such a tribunal is,
therefore, in effect, "a trial by the country." In its results it
probably comes as near to a trial by the _whole_ country, as any trial
that it is practicable to have, without too great inconvenience and
expense. And as unanimity is required for a conviction, it follows that
no one can be convicted, except for the violation of such laws as
substantially the whole country wish to have maintained. The government
can enforce none of its laws, (by punishing offenders, through the
verdicts of juries,) except such as substantially the whole people wish
to have enforced. The government, therefore, consistently with the trial
by jury, can exercise no powers over the people, (or, what is the same
thing, over the accused person, who represents the rights of the
people,) except such as substantially the whole people of the country
consent that it may exercise. In such a trial, therefore, "the country,"
or the people, judge of and determine their own liberties against the
government, instead of the government's judging of and determining its
own powers over the people.

But all this "trial by the country" would be no trial at all "by the
country," but only a trial by the government, if the government could
either declare who may, and who may not, be jurors, or could dictate to
the jury anything whatever, either of law or evidence, that is of the
essence of the trial.

If the government may decide who may, and who may not, be jurors, it
will of course select only its partisans, and those friendly to its
measures. It may not only prescribe who may, and who may not, be
eligible to be drawn as jurors; but it may also question each person
drawn as a juror, as to his sentiments in regard to the particular law
involved in each trial, before suffering him to be sworn on the panel;
and exclude him if he be found unfavorable to the maintenance of such a
law.[1]

So, also, if the government may dictate to the jury _what laws they are
to enforce_, it is no longer a "trial by the country," but a trial by
the government; because the jury then try the accused, not by any
standard of their own--not by their own judgments of their rightful
liberties--but by a standard dictated to them by the government. And the
standard, thus dictated by the government, becomes the measure of the
people's liberties. If the government dictate the standard of trial, it
of course dictates the results of the trial. And such a trial is no
trial