Page:Illegality of the trial of John W. Webster - Spooner - 1850.pdf/20

12 condemn him, unless by the legal judgment of his peers, or the law of the land."

Here are plainly two clauses in this chapter of Magna Charta—two distinct provisions. The first relates to the arrest and punishment, the other to the conviction. That they are distinct clauses, is proved by the fact that they are separated from each other by the disjunctive "nor." Thus, "No freeman shall be arrested, imprisoned, or deprived of his freehold, or his liberties, or free customs, or be outlawed, or exiled, or in any manner destroyed;" (all the preceding words are but saying that no freeman shall be arrested or punished;)

"nor will we pass upon him, nor condemn him, but by the judgment of his peers, or the law of the land."

It is plain that "the judgment of his peers" goes to the whole question, and to the separate questions, of punishment and guilt.

And this is as it should be. The trial by jury was intended to be—what it has so often been denominated—"the palladium of liberty;" the great bulwark for the protection of individuals against the oppression of the government. But it would be but a partial and imperfect protection against that oppression, if the "judgment" of the jury, as to the degree of punishment to be inflicted, could not be interposed between the convict and the govern-