"The rules of legal decision, among a rude people, are always
very simple; not serving much to guide, far less to control the
feelings of natural equity." 2 Middle Ages, ch. 8, part 2, p. 465.
It is evident that it was in this way, by the free and concurrent
judgments of juries, approving and enforcing certain laws and
rules of conduct, corresponding to their notions of right and
justice, that the laws and customs, which, for the most part,
made up the common law, and were called, at that day, "the
good laws, and good customs," and "the law of the land," were
established. How otherwise could they ever have become
established, as Blackstone says they were, "by long and
immemorial usage, and by their universal reception throughout
the kingdom,"- 1 Blackstone,63-67., when, as the Mirror says,
"justice was so done, that every one so judged his neighbor, by
such judgment as a man could not elsewhere receive in the like
cases, until such times as the customs of the realm, were put in
writing and certainly published?"
The fact that, in that dark age, so many of the principles of
natural equity, as those then embraced in the Common Law,
should have been so uniformly recognized and enforced by juries,
as to have become established by general consent as "the law
of the land;" and the further fact that this "law of the land" was
held so sacred that even the king could not lawfully infringe or
alter it, but was required to swear to maintain it, are beautiful
and impressive illustrations of the troth that men's minds, even
in the comparative infancy of other knowledge, have clear and
coincident ideas of the elementary principles, and the paramount
obligation, of justice. The same facts also prove that the common
mind, and the general, or, perhaps, rather, the universal
conscience, as developed in the untrammeled judgments of juries,
may be safely relied upon for the preservation of individual rights
in civil society; and that there is no necessity or excuse for that
deluge of arbitrary legislation, with which the present age is
overwhelmed, under the pretext that unless laws be made, the
law will not be known; a pretext, by the way, almost universally
used for overturning, instead of establishing, the principles of
justice.
SECTION III. The Oaths of Jurors.
The oaths that have been administered to jurors, in England, and
which are their legal guide to their duty, all (so far as I have
ascertained them) corroborate the idea that the jurors are to try
all cases on their intrinsic merits, independently of any laws
that they deem unjust or oppressive. It is probable that an oath
was never administered to a jury in England, either in a civil or
criminal case, to try it according to law.
Public-domain text, read in full here on John Shaqi.
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