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proceedings in court, to control them, as was done in this case. A great proportion of the business of the circuit courts is done without argument, and is not susceptible of it; and while it is the duty of the judge to pay due regard to the situation of counsel who are urged by their clients to make fruitless exertions, he would betray his trust if he carried it to a length that would clog the administration of justice.' The court therefore decided the judgment to be affirmed.

During the same term at which this opinion was pronounced, it was set aside on the motion of Mr. Leigh as stated in Garth's case; and in accordance with the wish expressed by the court, he prepared a written argument in the cause.

He raised, in the first place, two objections to the regularity of the proceedings not at all affecting the question stated in the bill of exceptions; and then he proceeded as follows:

'There are also some considerations, that belong to this case, as it is presented by the bill of exceptions, and yet do not touch the general question, which (judging from what passed at the last term of this court) I suppose the Circuit Court intended to decide, and the exception to its opinion was perhaps intended That general question will be stated in the sequel: what I mean to show at present, is, that the general question, as I understood it at the last term, and as this court certainly understood it too, is not presented by the bill of exceptions, or if it may be collected from the record, it is not so presented as to justify, much more to require, a decision of it by this court.

to reserve.

'First. In this court we can only ascertain the opinion of the Circuit Court from the record; no information, no explanation, from any other quarter, can be heard or regarded, and upon a critical examination of the bill of exceptions, it will be found, that the Circuit Court not only refused to allow the counsel of the accused to argue the cause upon the evidence before the jury, but refused to hear any argument of the counsel addressed to the court itself; for, "the defendant excepts to the refusal OF THE COURT TO HEAR the argument of counsel ” what topic we are not informed. Now, even admitting that the court might with propriety have interdicted all argument upon the evidence before the jury, under an impression, founded upon the peculiar circumstances of the case, that there was no room for fair argument; with what propriety could the judge refuse


to hear argument addressed to himself? argument, either to show that his impression of the evidence was erroneous, and that there was room for fair argument before the jury; or that the counsel's desire to argue the case before the jury, was dictated by a sense of duty, and offended against no rule of decorum or principle of justice; or that, by the law, he had the absolute right to argue the case upon the evidence before the jury. If it be said, that these remarks are founded upon a misconception of the bill of exceptions, I shall be ready enough to admit, that they may be inapplicable to the case as it actually occurred in the Circuit Court; but they are in truth, founded upon the loose and imperfect state of the case contained in the bill of exceptions; and it is this imperfection only, or I should rather say, uncertainty, which I here design to point out.

'Second. Supposing (for argument's sake) that there may be a case of a criminal prosecution, in which the evidence adduced shall be all on the side of the prosecution, and the evidence shall be so clear, simple, direct, positive, unimpeachable, and incontrovertible, that the court may be justified in preventing the counsel for the accused from arguing the cause upon the evidence before the jury; still, I apprehend, that, in order to justify such an interdiction, to justify this court in approving a departure from the usual course of proceeding, so rare, and (1 may add without offence) so extraordinary, it is not sufficient for the court, to say, in general terms, that the evidence was such, in its opinion, as to leave no room for fair argument before the jury. The evidence ought to be stated upon the record, so as to enable the appellate court to revise the course of the trial, and to judge of the propriety of denying the accused a hearing by counsel before his country; and the judge ought to take care that it is so stated, since it is his personal conduct which is in question I say his personal conduct, only because it is impossible not to perceive that every case of the kind must be a conflict between the power of the judge and the right or claim of right of the counsel and the accused: I must not be understood, in the present instance, to impute any personal blame. If the judge of a Circuit Court may properly deny to a party accused a hearing upon the evidence before the jury, without setting forth upon the record the circumstances which justify such denial; if his own opinion, that there was no room

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for fair argument, expressed in general terms, shall suffice in this appellate tribunal, to sustain a conviction where the accused has been denied a hearing before the jury; then is the judge of the circuit clothed with power to determine, in the last resort, without appeal or supervision, in what cases a party accused is entitled to be heard by counsel in his defence, and in what cases he is not.



'Third. The judge of the Circuit Court who tried this cause, agrees with me, I presume, in the opinion, that he was bound to state, upon the record, the reasons which induced him to deny to this defendant a hearing by counsel upon the evidence before the jury for he certainly intended to assign his reasons. pray the particular attention of this court to the reasons assigned. The bill of exceptions states that the court would not allow any argument for the defendant before the jury, "because there was but a single witness in the case who was not offered to be impeached—whose evidence was clear and distinct as to the fact charged and his testimony could not be varied by argument.' "There was but a single witness in the case: " this was doubtless stated to evince that there was no contrariety, no complexity, no confusion, in the evidence: but when before was it ever supposed, that the testimony of a single witness is the strongest and most impregnable ground on which a case, civil or criminal, can be rested. "The witness was not offered to be impeached:" could there be no argument before the jury against the testimony of the witness, which would not impeach him, that is, (as I understand the phrase) impugn his credit? May not a witness of undoubted veracity be mistaken? Are not numerous instances remembered by all counsel and all judges, of the most honest witnesses being clearly proved by counsel to be mistaken, and that from a nice examination of their own testimony? I remember a trial for murder, in which it was a very material question, whether the mortal wound was inflicted with a dirk or with a knife; a witness, who appeared to me to be above all exception, and whose veracity was not questioned, testified in the most positive manner that the wound was inflicted with a dirk; he said he knew the weapon well, and he saw it yet the counsel for the prisoner did, by force of argument, upon the very testimony of this witness, convince the court and jury, and (I believe) every bystander, and the wit

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ness, (I know, for he told me so) that the fatal weapon was a knife. "The evidence was clear and distinct as to the fact charged." How often has it occurred, within the experience of each and every judge of this court, that the judge has thought the evidence clear and distinct, and yet the jury has found a verdict directly contrary to the opinion of the court upon the evidence — in civil cases, in which the court has granted a new trial, because the verdict was contrary to the evidence - and in criminal cases, where if the verdict be a verdict of acquittal, the court may not grant a new trial, though the verdict be in its opinion most clearly against evidence. "The testimony of the witness could not be varied by argument" true, certainly true but the inference deducible from the testimony - the inference which it was the especial province of the jury to draw from the testimony, might have been varied by argument.

'Surely this court cannot give its solemn sanction to any one of these reasons, singly considered. Combine them—take the language in which they are couched, in the most liberal sense presume every thing that a court of law may possibly presume in favor of the judgment. If there was but a single witness in the case, and therefore there was no complexity in the evidence, if that witness was a man of indisputable veracity, and if his evidence was clear and distinct to the fact charged, was there nothing which the counsel for the accused could possibly have had to say in his behalf? Does this record show, that there was nothing which he could have said, pertinent to the case, and beneficial to his client? or that what he intended to say was impertinent? The accused was an infant: supose it was the intention of the counsel to exhibit him in person to the jury, and submit it to them to determine, whether, considering his tender years, he was doli capax. Suppose - but I will not multiply imaginary arguments. We are not informed by this record, what was the topic of argument, on which the counsel intended to insist or whether he indicated or was permitted to indicate it at all. Now, if it were admitted, that the court might with strict propriety discountenance a particular topic of argument, as not pertinent to the case, it would by no means follow, that the court was right to inhibit all argument, before a single word was uttered, from which a judgment could be formed of its pertinency or its weight. I have said thus much

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for the purpose of showing grounds, upon which the court may decide this cause without touching the general question which this court took up at the last term. I own I have been most anxious to find such grounds; and if that feeling has not misled my judgment, I have found them. I am very solicitous, that this court should avoid the general question. It is, in my humble opinion, right and wise, and perfectly judicial, that the court should avoid it, if it be avoidable. As an amicus curiæ, as a member of the bar, as a citizen, I should be grieved to see a question of so great interest, of so much delicacy, of such real magnitude, decided in so petty a case as this is—a case so trivial, that the plaintiff in error has not thought it worth while to retain counsel to argue it for him in this court. I shall, however, proceed to argue the general question; which I take to be this — If, in the trial of any cause, all the evidence offered to the jury be upon one side, and that evidence, in the opinion of the court, be clear, distinct, and direct, and the credit of the witnesses be not impugned; has the court a right to deny to the counsel of the party against whom such evidence is adduced, the privilege, insisted on by the counsel, of arguing the question of fact in issue, upon the evidence before the jury?

'As I understand the question, it does not concern the rights of counsel in civil cases, or in prosecutions for petty misdemeanors, only: it concerns the rights of counsel and of their clients, in the trial of the higher misdemeanors, such as perjury, conspiracy, assaults with intent to murder, rob, or ravish; nay, of indictments of felony, and even of capital cases; and this court, at the last term (unwarily, I have no doubt) resolved the question in the affirmative, without making, in the written opinion, any clear discrimination. It was this, indeed, that first attracted my attention to the case. I feel well persuaded, that the court, upon graver consideration, will not hesitate, if it adhere to its first resolution at all, to confine it to civil cases and to prosecutions for the lesser misdemeanors.

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'But the necessity of making this discrimination, does in effect, according to my plain sense of things, condemn the whole proposition. For I apprehend, it will be impossible to find any reason of policy, much more any reason of law, why the privilege of the citizen to defend his property, upon the question of fact before the jury, against the claim of his neighbor or an



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