Page:Illegality of the trial of John W. Webster - Spooner - 1850.pdf/19

11 supposition that the question of punishment, and the question of guilt, are distinct—and that, in strict law, the jury are judges only of the latter. And I take it for granted that it has been shown, that even under that supposition, men cannot be excluded from the panel by the government, in order that the will of the government, (as expressed in its criminal code), may escape the influence and the veto of that moral law, and that law of human nature, which require and compel all men, jurors as well as others, to regard more or less the consequences that are to follow their actions. If the criminal code be practically inconsistent with that law of human nature, and theoretically inconsistent with the moral law, as this is understood by any considerable portion of "the country," the code must give way to, or be made to conform to, those higher laws, or the "trial by the country " must be abandoned.

But, in fact, the position is not a true one, that the jury have legally nothing to do with the question of punishment, but only with the question of guilt. The language of Magna Charta is equally explicit on the point of punishment, as on that of conviction; and it provides as clearly that a man shall not be punished, but by "the judgment of his peers," as that he shall not be condemned but by the same "judgment." These are the words of Magna Charta

"No freeman shall be arrested, or imprisoned, or deprived of his freehold, or his liberties, or free customs, or be outlawed, or exiled, or in any manner destroyed; nor will we pass upon him, nor