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amercement at the suit of the commonwealth, should be more restricted (in the regard in which we are now considering it) than his privilege to defend his liberty or his life in prosecutions for crime. To allow the distinction, will be to reverse the known principle of the common law, which allowed counsel to the parties in a civil action and to those who were accused of misdemeanors, and denied counsel to persons accused of felonies counsel, I mean to argue the questions of fact upon the evidence before the jury. Property, if it be not as valuable, is just as sacred a right, as liberty or life, all civilized nations so regard it; and the bill of rights of Virginia, particularly, ranks in the same class, and secures on the same footing, "the enjoyment of life and liberty, with the means of acquiring and possessing property, and obtaining happiness and safety." Surely, this court will not give its sanction to a distinction between the means of acquiring and possessing and the means of defending property, and surely, too, the plus or minus cannot vary the principle.

'Let us, however, consider the question upon the hypothesis, that the proposition is to be confined to trials of civil cases and of the lighter misdemeanors.

"The power claimed for the court, is, that it may prevent the argument of the question of fact before the jury, when, in the opinion of the judge, the evidence touching the fact, is clear, distinct, and conclusive. If the counsel against whose client the evidence is adduced, be of the same opinion, he will not trouble himself, the court, or the jury, with argument: it is only in cases in which the counsel differs in opinion from the court, that this conflict between the powers of the court and the rights or rather the duties of counsel, is likely to arise. We are speaking of a general principle of practice, to be applied to all counsel; and it will never do to attempt a discrimination between counsel who (in the opinion of the judge,) are decorous and judicious, and counsel who are opinionative, impertinent, or weak. Is it not perceived, that the question always must be, whether the evidence be clear, distinct, and conclusive ? and that if the judge, having made up his mind upon that point (which it is not his province to decide) may prevent all argument before the jury upon the evidence, he denies the only means of showing either to them or to himself, that the evidence is not clear,

distinct, and conclusive? The claim to exercise such an authority, must always proceed upon a petitio principii. I repeat that juries often differ from the court, and sometimes repeated juries differ from the court upon questions of fact, depending upon evidence which the court thinks plain and irresistible; and every judge must remember many instances, in which doubts and difficulties and insurmountable objections, to the sufficiency of evidence, have been developed by the argument of counsel, that did not occur to him at the first impression.

'How is it possible for a judge to determine whether any argument before the jury can be proper and pertinent, or must be idle and useless, without hearing the argument? It must be admitted, on all hands, that a party to a civil action or to a prosecution for misdemeanor, has a strict right to a trial by a jury of his country of every question of fact, upon which his rights, his liabilities, or his guilt, may depend: neither, I presume will it be denied, that, generally speaking, he has a right to demand a hearing by counsel before the jury upon the evidence. The true question is, whether this be an absolute right, which he may claim ex debito justitiæ, like his right to common process, or his right to appeal from a judgment by which he thinks or fancies himself aggrieved, or his right to trial by jury? or, does the exercise of the privilege depend on the mere permission of the court? or is the claim of the privilege to be addressed to the sound discretion of the court? If it depend on the mere permission or allowance of the court, then it ceases to be a right or privilege in any sense; and it may be lawfully withheld, in cases of the most complicated, contradictory, and doubtful evidence, as well as in the simplest and plainest. If it be addressed to the sound discretion of the court; then, as in all other cases addressed to the discretion of the court, either party may except for an injudicious exercise of such discretion; and I do not see why one party may not object to the allowance of an argument before the jury, where he thinks there ought to be none, just as reasonably as the other party may object to the inhibition of argument, where he thinks it ought to be allowed. It must be so; unless the sound discretion in such cases, is a sound discretion sui generis, exceptions may be taken on either side the circumstances spread upon the record appeals or writs of error prosecuted. How is an appellate court to re

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view the judgment of a Circuit Court upon any such point? The words of the witnesses may, indeed, be spread upon the record but their characters for intelligence and integrity, for retentiveness or fallacy of memory, their temper towards the parties, their manner, and all the circumstances that affect the weight of viva voce testimony, cannot be spread upon the record. Add to this consideration, the known principle of presumption, that the judgment of an inferior court is right unless the contrary appear; and then, I think, it will be plain enough, that this discretionary power claimed for the court to interdict argument upon the evidence before the jury, will amount very, very nearly, to an absolute, arbitrary power, subject to no control, review, or correction.

'I admit, without hesitation, the general superintending control of a judge presiding at a nisi prius trial; but that authority cannot extend to the denial of any right or privilege given by law, or to the alteration of any settled rule or principle of practice.

'As to the convenience of a power in the judge to put a stop to idle and useless argument before the jury; I venture to affirm, that if the power be conceded to the judges, and be exercised by them in every case in which they shall conscientiously think its exercise proper, more time of the Circuit Courts will be wasted in altercations between the bench and bar, worse than idle, and more of the time of the appellate courts, in reviewing the exercise of the power, than can possibly be consumed by the utmost prolixity, pertinacity, and obstinacy of counsel; and more vexation to the courts, to the bar, and to the suitors, will flow from it, than from any principle of practice that the contempt of old and approved usages (ever fruitful of mischief) could devise.

'The dignity of a court of justice is part of its authority, which it is bound by its duty to the public carefully to preserve. Altercations between the bench and the bar, do indeed tend to degrade the bar, and to expose it to contempt; but they also tend, and that hardly in a less degree, to detract from the dignity of the court. Respect and delicacy towards the bar, will not fail to conciliate and to command respect and veneration which are certainly due from it towards the bench. In the feelings of the counsel, the feelings of their clients, in other words

of all the suitors in the court, will be sure to participate and unite. I implore the court to close the door to all such altercations between judges and counsel. If I know my own heart these sentiments are dictated by a yet more anxious concern for the authority and dignity of the judges, than for the rights of counsel.

'It is hardly necessary to add, that I am very far from believing, that in the case now before the court, any actual oppression was practised or intended; and I trust that nothing I have said will have the least color of disrespect or want of confidence.'

After this argument was furnished, the case remained on the docket until July, 1831, when the first term of the General Court was held under the new Judicial system adopted in Virginia. At this first term, all of the judges who hold the Circuit Courts throughout the state, were required to attend. These judges are twenty in number; and seventeen of them were present when this case was under advisement, to wit:

Judges Brockenbrough, Smith, Parker, Lummus, William Browne, Allen Taylor, Upshur, Field, Lomax, Robert B. Taylor, Scott, Leigh, Thompson, Estill, James E. Brown, Duncan, and Fry.

July 11th, Upshur J. delivered the opinion of the court.

After disposing of the questions unconnected with the bill of exceptions, one of which was decided in favor of the accused, the court proceeded as follows:

'The bill of exceptions presents a question of considerable interest; and although the case might be disposed of without a decision of it, yet as there is a full court, it is thought best by a majority of the judges now to decide it. That question is, whether in a criminal case, on the trial of a question of fact before a jury, where the evidence is all on the side of the Commonwealth and is unimpeached, and the court is of opinion that it is clear and distinct to the fact charged, and cannot be varied by argument, it may, in its discretion, prevent the counsel for the accused from arguing the question of fact before the jury. It is the right of every party accused, to be heard by counsel on his whole case. The credibility of the evidence is not only a material, but the most, if not the only material part of every case which depends on a question of fact. Of this credibility,

the jury alone are the judges; and they may form their opinions, not only on the characters of the witnesses, as persons of truth, but on their manner in giving their testimony, on their relation to the parties, their opportunities of being correctly informed, and on a variety of other circumstances which may be calculated to affect their judgments. The right of the accused, therefore, to be heard on his whole case, involves directly the right to be heard on the credibility of the evidence against him. The fact that the evidence is direct to the point in issue, and must establish that point or not, according as the evidence is credible or not, even though coupled with the fact that there is no direct evidence to impeach its credibility, does not alter the principle, nor present a case to which the principle cannot apply. The only question may be, whether the evidence is credible or not, and that question may be decided as above stated from a variety of circumstances attending the case, other than conflicting testimony; which circumstances the jury alone are to weigh. To deny to the party, therefore, the right to be heard in a case of this sort, is, in effect, to deny him all right of defence whatsoever. It is not for the court to say beforehand to what point the counsel means to direct his argument. If there be any point in the issue before the jury, on which their minds may be enlightened or their consciences satisfied by argument, the accused has an undoubted right to all the advantage which may be derived from that source. This right would be utterly destroyed by allowing the court to prohibit argument, merely because in its opinion, the evidence was so clear that argument could not vary it. Nor is this the only case in which an argument before the jury might be of importance to the accused, however direct and uncontradicted the evidence against him might be. We deem it unnecessary, however, to enter more at large into an investigation of the subject, since we have no difficulty in deciding, upon the single view of it above presented, that the court had no right to inhibit argument in the case before us. But while we decide thus, we are not to be understood as restricting in any degree the power of the court to prevent an abuse of this or any other right of counsel, by exercising a proper control over the course of argument.' From this opinion only one judge dissented.

The General Court being the supreme criminal tribunal in

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