Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1805-03-20
(continsai<.d from last t,ayste. J

shift the argument from the real point in
contest, to the sorndness Of the opinion
g'self, which however questionable (ahd of
Hs 'ncorre stness Ienteriain no doubf) il is
hot onr object a, this time to examine.
For the truth Of this opinion, and as it
would. for The propriety Of this proceed
ing, the respondent takes shelter under
precedent. He tells you, sir, this doctrine
had been repeatedly decided. on solemn
argINent aud deliberation, twice in the
same court, and once in that very case
What is this but confe sion, that he
himself hath been the first man to venture
IN ga daring aninnovation on the forms ct
our criminal Jurisprudence. To justify
hImself tor having given written opini-
eo pefors counsel had been heard for the
prisoner. he resorts to the example ser by
his predecessorswho had thecus-
tomary verbal opinion. after solemn argu-
.Tent and deliberation.--And what do
these repeated argu nents had solemn de-
alterations srove, but tina, hone of his pre-.
decessors ever arrogated To them selves
the monsirous privilege of breaking in up
ON those sacred institutions, which guard
the lite and liberty of the citizen from the
rude inroads of powerful injustice. The
learned and eminent Judges to whose ex-
s'nole he appeals Far Justification, decid-
ed after, and mt 5cf,re hearing. They
exercised the acknowledged privilege OF
the bench in giving an Union 10 the iu-
ry on the question Of law, after it had
been fully argued, by crnnsel, on both
sides. They never attempted by previous
! and written decisions, 10 wrest from the
/. jury their untlenIable right, Of deciding up
On the law as well as the fafs, necessarily
involved in general verdict to usurp this
decision to themselves, orto prejudice the
minds of the Jurors against the defence.
beg The honorable court never to lose
sight al the circunstance, that this was
criminal trial, for cahifai offence, and
that the offence charged was treason. The
respondent also admits, tina, the counsel
prFrie>,no meaning TO contest the truth
OF the facfs, charged in the indi etment,
rested their defence altogether upon the
law, which-hc declared To have been set
tied in the cases Of Vigol and Mitchell: a
decision which although it might BE- bind
ing on the court. the Jury were no, obIig.
ed torespeek and which the counsel had
right TO controvcrt before them, the sole
Judges IN case Of that nature, both Of
the Msv and the Joef. do not deny the
rii;--1At OF The court 20 explain their sense
nf the law, 10 the jury, after counsel have
been heard ;--bui do deny that the jury
are bonnd by such exposition. Ifthey We
sily believed that the overt acts charged
IN the indictment did not amount to tres-
hon, they would not without surrender
OF their conscicnces into the hands OF the
eonrt, without a fragrant violation of all
that Is dear and sacred To man, bring in a
rersiicl Of guilty. ] repeat that in such
case the jury are not only the sole jadg-
es OF the law, but that where their verdict
IS favorable To the prisoner, they are the
Judges without appeal In civil cases in
deed the verdia may be set aside and
new trial granted but in a criminal pro-
secution, the verdia &c not guilty. is final
and conclusive. IL IS only when the find.
ing of the Jury is unfavorabIe to the pri-
soner, that the humane provisions OF our
law, always Jealous of oppression when
the life. or liberty, Of the citiz>a is at
stake, permits the verdia to be set aside,se
n new trial granted to the unhappy cnlpsit.
When Ico3cede the right Of the court to
explain the law TO the Jury in criminal, &
especially in acspilai case, | am pcnene-
traied with the conviction that it ougti tn
be done, IL at all with great caution and
delicacy. must beg leave to state, be-
fore this honorable court, what sppers to
my unfeitered judgement, to be strong
and obvious dis,in@ion. There is in my
mind, amaterial difference between nak-
ed definition Of law, the application of
which is left to the jury. and the appIics-
ton, by the court, Of such definition TO the
particular case upon which the jury are
called 10 find general verdict. Surely,
there is a vide and evident distinction be.
tween an s,ssraa opinion upon a point of
law, ard an opision applied 70 the facts
admitted by the oariv accused or proven