Page:The Green Bag (1889–1914), Volume 04.pdf/39

 24 how imperfect a privilege would that be, if the forms of law were abandoned, if the rules of evidence were dis regarded? An essential ele ment in the trial by jury is that their verdict shall be rendered according to the facts of the case, legally produced to them. They are sworn to give their verdicts according to evidence; and if they find without evidence, a new trial will be granted. They cannot even render a verdict upon knowledge within their own breasts; but if a juryman has knowl edge of facts pertinent to the issue, he may be sworn. The law, with great careful ness, prescribes rules by which facts are to be sub mitted to the jury. Testi mony must be relevant, — the best evidence the nature of the case admits must be produced; hearsay is ex cluded; interest in the wit ness will disqualify, etc.; and, by our own Constitution, in criminal cases the witnesses are to be confronted with the prisoner. He has in all cases the right of crossexamination. All these and many more rules are pre scribed for the ascertain ment of the truth of those facts upon which verdicts are to be rendered "When counsel are per mitted to state facts in argu ment, and to comment upon them, the usage of the courts regulating trials is departed from, the laws of evidence are violated, and the full benefit of trial by jury is therefore denied. It may be said,in answer to these views, that the statements of coun sel are not evidence; that the court is bound so to in struct the jury, and that they are sworn to render a ver dict only according to the evidence. Whilst all this is true, yet the effect is to bring the statements of counsel to bear upon the verdict with more or less force, accord-

evidence, or upon evidence incompetent, or not legally admissible for any cause, a new trial will be granted. They cannot even render a verdict upon knowledge within their own breasts; but if a juror has knowledge of facts pertinent to the is sue, he may be sworn. The law, with great care, pre scribes the rules by which the facts are to be submitted to the jury. The testimony must be relevant; the best evidence the nature of the case admits must be pro duced; hearsay is excluded; it must not be drawn out by leading questions; and, by our Constitution, in criminal trials the witnesses must be confronted with the pris oner : the right of crossexamination exists in all cases All these and numer ous other regulations are prescribed to determine the admissibility and truth of the facts pertinent to the issue upon which a verdict is to be rendered.

"When counsel are per mitted to state facts in argu ment, and to comment upon them, the usage of courts regulating trials is departed from, the laws of evidence are violated, and the full benefit of trial by jury is de nied. It may be said, in answer to these views, that the statements of counsel are not evidence; that the court is bound so to instruct the jury, and that they are sworn to render their ver diet only according to evi dence. All this is true; yet the necessary effect is to bring the statements of coun sel to bear upon the verdict with more or less force, ac-

ing to circumstances; and if they in any degree influence the finding, the law is vio lated, and the purity and im partiality of the trial are tarnished and weakened. If not evidence, then without doubt the jury have noth ing to do with them, and the lawyer no right to make them. And just here the argument might be rested. It is not reasonable to be lieve that the jury will dis regard them. They may struggle to disregard them, and still be led involunta rily to shape their verdict under their influence. That influence will be greater or less, according to character of counsel, his skill and adroitness in argument, and the naturalness with which the statements stand con nected with other facts and circumstances in the case. To an extent not defina ble, yet to a dangerous extent, they are evidence, not given under oath, — without cross-examination, and irrespective of all those precautionary rules by which competency is tested."

cording to circumstances; and if they in the slightest degree influence the finding, the law is violated, and the purity and impartiality of the trial tarnished and weak ened. If not evidence, then manifestly the jury have nothing to do with them, and the advocate has no right to make them. It is unreason able to believe the jury will entirely disregard them. They may struggle to disre gard them, they may think they have done so, and still be led involuntarily to shape their verdict under their in fluence. That influence will be greater or less, accord ing to the character of the counsel, his skill and adroit ness in argument, and the force and naturalness with which he is able to connect the facts he states with the evidence and circumstances of the case. To an extent not definable, yet to a dan gerous extent, they unavoid ably operate as evidence which must more or less in fluence the minds of the jury, not given under oath, without cross-examination, and irrespective of all those precautionary rules by which competency and pertinency are tested."

Judge Nisbet's mental organism had one singular defect; on the subject of spelling his mind was a howling wilderness. He could not spell nor learn to spell the com monest words. His method of orthography resembled a cyclone in chaos, — a law unto itself. I have seen a letter from him in which he spelled " secession " three ways; he drafted the ordinance of secession for Georgia, but never learned to write that his torical word. He humorously confessed his phonetic but revolutionary methods with the alphabet, and cheerfully submitted to the reporter's revision of his decisions. An anecdote he loved to tell is in order. He concluded a decision with the maxim, Id cerium est quod reddi cerium potest