Page:Illegality of the trial of John W. Webster - Spooner - 1850.pdf/13

5 sented by the jury), shall concur in the conviction and punishment. This concurrence of the whole

"country," as condition of conviction and punishment, is required from motives of both justice and caution towards the life, liberty, property, and character of the person accused. It is supposed that if any portion of "the country," (as represented in the jury), dissent from the conviction or punishment, that dissent gives sufficient reason at least to doubt the propriety or justice of such conviction or punishment.

Now it is clear, that if the government can exclude, on account either of their opinions or feelings, any persons thus drawn by lot, the trial is no longer a trial by the country," but only by a portion of the country. It is, in fact, a trial by the government, instead of "the country,"—because it is a trial by that portion only of the country, which has been selected by the government, on account of their having no opinions or feelings different from its own.

Such an exclusion, therefore, works the abolition of the trial by jury itself,—because it works the abolition of the trial by "the country," and institutes a trial by the government.—or, what is the same thing, a trial by persons selected by the government, on account of their concurrence in, or their subservience to, its own opinions and feelings.

Whenever, therefore, the government presumes even to question the persons drawn as jurors, as to whether they entertain any opinions or feelings different from those entertained by the government, (as the latter are expressed in the statute book),