practice with the Supreme Court of
Massachusetts, in empanelling juries for the trial of _capital_
offences, to inquire of the persons drawn as jurors whether they had any
conscientious scruples against finding verdicts of guilty in such cases;
that is, whether they had any conscientious scruples against sustaining
the law prescribing death as the punishment of the crime to be tried;
and to exclude from the panel all who answered in the affirmative.

The only principle upon which these questions are asked, is this--that
no man shall be allowed to serve as juror, unless he be ready to enforce
any enactment of the government, however cruel or tyrannical it may be.

What is such a jury good for, as a protection against the tyranny of the
government? A jury like that is palpably nothing but a mere tool of
oppression in the hands of the government. A trial by such a jury is
really a trial by the government itself--and not a trial by the
country--because it is a trial only by men specially selected by the
government for their readiness to enforce its own tyrannical measures.

If that be the true principle of the trial by jury, the trial is utterly
worthless as a security to liberty. The Czar might, with perfect safety
to his authority, introduce the trial by jury into Russia, if he could
but be permitted to select his jurors from those who were ready to
maintain his laws, without regard to their injustice.

This example is sufficient to show that the very pith of the trial by
jury, as a safeguard to liberty, consists in the jurors being taken
indiscriminately from the whole people, and in their right to hold
invalid all laws which they think unjust.]

[Footnote 2: The executive has a qualified veto upon the passage of
laws, in most of our governments, and an absolute veto, in all of them,
upon the execution of any laws which he deems unconstitutional; because
his oath to support the constitution (as he understands it) forbids him
to execute any law that he deems unconstitutional.]

[Footnote 3: And if there be so much as a reasonable _doubt_ of the
justice of the laws, the benefit of that doubt must be given to the
defendant, and not to the government. So that the government must keep
its laws _clearly_ within the limits of justice, if it would ask a jury
to enforce them.]

[Footnote 4: _Hallam_ says, "The relation established between a lord and
his vassal by the feudal tenure, far from containing principles of any
se