Besides, if his laws were to be authoritative with the jury, why
should John indignantly refuse, as at first he did, to grant the
charter, (and finally grant it only when brought to the last
extremity,) on the ground that it deprived him of all power, and
left him only the name of a king? He evidently understood that the
juries were to veto his laws, and paralyze his power, at discretion,
by forming their own opinions as to the true character of the
offences they were to try, and the laws they were to be called on to
enforce; and that "the king wills and commands" was to have no
weight with them contrary to their own judgments of what was
intrinsically right.[9]
The barons and people having obtained by the charter all the
liberties they had demanded of the king, it was further provided by
the charter itself that twenty-fie barons should be appointed by the
barons, out of their number, to keep special vigilance in the
kingdom to see that the charter was observed, with authority to
make war upon the king in case of its violation. The king also, by
the charter, so far absolved all the people of the kingdom from
their allegiance to him, as to authorize and require them to swear
to obey the twenty-five barons, in case they should make war upon
the king for infringement of the charter. It was then thought by the
barons and people, that something substantial had been done for
the security of their liberties.
This charter, in its most essential features, and without any
abatement as to the trial by jury, has since been confirmed more
than thirty times; and the people of England have always had a
traditionary idea that it was of some value as a guaranty against
oppression. Yet that idea has been an entire delusion, unless the
jury have had the right to judge of the justice of the laws they were
called on to enforce.
SECTION II.
The Language of Magna Carta
The language of the Great Charter establishes the same point that
is established by its history, viz., that it is the right and duty of the
jury to judge of the justice of the laws.
The chapter guaranteeing the trial by jury is in these words:
"Nullus liber homo capiatur, vel imprisonetur, aut disseisetur, aut
utlagetor, aut exuletur, aut aliquo modo destruatur; nec super eum
ibimus, nec super eum mittemus, nisi per legale judicium parium
suorum, vel per legem terrae."[10]
The corresponding chapter in the Great Charter, granted by Henry
III, (1225) and confirmed by Edward I, (1297,) (which charter is
now considered the basis of the English laws and constitution,) is
in nearly the same words, as follows:
"Nullus liber homo capiatur, vel imprisonetur, aut disseisetur de
libero tenemento, vel libertatibus, vel liberis consuetudinibus suis,
aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super
eum ibimus, nec super eum mittemus, nisi per legale judicium
parium suorum, vel per legem terrae."
The most common translation of these words, at the present day, is
as follows:
Public-domain text, read in full here on John Shaqi.
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