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evidence. The preservation of this accuracy is fitly committed to the experience of the judges.

With regard to oral evidence, or the testimony of witnesses, the rule of the law is, that proper testimony may be received from the mouth of every intelligent person, who is not infamous or interested. Concerning the points of intelligence, of infamy, and of interestedness, a great variety of rules are established by the law. To apply those rules to cases which occur in the course of practice, is, with obvious propriety, allotted to the judges.

In one of those subjects, however-I mean the interest of witnesses-the line of division, between the province of the judges and that of the jury, is faintly marked, and difficult to be ascertained. The degrees of interest are so numerous, and the effects of the same degree of interest upon different characters and in different situations are so diversified, that it is impracticable, in many instances, to define exactly the precise boundary, at which the question of competency ends, and the question of credibility begins. In doubtful cases of this description, the judges, especially of late years, presume in favour of the province of the jury. This is done with great reason. For an objection, urged, without success, against the competency of a witness, may be urged successfully against the credibility of his testimony; and to the objecting party it is altogether immaterial, whether the testimony of the witness is rejected or disbelieved. When an objection, says my Lord Hardwicke, is made against a witness, it is best to restrain it to his credit,

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unless it is like to introduce great perjury; because it tends to let in light to the cause.


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In arranging and in summing up the evidence, the court, from their knowledge and experience of business, can give great assistance to the jury. In questions of law emerging from the evidence, the assistance of the court is still more necessary and essential. Lord Chief Justice Hale observes, that a judge may be of much advantage to the jury, by showing them his opinion even in matter of fact." Of the sentiment of a judge so exemplary in his delicacy as well as in his candour, I risk not the disapprobation; but I add, that this power can never be exercised with a reserve too cautious.

We have seen, by a number of instances, how, in the administration of justice, the jury receive assistance from the judges. Let us now see how the judges receive assistance from the jury.

Hardw. 360.

"Ex facto oritur jus." The jury lay the foundation of truth, on which the judges erect the superstructure of law. A correct statement of the facts, every professional gentleman knows, is necessary to an accurate report. A true verdict given by the jury, is an essential prerequisite to a just judgment pronounced by the court. Judgments in supposed cases may abundantly evince professional skill; but they will never have a decisive influence over society-they will never come home to the business and bosoms of the citizens-unless they are practically founded on the manners, and characters, and rights of men. The manners, the characters, and the

Hale. Hist. 256.


rights of men are truly and practically reported by the verdicts of juries.


To judges of a proper disposition, the assistance of juries is soothing as well as salutary. In criminal cases, it is unquestionably so. "To say the truth"-I use the language of the humane LordChief Justice Hale-"it were the most unhappy case that could be to the judge, if he, at his peril, must take upon him the guilt or innocence of the prisoner, and if the judge's opinion must rule the matter of fact." g

Take upon him the guilt or innocence of the prisoner! It may be soothing, indeed, to judges, to be relieved from this mental burthen, of all the most anxious: but upon whom methinks I hear a citizen ask-upon whom must this most anxious of all mental burthens be laid? How must it be born by those on whom it is laid?

This very serious and momentous question brings before us the trial by jury in a view, the sublimity of which I have often admired in silence; but which now -though I feel myself far inferiour to the task-I must endeavour to describe and explain. I solicit your candid indulgence, while I attempt to delineate the particulars, of which this prospect, magnificent and interesting, is composed; and then try, with unequal efforts, to convey the impression which naturally will result from the combination of the whole.

It will be necessary to review some principles, of which notice has been already taken in the course of my

8 2. Hale. P. C. 313.

lectures. In a former part of them h I observed, that, when society was formed, it possessed jointly all the previously separate and independent powers and rights of the individuals who formed it, and all those other powers and rights which result from the social union. I observed, that all those powers and rights were collected, in order to be enjoyed and exercised; that, in a nume. rous and extended society, all those powers could not, indeed, be exercised personally; but that they might be exercised by representation. I asked, whether one power might not be delegated to one set of men? and whether another power might not be delegated to another set of men alluding to the legislative and executive departments. I mentioned a third power of society-that of administering justice under the laws. I asked, whether this power might not be partly delegated, and partly retained in personal exercise; because, in the most extended communities, an important part of the administration of justice may be discharged by the people themselves. I mentioned, that all this has been done, as I should have the pleasure of showing, when I should come to examine our governments, and to point out, by an enumeration and comparison of particulars, how beautifully, how regularly, and how usefully, we have established, by our practice in this country, principles concerning the distribution, the arrangement, the reservation, the direction, and the uses of that publick power, of which the just theory is still unknown in other nations.

I have had the pleasure of explaining the powers, legislative, executive, and judicial, which the people have delegated: I come now to that part of the judicial

h Ante. vol. 1. p. 189–191.

authority, which they retain in personal exercise—I mean, the authority to decide in criminal cases; in cases, especially, of life and death.

This may be considered in two different points of light; as a power, and as a burthen. As a burthen, it is considered as too heavy to be imposed, as a power, it is considered as too great to be conferred, permanently upon any man, or any organized body of men. We have seen it a discretionary-so far it partakes of a legislative power. We have seen that, in large and extended communities, necessity directs the delegation of other legislative power. This is a species of legislative power, which may, and therefore should, be exercised in person. In cases of life and death, the standing jurisdiction remains with the people at large. As emergencies occur, an abstract of the people is selected for the occasional exercise of it. The moment that the occasion is over, the abstracted selection disappears among the general body of the citizens. No one citizen, therefore, any more than any other, can complain of this as an uneasy burthen. Except on particular occasions, and during those occasions, it is imposed on no one.

If jurisdiction in cases of life and death, considered as a burthen, is uneasy to those who bear it; considered as a power, it is tremendous to those who behold it. A man, or a body of men, habitually clothed with a power over the lives of their fellow citizens! These are objects formidable indeed. By an operation, beautiful and sublime, of our juridical system, objects so formidable are withdrawn from before the eyes of our citizens -objects so formidable do not exist. To promote an habitual courage, and dignity, and independence of sen

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