Constitutional Whig. [volume] (Richmond, Va.) 1824-1832, 1825-09-02

ges TO make political harangues 10 jury, who reply BY
party presentrnent.
In England the conduct of Judges is frequently alto
gether subvcrsiye OF the design of the trial by iury
They distinctly and even vehcmeny, state their own
ouvcton of the guilt innocence of the accused
Not in political only in which this is generally
done a notorious and shameful extent, but even in
criminal cases the charge of the judge TO the jury fire.
qucnily differs essential point rom the address OF
the advocate 10 that body. In order To- prevent this
most mischevous practice it is declared in this code,
that Nc charge Of The Judge suH be restricted entirety
TO an opinion IF te lao. lie is even prohibited from
repetition of the evidence, except when required by
of the jury Ii is stated that the p; aCtce Of
repeating all the testimony from notes. always from the
nature of things inpcrfecty, not seldom inaccuraey
and sometimes carelessly taken, has double disayan
tage il makes the jurors, who rely the Judges
notes than their memory inatontive TO the evil
dence; and it gives them imperfect copy of that,
which the trial by jury requires they should record
their minds. Forced TO rely themselves, the me-
Cessy viii quicken their attention. and witt only be
when they disagree in their recolicction that recourse
will be had To the notes OF tue Judge IL is Justly obscr-
we'd, that IT ordinary count of Justice be properly
called the temple of that high attribute of the Deity
We may, without too FAR extending the metaphor tenn
the tribunal of criminal jurisdiction shrine in that
temple the holy of holes, into which impure or unwor
tliy passions should find admtancc, and where no
ought To olicatc until lie has put off ilc habits of
ordinary life and assumed with the holy robes of his
function, that purity of intention, that ardent worship
of truth inconsistent 18th the low pursuits of
interest, the views Of ambition, the vanity Of false
talent.
Judges are generally men who have grown old in the
practice at the bar. With the knowledge this expc-
encc gives, they also acquire habit very difficult bc
shaken oft that OF taking side il every question they
bear debated, and when the mind is enlisted ti.c
passions, their prejudces and their professional nge-
nuity always arrayed the side and furnish
arms Tor the CONTEST neutrality cannot under these cir
cumstances be expected: the law should limit as much
possible the evil which this almost inevitable state of
things must produce. In the theory of our law the
Judges the counsel for the accused practice they
are, with few honourabie exceptions his vruent
prosecutors. The true principles of criminal iurisIr-
dence require, that they should be neither. Perfect i'm
partatity sIncompatibc these duties. good Judge
should have wish that the guilty should escape or that
tie innocent should suffer- false pity undue severi
~ should bias the mistaken recudc of his Judgment:
calm III deliberations firm IN resolve patient invest
gazing the truth, tenacious of il when discovered, he
should JON urbanity of manners 10 dignity of demcan-
Or and an integrity above suspcion 80 learning and
alen such Judge what, according To the true siruc-
ture of courts, lie ought to be-he protector not
the advocate of the acCused and while executing these
functions, he the organ by which the sacred will of the
law is pronounced. Uttered by such d voice il will be
heard, repeated, felt obeyed; but impose him the
task OF argument, ofdebate; degrade him the bench
10 the barr sutle him to overpowcr the accused with his
lDuence or TO enter the lists with his advocate carry
on the contest of sophisms, ofangry arguments tart
replies, and all the wordy OF forensic debate; suffer
hun TO do this, and s dignity lost his DEGREES are
longer considered rs the oraclcs of the law: they are
submitted TO, but not respected; and the triumph
accused must be lesseucd by the Suspicion that il has
owed IFS official influence and the ilege
OF arguing without reply For these reasons the Judge
storbdden to express any opinion the facts ch are
alleged IN evidence, much less address argument TO
the juy but his functions confined cxpounding the
law, and stating the points evidence which the reco-
lection OF the members of the jury may differ
The soundness of the principles Which have been ad-
dnccd IN illustration of the spirit in which Ibis code is
framed, the peculiar interest which, The
British public must take in The work. ana tic extreme
beauty of several of The passages i'll which the prnci-
pies are planned aud justified, av tempted us to such
an extended dca as TO preclude the possibility our
entering with the like ninueness into the subject of the
sanctions Of the law Yet the facts and reasoning al
duced by Mr. Livingston under this head AZ so nnpor.
ant, that feel peculiarly anxious to draw the atien-
ton OF the people of Eng land tiis pot ton of the
work, and especially the attention u men of letters
OF ITS philosophers and of the members of lis lee
ture They deserve every account the most Ca I'm
unprcJudced and serious considerations and III the prc
sent state of the public mind they mus be read bv many
persons, at least, with intense interest.
After stating that il has been established as n prnci-
pie that the law Furnishes not 20 avengc but 10
crimes that II effects this first, by dCterrine others by
the example of IFS infections the offender; secondly
by ITS effect on the delinquent himself taking away hy
restraint, bis power; and, by reormaon bis desire Of
repeating the offence; that punsmcns greater than
are necessary TO effect this work of prevcution ought
to be inlcted and that those which produce IL ly uni
ting reformation with example the best adapted TO
The end: several OF the modes of punishment wCh have
adopted, separately considered namely Danish
ment; deportation; simple Imprisonment; Imprisonment
in Chains; conscation Of property; exposure 10 public
derIslon; abour public works; mutlation and other
indci6le marks of disgrace; stripes, the uictiom
bodily Paiu death w pass over the objections urped
against tue adoption of the first Eve expcdents
I'm regard TO the pilloy, the stocks, and the other
for public exposure; labour chains
the public works; to ndclibe marks Of disgrace (aIways
attended with bodily pln) and the infection of stripes is
observes That all are liable to the radca objections;
hey all discard the idea of reiornatioh; all unequal
ana SUBJECT to arbitrary imposition; with the exception
pubc ahour they all momeutary in their applications
ana when tie operation they impose necessity ON
the patltnf with the alternative of starving immediately 10
repeat ms oence;bc accordingly with Increased dexeriy
commences new career forms corps ofsimar associates
10 prey upon soetY scduces others by the example of his
impunty IN the instances IN VIII CHI he rscapcs de-
teco swolls the list convictions those where his yie
lance IS deeaed; and finally becomes t subject for the
grand remedy-the punishment ofdeath. | approached
The inquiry into tue nature and effect OF this punishment
WITH The awe becoming man who felt most deeply his
LIABILITY to err; aud the necessity of forming correct
opinion on point interesting to tie Justice of the
country the life of IFS citizens and the character of IFS
laws stroye 10 clear my understanding from all tie
tyitf pft, Il.