Page:Illegality of the trial of John W. Webster - Spooner - 1850.pdf/17

9 alty must be so changed as to conform to the sensibilities of the country, or it must become a dead letter, and criminals go unpunished, and even untried, rather than the trial "by the country" be abolished, and a trial by the government be substituted. Otherwise the statute prevails over the Bill of Rights.

Whenever the statute, that affixes the penalty, and the Bill of Rights, which guarantees a trial "by the country," are found to be practically incompatible with each other, the latter, being the paramount law, must prevail. But the government, by excluding a part of "the country" from the panel, in order that the statute may have effect, virtually say that the statute must prevail over the Bill of Rights.

It may here be mentioned, in passing, that it seems never to have occurred to the government, that if they assume to set up a statutory standard of sensibility for jurors, and to exclude from the panel all men, whose sensibilities rise above that standard, they ought to be equally bound to exclude all whose sensibilities fall below it. But they make no inquisition in that direction.

But, in truth, opposition to capital punishment does not necessarily imply any unusual degree of sensibility. It may result solely from the conviction—founded on the incontestible experience of mankind—that there is no such certainty in human testimony, as to secure the innocent from suffering the penalty designed only for the guilty. In multitudes of cases, where the accused were innocent, the evidence has nevertheless been so strong as to