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law student. To him we recommend it, as an authoritative exhibition of correctness in judicial proceedings, displaying the application of principles to practice. But the book is printed on poor paper, and in a miserable style of execu tion. Frequent and scandalous errours occur in the orthography. It has all the marks of hurry, which no necessity will palliate, and for which the editors, considering the dignity of the subject, and the extensive patronage, which they had obtained, are inexcusable. We have seen the first volume of Smith's edition of the trial, which is executed, in point of typographical neatness, with much greater care, and in a superiour style. In Evans's report, the arguments of the counsel for the respondent, and in Smith's edition, the arguments of the managers were revised and corrected by them prior to their publication. So far as we able to judge, by comparing the speeches of the respective orators in the two editions, it is generally true, that in both they have been reported with fidelity. Where they have been revised and corrected by the orators, many of them are worthy of the occasion, and do honour to the taste and eloquence of our country. To those, who are 'conversant in courts of justice, it is well known, that to speak eloquently on important subjects, without deep premeditation, requires the highest efforts of the human intellect. The report of a speech is usually, though not necessarily, an abridgment of it. The reporter is solicitous to catch the sentiment. He is seldom able to exhibit the beauties of style and manner. He can preserve the bones and sinews. The anatomy may be perfect, but the delicate shades of complexion, and the

graces of form and gesture are gone.

The managers on the part of the house of representatives, were, Messrs. John Randolph, Rodney, Nicholson, Early, Boyle, and G. W. Campbell. The counsel for the respondent were, Messrs. Harper, Martin, Hopkinson, Key, and C. Lee.

The replication to the answer of the respondent, filed by the managers, on behalf of the house of representatives, was framed from the form of the replication, which was filed in the celebrated case of Warren Hastings.

Mr. Randolph opened the cause on the part of the house of representatives in a speech, in which he took a general survey of the charges. We naturally expected, that Mr. R. would, in this speech, have exerted all his talents, to give the most clear and favourable appearance to the cause, which he supported. We expected, that after a brief and clear exhibition of the charges, he would have followed the respondent's plea, and displayed, what is styled in the replication, "its evasive insinuations," and its misrepresentation of facts:" and, since it was "utterly false and untrue," that he would have stript it of" its gloss and colouring." Much time having elapsed, since the subject had pressed on his attention, it would, we presume, have been easy for him ; and, considering the novelty of the occasion, it would have been useful, briefly to have exposed the law of impeachment. But his speech is extremely barren of mat ter, and defective in argument. Even in its revised form, it has none of those qualities, which constitute eloquence. It is not recommended to us by the poor merit of splendid declamation, or of

ingenious sophistry. In fact, the Sampson seems to rise up among the Philistines, shorn of his locks. The following passage will give an idea of his manner. It is animated, but the sentiment is extremely incorrect and paradoxical. Its tendency is to extend impunity to criminals, by dissolving their counsel from the observance of the salutary maxims of the law in the conduct of their trials.

We are prepared to prove, what the respondent has in part admitted, that he "restricted the counsel of Fries from

citing such English authorities as they believed apposite, and certain statutes of the United States, which they deemed material to their defence ;" that the prisoner was debarred by him from his constitutional privilege of addressing the jury, through his counsel, on the law, as well as the fact, involved in the verdict which they were required to give-and that he attempted to wrest from the jury their undeniable right to hear argument, and, consequently, to determine upon the question of law, which in a criminal case it was their sole and unquestionable province to decide. These last charges (except so far as relates to the laws of the United States) are impliedly admitted by the respondent. He confesses, that he would not permit the prisoner's counsel to cite certain cases, "because they could not inform but might deceive and mislead the jury," Mr. President, it is the noblest trait in this inestimable trial, that in criminal prosecutions, where the verdict is general, the jury are the sole judges, and, where they acquit the prisoner, the judges, without appeal, both of law and fact. And what is the declaration of the respondent but an admission, that he wished to take from the jury their indisputable privilege to hear argument and determine upon the law, and to usurp to himself that power, which belonged to them, and to them only? It is one of the most glorious attributes of jury trial, that in criminal cases (particularly such as are capital) the prisoner's counsel may (and they often do) attempt ❝ to deceive and mislead the jury." It la essential to the fairness of the trial, that it should be conducted with perfect Vol. 111. No. 1.

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freedom. It is congenial to the gener ous spirit of our institutions to lean to the side of an unhappy fellow creature, put in jeopardy, of limb, or life, or lib erty. The free principles of our gov ernments, individual and federal, teach us to make every humane allowance in his favour, to grant him with a liberality, unknown to the narrow and tyrannous maxims of most nations, every indulgence not inconsistent with the due administration of justice. Hence a greater latitude is allowed to the accused, than is permitted to the prosecutor. The jury, upon whose verdict the event is staked, are presumed to be men capable of understanding what they are called upon to decide, and the attorney for the state, a gentleman learned in his profession, capable of detecting and exposing the attempts of the opposite coun

sel to mislead and deceive. There is moreover the court, to which, in cases of difficulty, recourse might be had. But what indeed is the difficulty arising from the law in criminal cases, for the most part? What is to hinder an honest jury from deciding, especially after the aid of an able discussion, whether such an act was alling with malice prepense, or such other overt acts set forth in an indictment, constituted a levying war a gainst the United States-and to what purpose has treason been defined by the constitution itself, if overbearing,arbitra ry judges are permitted to establish a mong us the odious and dangerous doctrine of constructive treason? The acts of Congress which had been referred to on the former trial, but which the re

spondent said he would not suffer to be cited again, tended to shew that the of fence committed by Fries did not amount to treason. That it was a misdemeanor, only, already provided for by law and punishable with fine and imprisonment. The respondent indeed denies this part of the charge, but he justifies it even (as he says) if it be proved upon him. And are the laws of our own country (as well as foreign authorities) not to be suffered to be read in our courts, in justifi cation of a man whose life is put in jeopardy!

The examination of the witnesses followed. In this interesting part of the work, we observe great attention paid to those rules of evidence, and maxims of conduct,

which are justified by the authority of judicial tribunals. In the trial of Warren Hastings, the managers on the part of the Commons contended, with persevering obstinacy, that they ought not to be bound by the rules of legal proceeding, which are observed in other cases, and before inferiour tribunals. The Commons, said Mr. Burke, dísclaim all knowledge of pleading as a science. They are not clerks, but plain, simple laymen. If they speak the language of reason and plain sense, they are not bound to plead tech nically, or to speak according to the terms of science. By the constitution,the Lords are not consider ed as learned in the law, but merely as Barons, Swordsmen, and Cavaliers, with whom are mixed the Bishops, and it would be proper for them therefore to judge ac cording to the principles of natu ral justice, and not according to certain narrow rules laid down in other courts. But in the whole course of that trial, their Lordships acted on quite different principles, and demonstrated by their decis ions, that there was not, in their opinion, one rule of evidence, which did not apply to the House of Lords, as much as to any inferiour court in the kingdom. Mr. Burke denied, that there was any such thing as rules of evidence, and contended that all evidence must vary in its matter and in its manner, as the nature of each case varied. But his idea was extremely incorrect for the rules of evidence result from the nature of things, and, like the laws of nature, are immutable. By these rules, it is not intended, that the same evidence will prove all cases: they respect rather the quality and degree of proof necessary to substantiate a fact. That oral

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testimony, for instance, Is i admissible to prove the contents of a deed, or written instrument, which are in existence; that the copy of an instrument shall not be used, where the original can be produced; and that a witness shall not be permitted to testify, unless under the solemnities of an oath; are rules of evidence, which cer tainly are founded in nature, and can never vary with the varieties of legal occasions, or be dispensed with by any tribunal.

Mr. Early's speech follows the examination of the witnesses. It commences with the following observation, which we find, in its revised state, in Smith's edition."There is no attitude, in which the government of this nation can be viewed, more completely demonstrative of the efficacy of its principles, than that, in which it is how placed." Whether Mr. E. thought that, at that time, the gov ernment was standing, or walking, or sitting, or sleeping, we know not; and how the attitude of a government should demonstrate its principles, is a little mysterious. It appears to us as difficult to comprehend, as it would be to ascertain, from a man's gait, whether he were a Roundhead or a Cavalier. Sallust remarks a peculiarity in Cataline's gait "citus modò, modò tardus incessus" : sometimes walking rapidly, then suddenly stopping and looking, as though he feared that he was pursued. This indicated a mind, haunted with the images of former crimes, and loaded with the consciousness of guilt. But the use of this rhetorical figure in the present instance is the first time that we have seen it applied to a body politick; and we leave it with this one observation, that its use has not yet been established by standard au

thority. Mr. E.'s speech abounds with hyperbolical expression and superlative epithet, which, like profane and idle oaths and impre cations in common discourse, indicate a poverty of invention as well as a corrupt taste. His view of the subject is very general. Something like an argument is attempted on the first article, but his manner throughout is loose and declamatory.

We are better pleased with Mr. Campbell's speech, as it appears revised in Smith's edition. His style is plain and impressive, with out an attempt at any great degree of elevation. He confines himself to an investigation of the conduct of the respondent at the trials of Fries and of Callender. His view is general, and executed with considerable ability. vastly superiour to the vapid performance of Mr. Early. Even the freedom, with which he treats the respondent, and the resentment, which he expresses at his conduct, are excusable, because they are the prerogative of animated debate.

It is

This volume next presents us with the speeches of Messrs. Hopkinson, Key, Lee, Martin, and Harper. They are models of forensick eloquence. We have devoted so much attention to the answer of the respondent, that we must be content to give our opinion of the character of the arguments for and against the prosecution, without minutely analysing them, and without the insertion of copious extracts.

The defence was commenced by Mr. Hopkinson, the introduction to whose speech is truly eloquent and impressive. It is confined to a defence of the respondent on the first article. The language is The language is

dignified, and the whole oration is not unworthy, for its excellent substance and elegant form, to be compared with some of the celebrated productions of the Roman bar.

Mr. Key's speech is confined to the second, third, and fourth articles of impeachment, and is, to use the language of Mr. Lee, in the style and manner of an "elegant advocate."

Mr. Lee's speech displays much judicial skill, united to an ease and simplicity of manner, which are highly pleasing.

Mr. Martin confines his particular attention to the fifth and sixth, after a survey of the preceding ar ticles of impeachment. He discusses with great ability the relative duties of judges and counsel, and the respective rights of judges and jurors.

He incontestibly

proves, on the authority both of precedent and reason, that the right of the court to decide the law, is the same in criminal as in civil cases. He demonstrates, that the process, issued by the respondent in the case of Callender, was correct. "Two highly respecta ble legal characters in Virginia, who successively held the office of attorney general (Col. James and Gen. Brooke) were applied to by one of their deputies, and declared themselves incapable to decide, what ought to be the practice; or in other words, to decide in what cases a summons ought to be used, and in what cases a capias was the proper process." This point, which had puzzled the Virginia lawyers, Mr. Martin, by his luminous investigation, has, we presume, settled; for which service the bar of that state ought to be very grateful. The style and manner of Mr. Hopkinson is very

dissimilar to those of Mr. Martin. The former resembles a majestic stream, flowing with silent grandeur down its lofty banks. The latter is a torrent, which bears down all before it. Mr. Martin's conclusion is abrupt, and unequal to the preceding parts of his oration. After a minute and somewhat dry discussion of a point of legal practice, extracted from statute provisions, the orator ought gradually to have descended from the height of legal abstrac tion, and relieved the mind of his auditors by a conclusion of a mild er and more dignified form.

Judge Chase's defence was con▾ cluded by Mr. Harper. His speech has less of a professional dress, than either of those, which were delivered by his associates. It is calculated for an assembly, which, like the senate, was composed of eminent characters from the various professions in society. The distinguishing trait of this speech is the candour of the orator. He boldly meets the facts in the case, as they had been related most to the disadvantage of his client, and satisfactorily shews, where the witnesses must have been mistaken, and where the acts, charged as criminal in the respondent, were judicially correct. Candour is the legitimate offspring of a magnanimous and liberal spirit. So much does it gain on the hearts of men, that its form is often artfully assumed even for dishonest purposes. Orators at the bar are generally unwilling to yield any thing to their antagonists. But who, that has any experience, will not confess, that there is in almost every cause good and evil. It is a departure from moral purity, to attempt to give to wrong the appearance of right. When an prator has defended his client,

where his conduct admits defence; when he has with warmth of heart and eloquence of language, urged in his behalf, whatever is consistent with good logick and truth, he has honourably discharged his duty, and ought then to submit to the decisions of those, who are invest, ed with the authority to decide.

In assigning to contradictory testimony the grades of credit, to which its several parts are entitled, in elucidating dark passages, and in extracting from the informal mass the forms and proportion of truth, are among the most difficult tasks of forensick orators. There was, in this case, much occasion for legal discrimination, and of this talent Mr. Harper appears to be eminently possessed. His lan guage is uniformly dignified, and strictly within the limits of decent and manly expostulation. He takes a general view of the whole subject of impeachment, but more particularly confines his attention to the transactions at New Castle in Delaware, and to the eighth charge.

Whoever reads this case must be sensible, that the managers had to contend with complicated embarrassments. The counsel for the respondent were from among the most eminent professional characters in the United States. The facts contained in the articles could not, with all the authority of the accusing power, and with all the zeal and ability of the managers, be shewn to be subject of impeachment. Strip them of their technical language, reduce them to the "simple elements of their own merit," and what will remain against the respondent, which indicates a crime? Feeble as was the accusation, it derived no strength from the testimony, after a most thorough investigation of which,

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