sees fit to 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.[56]

_Grand Jury._--If jurors are bound to enforce all laws passed by the
legislature, it is a very remarkable fact that the oath of grand juries
does not require them to be governed by the laws in finding indictments.
There have been various forms of oath administered to grand jurors; but
by none of them that I recollect ever to have seen, except those of the
States of Connecticut and Vermont, are they sworn to present men
_according to law_. The English form, as given in the essay on Grand
Juries, written near two hundred years ago, and supposed to have been
written by _Lord Somers_, is as follows:

"You shall diligently inquire, and true presentment make, of all such
articles, matters, and things, as shall be given you in charge, and
of all other matters and things as shall come to your knowledge
touching this present service. The king's council, your fellows, and
your own, you shall keep secret. You shall present no person for
hatred or malice; neither shall you leave any one unpresented for
favor, or affection, for love or gain, or any hopes thereof; but in
all things you shall present the truth, the whole truth, and nothing
but the truth, to the best of your knowledge. So help you God."

This form of oath is doubtless quite ancient, for the essay says "our
ancestors appointed" it.--_See Essay_, p. 33-34.

On the obligations of this oath, the essay says:

"If it be asked how, or in what manner, the (grand) juries shall
inquire, the answer is ready, _according to the best of their
understandings_. They only, not the judges, are sworn to sear