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The Bill of Rights of Massachusetts, is, if possible, more explicit than Magna Charta in submiting the question of punishment to the "judgment" of the jury; indeed, the first clause on the subject, in terms, makes the whole trial, (so far as the jury are concerned,) a question of punishment, rather than of guilt. That clause, it will be seen, uses no terms that express conviction of guilt, as a separate thing from punishment. It does not say, like Magna Charta, that no man shall be "passed upon, nor condemned;" it only says that no subject shall be arrested or punished. It is only in the second paragraph that the trial of his guilt by a jury is clearly provided for.
These are the words:
"No subject shall be arrested, imprisoned, despoiled or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.
"And the government shall not make any law that shall subject any person to a capital or infamous punishment, except for the government of the army and navy, without trial by jury."
The language of the first of these paragraphs seems to be explicit, that the jury are to pass upon the question of punishment, and I take it for granted that it settles the question.[1]
- ↑ Because the jury pass upon the question of punishment, it must not be supposed, if they award any particular punishment, or degree of punishment, that their decision is necessarily final, any more than that their verdict that he is guilty is necessarily final. A man may be relieved of the punishment by the executive, or acquitted of the guilt by the judiciary, (on a question of law being
