Page:Illegality of the trial of John W. Webster - Spooner - 1850.pdf/12

4 first place, be postponed until a subsequent term of the court, and until an entire new jury be drawn. If this new jury should have among them persons entertaining the same scruples, as those drawn at the former term, the trial must be again postponed; and so on, from term to term, until a jury, drawn in the usual way, shall be found, who will consent to be sworn to try the case. If such a jury cannot be obtained at all, then the trial must be postponed until the statute, prescribing the punishment of death, be repealed, and such a penalty substituted, as jurors will all consent to aid in enforcing. In no event, and for no reason whatever, can the jury be packed, in the manner it was done in Dr. Webster's case, for that is destroying the trial by jury itself,—as I will now proceed to show.

The trial by jury is a trial by "the country," in contradistinction to a trial by the government. The jurors are drawn by lot from the mass of the people, for the very purpose of having all classes of minds and feelings, that prevail among the people at large, represented in the jury. They are drawn by lot from the mass of the people, for the very purpose of making the jury a fair epitome, mentally and morally, of "the country,"—that is, of the whole country.

A tribunal, thus selected, is supposed to be a more just, impartial, and competent tribunal, than the government itself, or any department of it would be. And unanimity, on the part of the members of this tribunal, is required, in order that no man may be punished or condemned, unless the whole country, (so far as that is supposed to be fairly repre-