Page:Illegality of the trial of John W. Webster - Spooner - 1850.pdf/24

16 such a one as all men, drawn as jurors, can conscientiously assent to.

If the doctrine here attempted to be maintained be correct, the trial by jury secures a merciful criminal code—such a code as “the country," (as represented in a jury drawn by lot from the great body of the people,) can conscientiously aid in en- forcing. If the doctrine be erroneous, we have no such security. We can have only such a code as a bare majority of the people may chance to approve; and all that justice and tenderness towards life, liberty, property, and character, which bas hereto- fore forbidden the condennation of an accused per- son, so long as any portion of the country," (as represented in a jury drawn by lot,) doubted his guilt, or disapproved his punishment, must give place to a steruness, not to say ferocity, which packs a jury with a special view to a more easy conviction, or a heavier penalty, than could other- wise be obtained or inflicted.

In Dr. Webster's case, three persons, equal to one fourth of the jury, were excluded from the panel, on account of their opposition to the death penalty. These three persons, it is fair to pre- sume, represented a corresponding portion of the community, that is, one fourth of the whole. Thus one fourth of the country" were virtually disfran- chised of their constitutional right to be heard, both on the question of the guilt, and the question of the punishment, of one of their fellow men. Will so large a portion of the community acquiesce in such a disfranchisement?