Page:Illegality of the trial of John W. Webster - Spooner - 1850.pdf/11



was not tried by a legal jury; but by a jury packed, by the court, either with view to a more easy conviction than could otherwise be obtained, or with a view to a conviction which otherwise could not be obtained at all.

The jury was packed by excluding from the panel three persons, on account of their opposition to capital punishment, and substituting in their stead three persons not thus opposed. That opposition, it was supposed by the court, (and correctly too, of course), would either render the persons entertaining it less ready to convict the defendant, than they otherwise would be; or would prevent them from convicting at all, whatever the evidence might be.

But exclusion for either or both of these reasons is illegal. If the punishment prescribed by statute, be such as to disincline, or deter, the minds or consciences of the men drawn as jurors, from a conviction, the statute must fail of execution, rather than the jury be packed to avoid that obstacle. Even if the persons, drawn as jurors, should themselves request to be excused from serving, or should even refuse to be sworn, on the ground that they could not conscientiously render a verdict "according to the evidence," if that verdict were to be followed by the penalty of death, still the court could not discharge them. The trial must, in the