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of which there were several—lived in polygamy, that they were obnoxious to the provisions of the act of 1862, under which the defendant was indicted; nor that they were inimical to the law, or opposed Lo its execution. If there had been authority Lo begin the inquiry, justice would demand that it should be prosecuted until the exact status of the party had been ascertained; but there was no such authority. This was equally the right of the juror and of the defendant; but if is manifest, that, in contemplation of the court below, and of the court above—by which the decrees of the court below were approved—neither juror nor defendant had any rights which they felt themselves bound to respect. The court was appointed to be a terror to every evil-doer of the plurality species, whatever the grade or variety; and the uniformity with which it decided every provisional question raised by the prosecution in its favor, and every one raised by the defense against it, is evidence that, in the discharge of its mission, its heart knew no fear, its hand no hesitation.
Under the mechanical practice of the law, which makes the barrister a tradesman, and the text-writer an epitomist—neither of them having any conception of the philosophy that underlies their forms and precedents—it ceases to be known that the source of such forms and precedents was other than arbitrary. Men write and argue, for example, for and against the trial by jury; neither party comprehending how nor why it grew into existence, nor in what pressing human want if originated. It is forgotten, or regarded as of no significance, that the fundamental law of the trial by jury is, that men shall be judged by "their peers of the vicinage"—their equals, likes, neighbors; persons of a common measure with themselves; representatives of the feelings, sentiments, prejudices and beliefs of the social order to which they belong.
The trial by jury has no archaic history. It had no arbitrary or conventional beginning. It was a custom, doubtless, ages before it was a law. It grew into existence in response to a need that was felt, rather than to a conclusion that was formulated; was the product of intuition rather than of reflection. It was a thing in favor of justice, and to adapt its distribution to the circumstances and conditions of those among whom if was administered. The jury was the organ chosen by society to speak its voice. Its purpose was to mitigate the inflexibility of the written law, by the antagonism of fellow feeling and common sympathy. Its implied rule of conduct was, "we punish no man for being
