One answer is, that this power, which juries have of judging of
the law, is not a power of absolute decision in all cases. For
example, it is a power to declare imperatively that a man's
property, liberty, or life, shall not be taken from him; but it is
not a power to declare imperatively that they shall be taken from
him.
Magna Carta does not provide that the judgments of the peers shall
be executed; but only that no other than their judgments shall
ever be executed, so far as to take a party's goods, rights, or
person, thereon.
A judgment of the peers may be reviewed, and invalidated, and a
new trial granted. So that practically a jury has no absolute
power to take a party's goods, rights, or person. They have only
an absolute veto upon their being taken by the government. The
government is not bound to do everything that a jury may adjudge.
It is only prohibited from doing anything (that is, from taking
a party's goods, rights, or person) unless a jury have first
adjudged it to be done.
But it will, perhaps, be said, that if an erroneous judgment of
one jury should be reaffirmed by another, on a new trial, it must
then be executed. But Magna Carta does not command even this
although it might, perhaps, have been reasonably safe for it to
have done so for if two juries unanimously affirm the same
thing, after all the light and aid that judges and lawyers can
afford them, that fact probably furnishes as strong a presumption
in favor of the correctness of their opinion, as can ordinarily be
obtained in favor of a judgment, by any measures of a practical
character for the administration of justice. Still, there is
nothing in Magna Carta that compels the execution of even a
second judgment of a jury. The only injunction of Magna Carta
upon the government, as to what it shall do, on this point, is that it
shall "do justice and right," without sale, denial, or delay. But
this leaves the government all power of determining what is
justice and right, except that it shall not consider anything as
justice and right so far as to carry it into execution against
the goods, rights, or person of a party unless it be something
which a jury have sanctioned.
If the government had no alternative but to execute all judgments
of a jury indiscriminately, the power of juries would
unquestionably be dangerous; for there is no doubt that they may
sometimes give hasty and erroneous judgments. But when it is
considered that their judgments can be reviewed, and new trials
granted, this danger is, for all practical purposes, obviated.
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account