They are unquestionably in
violation of the Common Law, and of Magna Carta, if by them be
meant such evidence only as the government sees fit ft allow to go to the
jury. If the government can dictate the evidence, and require the jury to
decide according to that evidence, it necessarily dictates the conclusion to
which they must arrive. In that case the trial is really a trial by the
government, and not by the jury. The jury cannot try an issue, unless they
determine what evidence shall be admitted. The ancient oaths, it will be
observed, say nothing about "according to the evidence." They obviously
take it for granted that the jury try the whole case; and of course that they
decide what evidence shall be admitted. It would be intrinsically an
immoral and criminal act for a jury to declare a man guilty, or to declare
that one man owed. money to another, unless all the evidence were
admitted, which they thought ought to be admitted, for ascertaining the truth.
[25]
Grand Jury.
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