Page:Illegality of the trial of John W. Webster - Spooner - 1850.pdf/14

6 and says to one "be sworn," and to another "stand aside," (according as he concurs with, or dissents from, the opinions or feelings of the government), the government manifestly assumes to abolish the trial " by the country," and to institute a new tribunal, constituted solely of persons specially selected by the government, on account of their readiness to carry out the purposes of the government.

But it will between the be said that the difference of opinion, between the government government and the individual— (which constitutes the ground, on which the former excludes the latter from the panel)— is a difference about that, with which the juror has nothing to do, to wit, the punishment, and not the guilt, of the accused person.

There are two answers to this objection

1. The conviction is sought—or rather the guilt or innocence of the accused person is sought to be ascertained —mainly, if not solely, with a view to his punishment, if he be found guilty. Punishment, or no punishment, then, is the practical question at issue. Conviction is but a means, punishment the end. The former has reference, wholly, or nearly so, to the latter. Now, it is to be observed that, in law, means are rarely considered independently They are never authorized, independent of ends. ly of ends. The difference between them, then, is theoretical, rather than practical. Although, therefore, there may be a theoretical distinction between the question of conviction, and the question of punishment, there can hardly be said to be any practical, or even legal, difference between them.