The daily union. [volume] (Washington [D.C.]) 1845-1857, 1853-05-10
The Gardiner Trial.
CRIMINAL COURT FOR THE DISTRICT OF CoLUM.
BlA.
Reported Unonl
FoRrY rIrrn pAY-TnuRspAY, MAr 5, ls5a.

i
! MIR Bradley. # would have been gratifying TO me il
counsel Tor the United States had followed the example
OF my excellent colleague in opening the argument on
this objection, by assuming for the sake OF saving time
that these letters genuine and then combining them
selves 10 the naked question OF law, and The grounds on
which their admssibly was to depend. Noiw,hsand
ing this, It seems TO me, and buHbiy submit il Tor lheI
consideration and that o the court that both the counsel
for the United States have pursued course OF argu-
ment which would have been much more appropriate Il
presented 10 another tribunal On The question now
pending, plain and definite as il is, have had the
whole OF This argued believe there is not poin
which has struck me III the course OF the evidence which
has no, been called the notice OF honor bearing
remote degree upon the first question
edas 10 whether these papers evidence for any pur-
pose and, secondly II for any purpose for vhat purpose
agree win the counsel that one oil The best guides IN
looking into these questions OF law which exists
IN the mind OF every man. whether he is lawyer not
and that guide IS what has been termed 'the rule OF com
mon sense. BY that expression extend the rule little
wider than Lord Coke did, who confined il TO the 'com-
mon sense of the learned in the law" !" but undoubtedly
enc oil the best rules s first TO submit question 10 that
crleTlon-the Iule OF common sense; and looking a,
this question in that point OF view, and measuring by
that rule, have the concluSion spite OF all
the pccedenis and arguments which have been adduced
to the contrary, that The evidence offered is not and
canno, be admissible al This Stage OF the proceedings
am perfectly aware sir that the leaning OF modern courts
and legislatures 10 break down that have been taught
10 regard as our great safeguards IN jury trials and 10
admit INTO them evidence exceedingly loose, the effect oil
which is TO be judged OF by jury, matter whether
learned or uneaned IN the law. How lar this leaning
/ ~
certaDment OF truth, the establishment Of right, and the
punishment OF wrong-has yet TO be determined and
much tear tina, this "moden progress is but branch OF
another modern progress which strikes al the ndppend
ence OF The Judiciary making IL the mere creature OF the
popular will. They are twin brothers; and that day is
coming Just as ceanly as urged by counsel learned
abie and eloquent that there 10 be moral evidence,
independent OF, and and above, legal evidence,
which Is to affect The community large, and thus
else s nfiaence upon jury trials That result must ne
cessary come because so long judges guided
by the rules they have learned in their nacy, under
which they have grown up, and which by their 'ahs
they bound TO dminste they must this
popular OPINION founded upon this moral evidence.
! Sir, what have we been told in The progres. of this
causei Why, that. although evidence may not be ad-
mlsslbe according TO The established rules of awha,,
although may not go to the Iurya' although the jury
may be instructed by our courts that they should dsFe
gard and expnnge II from their memores-yei, that the
press has rights equally strong with those of iuryand
although il may not be legally admissible, il should be
published pending trial, IN order tha, il may be moral
evidence bringing public opinion TO bear upon the issue OF
Jury tfla aitm that II such is not the avo~ed de-
sign Of this doctrine ii It's pa pabe and inevitable effect.
As an American citizen, discaim 1t; enter my solemn
protest against II; believe II TO be not only uBfounded
but emlnenty unparlotic would not hive under a
government like ihat-f had anohe. TO 90 io--where
trial by jury TO be affected by public opinion manuac
ared IN any way or where Judge upon The bench is 10
be influenced IN any degree TO depart from the
marked out by law BY any pressure or under any ccum
stances, or from any cause whatever
admit that where there rules governing the
admlssibllty OF evidence, we must 60 TO - common
sense but il must be common enlightened by the
rules which precedents and experience have established
and By anaoses 10 be found in cases already decided
The common sense OF no two men is the same; the
common sense" OF two Judges is the same there
is no measufe-no standard BY which it be Judged
other than by the rules laid down. The manner IN
which men reason IS dlferent aud II they set up each
for himself an independent action, each judging
/ by bis own common sense, without regard TO the
rules by which his predecessors baye been governed
thus refusing 10 bring all within the principles
tablshed by that kind OF common which has gone
before them, we shall be utterly at sea. When there
fore speak oil common sense, | do not speak OF the
common consent OF mankind, but speak OF the means OF
Judging oil common given 10 us 10 compare and
analyze TO silt and examine rules, and 10 apply these
rules as far as possible 10 the matter in hand and
where these rules fall then that should bring these
facts within the snaloges upon which these rules arc
based. That is the OF common sense BY which
we 10 be guided
Bat, II your honor please, think we are not lett al
upon many ptecedenis 10 the admissbity OF
tain kinds OF evidence In the progress OF time rules
have been adopted founded upon decisions which have
grown into precedenis which rules are the standards
which We must bring almost every question that can be
raised. THIS admirably illustrated in our rules
70 regard to The order Of proof and the time when we
shall Introduce certain evidence Without these com.
mon woulJ teach that plaintiff has but to make
out pima fatia case he may examine witness
alone, and may think that his s proved by that
witness, and be satisfied with II as thus proved The
defendant may bring two three witnesses 10 prove quite
different state OF facts; yet is there any rule better
established IN the course Of jury trial than that you
cannot bring cumulative proof under the pre'enee
/ OF rebuiting the evidence OF the defendantl Yet
common sense would teach us that that is one OF the
cases in which evidence in chief might be introduced
rebuttng proof Let suppose a by way OF Illus
traon Suppose that In this the United States had
offered all the evidence which they deemed sufficient TO
show that the acts complained OF against the defendant
are founded IN conspiracy, IN fraud and forgery and
are supported by forgery and perjury suppose further,
that they have other broof behind which they think is
unnecessary 10 introduce because their made out;
defendant offers his evidence, and fully dsproyes
their Gaze, and then they should ask TO introduce that
proof which would have been evideace in chief, and
which, II introduced al all ought 10 have been introduced
IN s proper placesuppose they do this and call u re-
buing prooti Why, sir one kind OF common sense"
would say, BY all means, let them introduce IT; II was
not necessary 10 burden their with thus cumulative
evidence, since il was they thought sufficiently es-
tablshed befote But that, may IL please The court, IS
not the kind Of common sense" which is 10 govern
here.
shall have occasion TO touch this subject again
the different points OF the case hey arise, and to
show what meant when lawyer talks OF looking at
a question in common point OF view" AT
present IL rs sufficient to say that, by the common con-
sent OF Judges from the time the question first raised
to this day, II has been settled that where there is evl-
dence in chief in the possession OF plaintiff defend
ant, they shall not spi up their case, and prove u
pece-mea that evidence in chief shall not be intro
duced which would be cumulative endlog 10 prove the
fact rebutting proof but that must be INTRO.
dueed in its order Without that rule what would be.
come OF any trial What would become OF any de.
endant, civil criminal, arragned or sued, II when be
has presented against him slight case by ,he prosecu
uon he goes with bisdefence, and makes out as ne
surposes, triumphant to the allegations against
him and then, his amazement, the prosecution nav
ing found out the nature and extent of ms aeienoe
come back de with what they hold TO be over
whelmng. damning proof That u precisely the qnes'
non involved here and II will be my purpose 10 sbo ~
that II this evidence admissible al all, was only
| admissible IN and cOuld be admit