Page:Federal Reporter, 1st Series, Volume 10.djvu/213

 GUITEAU'S CASE. 201 �respect of his most ardent opponents." * * * "He enduied the most anxious labor to prevent " the peiialties of the law " falling on one who, towever guilty, was net siibjected to its infliction by the plainest construction of the law." I have in my possession briefs of counsel in Fries' case, in which Mr. Eawle, United States district attorney, conducted the prosecutions, and the notes of other criminal prosecutions, in Gen. Washington's administration, in which Mr. Eandolph and Mr. Bradford prosecuted as attorney general. In these notes, and in the printed reports of these cases, nothiiig is more reniark- able than the scrupulous semi-judicial dignity of the district attorney and of the attorney general; and the same remarie may be made as to the coiidnct of Mr. Wirt, during his long incumbency of the attorney general's chair, in the management of the many cases in which he prosecuted. It is questionable whether the district attorney or the attorney general, as the case may be, should net, in all cases not quasi civil, take exclusive control of the prosecu- tion. But however this may be, the prosecution should be conducted with dignity, and without resort to personal altercation with and vituperation of a prisoner, no matter how vile he may be. And this is for two reasons. In the flrst place, what may be done in one case may be done in another, and all criminal trials would become scenes of disgracef ul uproar and Biljihgsgate abuse. Men of dignity and delicacy would be excluded from criminal courts if these be the weapons to be used, and public justice would sufEer a serious shock in the turmoil in which trials would be thrown. Secondly, the effect of altercations of this kind is in the prisoner's favor, and an unjust acquittai may be produced from a feeling of reaction against an indecorous prosecution. �The only question of doubt in the Guiteau case is that of jurisdiction. So far as concerns the reason of the question, apart from authority, Judge Cox's ruling cannot be assailed. Whether, however, the weight of authority is uot dgainst that ruling, is a point for the appellate court to determine. �Pkancis "Whakton. �Note. The charge to the jury, delivered by Judge Cox in the celebrated Guiteau case, is a masterly exposition of the law governing the case. That it is borne out by the authorities on each point enunciated will be readily seen. As to the constitutional rights of the aecused, he certainly did enjoy the right to a speedy and public trial by an impartial jury ; and he was in- formed of the nature and cause of the accusation ; was confronted with the ■witnesses against him, and had compulsory process for obtaining witnesses in his favor, and at the expense of the government ; and he not only had the right to have the assistance of counsel, but also exercised the right to appear for liimself as counsel. It was the duty of the court to lay down the law in this case, as the jury are not constituted judges of the law in criminal cases, Fieree v. State, 5 How. 504; U. S. v. 3Iorris, 1 Curt. 23; U. 8. v. Shire, Bald, 510; U. S. V. Battiste, 2 Suran. 243. �To eonstitute malice in law, hatred, ill-will, and the like need not exist. U^ S. V. Ross, 1 Gall. 624; People v. Taylor, 36 Cal. 255; Stiles v. -Ste*e,.57 Ga. 183; State v. Hays, 23 Mo. 287; Revel v. State, 26 Ga. 280. �To eonstitute murder in the flrst degree the act should not only be wilful,. ��� �