Page:Illegality of the trial of John W. Webster - Spooner - 1850.pdf/16

8 when it affixes the penalty of death to the commission of a crime, and excludes a man from the panel on account of his views of that penalty—virtually assumes to set up a standard of sensibility, in regard to the matter in issue, beyond which a juror may not go. And the consequence is, that the accused person is tried, not by "the country"—not by persons who fairly represent all the degrees of sensibility, which prevail among the people at large —but by persons selected by the government for no other reason than that they lack that degree of sensibility, touching the matter in issue, which a greater or less portion of "the country" possess. To select a jury on this principle, is nothing more nor less than packing a jury,—in the worst sense of that term. What is ever the object of packing a jury, but to get rid of all persons, whose sensibilities will be likely to thwart the purposes of the government? that is, defeat (or secure, as the case may be) the conviction and punishment of the accused, contrary to the wishes of the government?

The provision of the Bill of Rights, which guarantees to every man a trial by "the country," does not say that he shall be tried by such portions only of the country as possess but a statutory degree of sensibility— a degree of sensibility not incompatible with the efficiency of such penal codes as may be enacted by the legislature—but by "the country" unreservedly—by "the country" with all its sensibilities. And if it happen that those sensibilities are such as that any persons, drawn as jurors, either will not try, or will not convict, where death is the penalty to follow, then the statute affixing that pen-