their being unable to read, as jurors in those days were, and
also by reason of many of the statutes being unwritten, or at least
not so many copies written as that juries could be supplied with
them) would have been necessitated at least in those courts in
which the king's justices sat to take the word of those justices
as to what the laws of the king really were. In other words, they
would have been necessitated to take the law from the court, as
jurors do now.
Now there were two reasons why, as we may rationally suppose,
the people did not wish juries to take their law from the king's
judges. One was, that, at that day, the people probably had sense
enough to see, (what we, at this day, have not sense enough to
see, although we have the evidence of it every day before our
eyes,) that those judges, being dependent upon the legislative
power, (the king,) being appointed by it, paid by it, and
removable by it at pleasure, would be mere tools of that power,
and would hold all its legislation obligatory, whether it were
just or unjust. This was one reason, doubtless, why Magna Carta
made juries, in civil suits, paramount to all instructions of the
king's judges. The reason was precisely the same as that for
making them paramount to all instructions of judges in criminal
suits, viz., that the people did not choose to subject their
rights of property, and all other rights involved in civil suits,
to the operation of such laws as the king might please to enact.
It was seen that to allow the king's judges to dictate the law to
the jury would be equivalent to making the legislation of the
king imperative upon the jury.
Another reason why the people did not wish juries, in civil
suits, to take their law from the king's judges, doubtless was,
that, knowing the dependence of the judges upon the king, and
knowing that the king would, of course, tolerate no judges who
were not subservient to his will, they necessarily inferred; that
the king's judges would be as corrupt, in the administration of
justice, as was the king himself, or as he wished them to be. And
how corrupt that was, may be inferred from the following
historical facts.
Hume says:
Public-domain text, read in full here on John Shaqi.
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