And this oath does not require or permit a jury to
be so swerved.
In criminal cases, Blackstone says the oath of the jury in England
is:
"Well and truly to try, and true deliverance make, between our
sovereign lord, the king, and the prisoner whom they have in
charge, and a true verdict to give according to the evidence." 4
Blackstone, 355.
"The issue" to be tried, in a criminal case, is "guilty," or "not
guilty." The laws passed by a legislature can rarely, if ever, have anything
to do with this issue. "Guilt" is an intrinsic quality of actions, and can
neither be created, destroyed, nor changed by legislation. And no tribunal
that attempts to try this issue can have any moral right to declare a man
guilty, for an act that is intrinsically innocent, at the bidding of a
legislature, any more than at the bidding of anybody else. And this
oath does not require or permit a jury to do so.
The words, "according to the evidence," have doubtless been
introduced into the above oaths in modern times.
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