law student. To him we recom- graces of form and gesture are mend it, as an authoritative exhi- gone. bition of correctness in judicial The managers on the part of the proceedings, displaying the appli- house of representatives, were, cation of principles to practice. But Messrs. John Randolph, Rodney, the book is printed on poor paper, Nicholson, Early, Boyle, and G. and in a miserable style of execu- W. Campbell. The counsel for tion. Frequent and scandalous er the respondent were, Messrs. Harrours occur in the orthography. It per, Martin, Hopkinson, Key, and has all the marks of hurry, which C. Lee. no necessity will palliate, and for The replication to the answer of which the editors, considering the the respondent, filed by the mandignity of the subject, and the ex- agers, on behalf of the house of retensive patronage, which they had presentatives, was framed from obtained, are inexcusable. We the form of the replication, which have seen the first volume of was filed in the celebrated case of Smith's edition of the trial, which Warren Hastings. is executed, in point of typograph- Mr. Randolph opened the cause ical neatness, with much greater on the part of the house of reprecare, and in a superiour style. In sentatives in a speech, in which Evans's report, the arguments of he took a general survey of the the counsel for the respondent, and charges. We naturally expected, in Smith's edition, the arguments that Mr. R. would, in this speech, of the managers were revised and have exerted all his talents, to give corrected by them prior to their the most clear and favourable appublication. So far as we able to pearance to the cause, which he judge, by comparing the speeches supported. We expected, that of the respective orators in the two after a brief and clear exhibition of editions, it is generally true, that the charges, he would have followin both they have been reported 'ed the respondent's plea, and diswith fidelity. Where they have played, what is styled in the replibeen revised and corrected by the cation, “ its evasive insinuations," orators, many of them are worthy and “its misrepresentation of of the occasion, and do honour to facts :” and, since it was " utterly the taste and eloquence of our false and untrue," that he would country. To those, who are con- have stript it of « its gloss and colversant in courts of justice, it is ouring.” Much time having elapwell known, that to speak elo- sed, since the subject had pressed quently on important subjects, on his attention, it would, we prewithout deep premeditation, re- sume, have been easy for him ; quires the highest efforts of the and, considering the novelty of human intellect. The report of a the occasion, it would have been speech is usually, though not ne- useful, briefly to have exposed the cessarily, an abridgment of it. The law of impeachment. But his reporter is solicitous to catch the speech is extremely barren of mato sentiment. He is seldom able to ter, and defective in argument. exhibit the beauties of style and Even in its revised form, it has manner. He can preserve the none of those qualities, which conbones and sinews. The anatomy stitute eloquence. It is not remay be perfect, but the delicate commended to us by the poor shades of complexion, and the merit of splendid declamation, or of

Ingenious sophistry. In fact, the freedom. It is congenial to the genera Sampson seems to rise up among

ous spirit of our institutions to lean to the Philistines, shorn of his locks.

the side of an unhappy fellow creature,

put in jeopardy, of limb, or life, or libThe following passage will give

crty. The free principles of our gová an idea of his manner. It is ani ernments, individual and federal, teachi mated, but the sentiment is ex- us to make every humane allowance in tremely incorrect and paradoxical. his favour, to grant him with a liberIts tendency is to extend impunity

ality, unknown to the narrow and ty

rannous maxims of most nations, every to criminals, by dissolving their

indulgence not inconsistent with the counsel from the observance of due administration of justice. Hence a the salutary maxims of the law in greater latitude is allowed to the acthe conduct of their trials.

cused, than is permitted to the prosecutor. The jury, upon whose verdict the

event is staked, are presumed to be men We are prepared to prote, what the

capable of understanding what they are respondent has in part admitted, that he

called upon to decide, and the attorney t restricted the counsel of Fries from

for the state, a gentleman learned in his citing such English authorities as they

profession, capable of detecting and exbelieved apposite, and certain statutes of

posing the attempts of the opposite counthe United States, which they deemed

sel to mislead and deceive. There is material to their defence ;" that the pri

moreover the court, to which, in cases soner was debarred by him from his con

of difficulty, recourse might be had. Buc stitutional privilege of addressing the

what indeed is the difficulty arising froni jury, through his counsel, on the law, as the law in criminal cases, for the most well as the fact, involved in the verdict

part ? What is to hinder an honest jury which they were required to give and

from deciding, especially after the aid of that he attempted to wrest from the ju

an able discussion, whether such an act by their undeniable right to hear argu

was a killing with malice prepense, or ment, and, consequently, to determine

such other overt acts set forth in an inupon the question of law, which in a

dictment, constituted a levying war acriminal case it was their sole and un

gainst the United States and to what questionable province to decide. These

purpose has treason been defined by the last charges (except so far as relates to

constitution itself, if overbearing, arbitra. the laws of the United States) are im.

ry judges are permitted to establish apliedly admitted by the respondent. He

mong us the odious and dangerous docconfesses, that he would not permit the

trine of constructive treason? The acts prisoner's counsel to cite certain cases,

of Congress which had been referred to " because they could not inform but

on the former trial, but which the res might deceive and mislead the jury."

spondent said he would not suffer to be Mr. President, it is the noblest trait in

cited again, tended to shew that the of this inestimable trial, that in criminal

fence committed by Fries did not amount prosecutions, where the verdict is gener

to treason. That it was a misdemeanor, al, the jury are the sole judges, and,

only, already provided for by law and where they acquit the prisoner, the judg- 'punishable with fine and imprisonment. es, without appeal, both of law and fact. The respondent indeed denies this part And what is the declaration of the respon.

of the charge, but he justifies it even (as dent but an admission, that he wished to

he says) if it be proved upon him. And take from the jury their indisputable

are the laws of our own country (as privilege to hear argument and deter

well as foreign authorities) not to be sufmine upon the law, and to usurp to

fered to be read in our courts, in justifi: himself that power, which belonged to

cation of a man whose life is put in jcoa them, and to them only? It is one of pardy! the most glorious attributes of jury trial, that in criminal cases (particular The examination of the witnessa ly such as are capital) the prisoner's es followed. In this interesting counsel may (and they often do) attempt * to deceive and mislead the jury." It part

part of the work, we observe great ka essential to the fairness of the trial, attention paid to those rules of evia that it should be conducted with perfect dence, and maxims of conducts

Vol. ill. No. i.

which are justified by the authori- testimony, for instance, is itt ty of judicial tribunals. In the admissible to prove the contents trial of Warren Hastings, the of a deed, or written instrument, managers on the part of the Com- which are in existence ; that the mons contended, with persevering copy of an instrument shall not be obstinacy, that they ought not to be used, where the original can be bound by the rules of legal pro- produced ; and that a witness shall ceeding, which are observed in not be permitted to testify, unless other cases, and before inferiour under the solemnities of an oath ; tribunals. The Commons, said are rules of evidence, which cerMr. Burke, disclaim all knowledge tainly are founded in nature, and of pleading as a science. They can never vary with the varieties are not clerks, but plain, simple of legal occasions, or be dispensed laymen. If they speak the lan- with by any tribunal. guage of reason and plain sense, Mr. Early's speech follows the they are not bound to plead tech- examination of the witnesses. It nically, or to speak according to commences with the following obthe terms of science. By the con- servation, which we find, in its restitution, the Lords are not consider vised state, in Smith's edition. ed as learned in the law, but merely “ There is no attitude, in which as Barons, Swordsmen, and Cava- the government of this nation can liers, with whom are mixed the be viewed, more completely deBishops, and it would be proper monstrative of the efficacy of its for them therefore to judge ac- principles, than that, in which it is cording to the principles natu- now placed.” Whether Mr. E. ral justice, and not according to thought that, at that time, the goru certain narrow rules laid down in ernment was standing, or walking, other courts. But in the whole or sitting, or sleeping, we know course of that trial, theirLordships not; and how the attitude of a acted on quite different principles, government should demonstrate its and demonstrated by their decis. principles, is a little mysterious. ions, that there was not, in their It appears to us as difficult to com opinion, one rule of evidence, prehend, as it would be to ascerwhich did not apply to the House tain, from a man's gait, whether he of Lords, as much as to any infe: were a Roundhead or a Cavalier. riour court in the kingdom. Mr. Sahust remarks a peculiarity in Burke denied, that there was any Cataline's gait! « citus modò, mosuch thing as rules of evidence, do tardus incessus”: sometimes and contended that all evidence walking rapidly, then suddenly must vary in its matter and in its stopping and looking, as though manner, as the nature of each case he feared that he was pursued. varied. But his idea was ex. This indicated a mind, haunted tremely incorrect : for the rules with the images of former crimes, of evidence result from the nature and loaded with the consciousness of things, and, like the laws of na- of guilt. But the use of this rheture, are immutable. By these torical figure in the present inrules, it is not intended, that the stance is the first time that we have same evidence will prove all cases: seen it applied to a body politick ; they respect rather the quality and we leave it with this one oband degree of proof necessary to servation, that its use has not yet substantiate a fact. That oral been established by standard al

thority. Mr. E.'s speech abounds dignified, and the whole oration is with hyperbolical expression and not unworthy, for its excellent subsuperlative epithet, which, like stance and elegant form, to be profane and idle oaths and impre compared with some of the celecations in common discourse, in- brated productions of the Roman dicate a poverty of invention as bar. well as a corrupt taste. His view Mr. Key's speech is confined to of the subject is very general. the second, third, and fourth artiSomething like an argument is at cles of impeachment, and is, to tempted on the first article, but use the language of Mr. Lee, in his manner throughout is loose the style and manner of an “ eleand declamatory.

gant advocate.” We are better pleased with Mr. Mr. Lee's speech displays Campbell's speech, as it appears much judicial skill, united to an revised in Smith's edition. His ease and simplicity of manner, style is plain and impressive, with which are highly pleasing. out an attempt at any great de- Mr. Martin confines his particgree of elevation. He confines ular attention to the fifth and sixth, himself to an investigation of the after a survey of the preceding arconduct of the respondent at the ticles of impeachment. He distrials of Fries and of Callender. cusses with great ability the relaHis view is general, and executed tive duties of judges and counsel, with considerable ability. It is and the respective rights of judges vastly superiour to the vapid per- and jurors. He incontestibly formance of Mr. Early. Even the proves, on the authority both of freedom, with which he treats the precedent and reason, that the respondent, and the resentment, right of the court to decide the which he expresses at his con- law, is the same in criminal as in duct, are excusable, because they civil cases. He demonstrates, that are the prerogative of animated the process, issued by the respondebate.

dent in the case of Callender, was This volume next presents us correct. “ Two highly respectawith the speeches of Messrs. Hop- ble legal characters in Virginia, kinson, Key, Lee, Martin, and who successively held the office of Harper. They are models of fo- attorney general (Col. James and rensick eloquence. We have de. Gen. Brooke) were applied to by Foted so much attention to the an- one of their deputies, and declared swer of the respondent, that we themselves incapable to decide, must be content to give our opin- what ought to be the practice ; or ion of the character of the argu- in other words, to decide in what ments for and against the prose- cases a summons ought to be cution, without minutely analysing used, and in what cases a capias them, and without the insertion of was the proper process." This copious extracts.

point, which had puzzled the VirThe defence was commenced by ginia lawyers, Mr. Martin, by his Mr. Hopkinson, the introduction luminous investigation, has, we to whose speech is truly eloquent presume, settled; for which serv. and impressive. It is confined ice the bar of that state ought to to a defence of the respondent on be very grateful. The style and the first article. The language is manner of Mr. Hopkinson is very

dissimilar to those of Mr. Mar where his conduct admits defence ; tin. The former resembles a when he has with warmth of heart . majestic stream, flowing with silent and eloquence of language, urged grandeur down its lofty banksin his behalf, whatever is consistent The latter is a torrent, which bears with good logick and truth, he has down all before it. Mr. Martin's honourably discharged his duty, conclusion is abrupt, and unequal and ought then to submit to the to the preceding parts of his ora, decisions of those, who are invest, tion. After a minute and some- ed with the authority to decide. what dry discussion of a point of In assigning to contradictory legal practice, extracted from testimony the grades of credit, to statute provisions, the orator which its several parts are entitled, ought gradually to have descended in elucidating dark passages, and from the height of legal abstrac- in extracting from the informal tion, and relieved the mind of his mass the forms and proportion of auditors by a conclusion of a mild. truth, are among the most difficult er and more dignified form. tasks of forensick orators,' There

Judge Chase's defence was con was, in this case, much occasion cluded by Mr. Harper. His for legal discrimination, and of thiş speech has less of a professional talent Mr. Harper appears to be dress, than either of those, which eminently possessed. His lan. were delivered by his associates. guage is uniformly dignified, and It is calculated for an assembly, strictly within the limits of decent which, like the senate, was com- and manly expostulation, He posed of eminent characters from takes a general view of the whole the various professions in society, subject of impeachment, but more The distinguishing trait of this particularly confines his attention speech is the candour of the ora- to the transactions at New Castle tor. He boldly meets the facts in in Delaware, and to the eighth the case, as they had been related charge. most to the disadvantage of his Whoever reads this case must client, and satisfactorily shews, be sensible, that the managers had where the witnesses must have to contend with complicated ema been mistaken, and where the acts, barrassments. The counsel for the charged as criminal in the res respondent were from among the pondent, were judicially correct. most eminent professional characa Candour is the legitimate offspring ters in the United States. The of a magnanimous and liberal facts contained in the articles spirit. So much does it gain on could not, with all the authority of the hearts of men, that its form is the accusing power, and with all often artfully assumed even for the zeal and ability of the mandislionest purposes. Orators at agers, be shewn to be subject, of the bar are generally unwilling to impeachment. Strip them of their yield any thing to their antagonists. technical language, reduce them But who, that has any experience, to the 6 simple elements of their will not confess, that there is in own merit," and what will remain almost every cause good and evil. against the respondent, which inIt is a departure from moral puri. dicates a crime? Feeble as was the ty, to attempt to give to wrong the accusation, it derived no strength appearance of right. When an from the testimony, after a most orator has defended his client, thorough investigation of which,

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