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justify, and even to require, a conviction, if the principle be admitted that human testimony is, in its nature, sufficiently certain to justify or require a conviction, that is to be followed by the penalty of death. A person, therefore, may be opposed to capital punishment for this reason alone—a reason that implies a deliberate and philosophical estimate of the weight of human testimony. Yet, all those, who thus weigh the evidence a little more philosophically, and in the light of a wider observation, than the government, must be excluded. Is such a principle to be tolerated? One of the very objects of the trial by jury, is to have the evidence weighed differently from what it is supposed the government might weigh it. Yet now, because a man thus weighs it, he is excluded from the panel.
Again. It is not only a supposable case, but a highly probable one, that a person may be opposed to the death penalty, on the ground that it is a "cruel punishment," (and if unnecessary, it is "cruel,") and that therefore the government has no constitutional right to inflict it—"cruel punishments" being expressly prohibited by the Bill of Rights. In that case a man would be excluded from the panel simply for forming a different opinion from the government, on a question as to the constitutional powers of the government. If such a principle prevail, all barriers, interposed by a jury, not only to the infliction of " cruel punishments," but to the assumption, by the government, of all manner of unconstitutional authority, are swept away.
The question has thus far been discussed on the
