The enquirer. [volume] (Richmond, Va.) 1804-1815, 1805-08-02

ought to be received. with great caution, AND
mot to he coniidered as conclalive. On this
fulieet will trouble this honorable court with
"a pailage from M.Nally's treatife on evidence,
! page SIS.
:. tits no evidence in criminal cafe, tina. the
I defendant fl'd 70 andsfo, or in other words to
the like eifect, becaufc the court mutt know
the very words to judge of their force and effect.
I 2 Hawk. ca. 46. "a
g And the reafon of this rule is that of words
/ fpoken, there can be no tenor, that IS tran(crpt,
(, Tor there is no original to compare them with,
as there is of words written and though there
( have been attempts te plead tenor of words
| ipoken, it hasnever been allowed. And there
fore if plaintiff declares for words fpokcn, 4
variance, in the oniifiion or addition of a word,
IS not material, and i. is fuficient, if fo many of
the words be proved and found as are in them
telves ationable. IL Viz. abr. 68. pl. 46.
$50 in Huhey Us. Coke, Eater, Is. JAG. / !.
in the Star-cbamber. The court held, that if
witnefs depofe that defendant did perfuahe
Juror to appear and to do him reaionaLIe favor,
or words TO the like effect, this is no Efficient
proof in criminals, becaufe the court mult know
| the very words to judge of their force and eff
feet. Hob. s9I. Eos. goo. Hale, D. 6. III.
KEEL. II.
"Hale, Coke, and Fofer, fily jufify the
principle Of this rule. Fofter fays, as to mere
| words fuppofed 10 be treafonabe, they differ
widely from writings in point of real n,algnty,
and proper evidence. They are always liable to
| great mfconiruttion from tie ignorance or in
| attention OF the hearers, and too often from
| motive truly criminal. And therefore chocf.
to adhere to the rule which hath been laid down
on more occahons than one iince the revolution,
that looie words to any act or deign are not o.
vert-atts of treaion. Foit. 900.
"heyling fays, l Zee no difference between
words reduced into writing aud words fpoken
Fofer anfwers, the difference appearsth to me
to be very great, and lieth here. Seiitious wri-
tings are permanent things, and if puhliihed,
they icatter the potion far and wide. They are
acts of elaboration capable of satisfactory proof
and not ordinarily liable to INSTRUMENTATION at
leaa they are unlimited to the Judgment of the
court, naked and urdifguifed as they come out
OF the authors hands. Words are tranlient and
heeting as the Wind, the potion they fcatter is at
! the wort confined to the narrow circle of a few
hearers: they are frequently the effect of fld-
den tranfport, eaiily mifunderftood and often
Emitrepoated. keyiing IS. Eos. eco.
The fnppreiiion of word or fyllable may
change the fenGe; 70 the change of an emphalis.
So words fpoken in exclamation, conveying bv
found and gefture, furpriCe and adherence, NAV
be reprefented in evidence as fpoken blasphe-
moufy or feditiou1y."
/ Sir Mic haet Foter, judge Whole worth has
lteldom been equalle,!, perhaps never furpailcd.
and who has 70 correctly obfvryed, that b3ba-
i "a judge that 10, one who in bis decfons feeks
after popularity, of the mot ..,utc,np-
tible beings in the world, is referred to rs an
authority.
This principle equally applies, where per-
ion is charged erin,inaBy on account of words
fpoken, whether the offence is fuppofed to be
treafor, or only mi!demeancr; the cafe referred
tom Hobart, page 234, is an authority in point :
it is true, this cafe was determined in the Star
Chamber, but being determined in favor of the
perfon accuied, it becomes an higher authority :;
lStar-Cbarnber cafes are only complained of on
account of their opprefion.
vii! now, Mr.. Preiident, proceed to conf
i der the conduct of my honorable client on the
trial OF Fries, and TO examine the law upon that
cafe, and of courie 10 iuvefigate the rights of
judges, m criminal cafes, we'll as the rights of
| attornles. do not mean TO go infinitely into
the tei'nony, which has been given in that cafe
but, taking 1t up on that given by MeiIrs.
Lewis and Dallas, to examine whether the court
is TO controul the council, or 10 be mere cy
pliers, defttute of authority to refrain and
keep within bounds the lawyers when acting
| improperly. The whole of the practice, OF
which have heard, during this trial, as being
uffal in the courts of Pennsylvania and Virginia,
hath been to me at lsaG as noz,eI as the conduct
OF Judge Cbafe appears to have been to the no.
norabe managers. 7, fir, have, ai4uar5 conf
dered it the province Of the court in the courfe
OF trial in all cafes, whether civil or criminal,
to declare what is the law. This right is admit
ted IN civil cafes, but, it feems is denied IN cri-
Iriinal. And therefore, it is commended, that in
l criminal cafes council have right 10 addrefs
the jury upon the law, and To urge them to de-
termine the law in contradiction to the deciliop
OF the court. How dsth the jury acquire the
Poqver of deciding the law in any cafe Becaufe,
1 upon the generaliilus, having right to give a
| general verdict, which involves both law and
Fact, the jury iaeidenfally have the power to de-
eide the law. But this doth not authorize them
TO give verdid contrary to law. When cafe
comes before a jury, the court informs them
what is the law IF they believe the facts given in
evidence; if they d. believe the facts they are
b7nYd in daig TO decide according 10 the law
| thus explained to them by the court. The de-
ciloD ongbf to be the fame as if the facts had
been found by the jury IN fpecial verdict, and
the law left to the court. The Jury. I admit.
have the 5osVer 10 decide the law contrary TO
the direction of the court, but DENY that thew
have right to oft. No perfon will DENY that
tbs much more proper for the court TO decide
the law than that it ihould depend upon Jurors,
WHO are in general ignorant of the law. In ci
vii cafes Jury fometirncs give verdit9 coofra