Hakim

“ The court asks, 'When can a man slay another? When can he sit as a judge passing upon the law and a jury passing on the facts, and then as a jury applying the law to those facts and finding a verdict, and then acting again as the court and entering up judgment, and then going out as a marshal or sheriff and executing that judgment, all at the same time, determining the law, determining the facts as judge, jury, and executioner, all at the same time?' And because of this question, stated as a preliminary to the laying down of the rule of law, the judgment is set aside. ”

“ The district attorney objects again, and the court again frankly sustains him. The easiest way is certainly being proved the best—for him.
Nothing is developed from the other witnesses, who repeat their testimony. The prosecutor remembers distinctly having his watch, though he knew nothing of its taking.
Then the young champion puts the prisoner upon the stand. Now, if God’s pity ever descends to temper the rigor of human judgment, here is its invocation—
His story is little and simple as his counsel translates it. ”

“ When a party is in such a condition he is the judge upon the bench and the jury in the box; and not only that, but he is the executioner. He finds what the facts are as a jury, and he makes an application of the law that he finds as a judge to these facts that he finds as a jury, he enters up a judgment, and he then and there, as a marshal, kills, in the furtherance of the judgment. ”

“ In the maxim, 'Ad quaestionem juris respondent judices, ad quaestionem facti respondent juratores,' the word 'quaestio' denotes an issue joined by the pleadings of the parties, or otherwise stated on the record, for decision by the appropriate tribunal. Issues of law, so joined or stated, are to be decided by the judge; issues of fact, by the jury. If the accused demurs to the indictment, an issue of law only is presented, which must be decided and judgment rendered thereon by the court, and by the court alone. ”

“ It is but natural, therefore, that you should lean to the cause of those who favour yours. In setting aside a Catholic as a juryman on the trial of Repealers, this is the imputation made upon him. Now, what is there in that to wound any man's feelings? Lastly, it is alleged that the presiding judge summed up in terms unfavourable to the Repealers. Of course he did; and, as an upright judge, how could he have done otherwise? Let us for one moment consider this point also. It is often said that the judge is counsel for the prisoner. ”

“ That the evidence is sufficient in law I am reluctantly compelled to decide. Whether the court which deals with points of this description will confirm my judgment or overrule it I cannot say. In the meantime, you must take it from me that you are legally justified in convicting the prisoner. [Pg 163] Whether you are really justified on the facts is, of course, a very different question.’
Impression among many that judge is going for acquittal. Jury still in doubt.
‘This is one of those cases which make a judge congratulate himself on the existence of trial by jury. ”

“ It is you, my Lord, who then try the crime, not the jury. As to the probable effect of the motion in arrest of judgment, I shall only observe, that no reasonable man would be so eager to possess himself of the invidious power of inflicting punishment, if he were not predetermined to make use of it.
⁠Again;—we are told that judge and jury have a distinct office;—that the jury is to find the fact, and the judge to deliver the law. De jure respondent judices, de facto jurati. The dictam is true, though not in the sense given to it by Lord Mansfield. The jury are undoubtedly to determine the fact ”

“ Let us return, however, to that point in the proceedings where the defendant has been "held for trial" by the magistrate. The prisoner's counsel now endeavors to convince the district attorney that "there is nothing in the case," and continues unremittingly to work upon the feelings of the complainant. If he finds that his labors are likely to be fruitless in both directions, he may now seek an opportunity to secure permission for his client to appear before the grand jury and explain away, if possible, the charge against him. ”

“ We had one chair, and Usher took it away "as a lady wanted it in Court." Lady no doubt a spectator—did she hunt in her pocket for half-a-crown? Anyhow, after two days in the passage, I have just given my evidence in Court, with fearful cold on my lungs, owing to the draught. Very hoarse. Ordered by Judge, sternly, to "speak up." Conscious that I looked a wretched object. Jury regarded me with evident suspicion. Severely cross-examined. Mentioned to Judge about my windows being smashed, &c.; could I receive anything for it? "Oh, dear no," replied the Judge; "we never reward Witnesses." ”

“ It is stipulated that judges, who are appointed by the crown, may not be dismissed except in consequence of judicial sentence, nor transferred against their wishes from one tribunal to another, unless in the event of a reorganization of the courts; [799] that they shall exercise their functions strictly in compliance with law; that in criminal cases and cases involving political offenses trial shall be by jury; that in the administration of justice there shall be, so far as practicable, publicity and oral procedure ”

“ THE QUALITY OF JUSTICE A young man sitting at the counsel table, and grown diffident the moment he finds himself on his feet, rises to address the court.
“If the court pleases,” he begins, and the court awakes with a start from a revery of dinner.
“Eh? Who is he?” the court whispers to the district attorney.
The officer scowls back and answers that he does not know.
The young man has heard.
“I am John Forrest, if the court pleases, admitted yesterday.”
“Precisely, sir,” smiles the court, icily; “but you are interrupting the trial of a cause. ”

“ That the acts and proceedings of these special tribunals need not be according to the course of the common law, but must be according to the exigencies of the state. Such has been the practice from the earliest period of the commonwealth, allowing finally, on appeal or otherwise, a trial by jury, since 1785. 7. That the proceedings of such tribunals, however constituted, are entitled to respect; they are not to be collaterally questioned; and after a length of time, everything is to be presumed in their favor, as in favor of any other tribunal. ”

“ The essential characteristic distinguishing the jury from the judge is especially marked by the origin of their authority; for the jury is a judge simply because he is a citizen, whilst the magistrate is a judge only by popular election or appointment by the head of the State. So that any one who has entered on his civil and political rights, and is of the necessary age,

ought, according to the spirit of the institution, to administer justice on every civil or criminal question, whatever its importance, and not only in giving the final verdict, but also in conducting the trial. ”

“ The lawman shall go out first if he is in good health, then the godis with their judges if they are not hindered; otherwise every one of them shall get a man in his place” (Grágás, i. 26) .
“If one or more judges retire, then the prosecutor has the right to invite to lot-drawing at the court all those who have cases before it, and decide the place where they shall draw lots about proffering the case. Every man who has a case before the court shall put one lot in a cloak skirt, though he has more than one case. ”

“ If they could legally decide upon questions of law, their decision must, of necessity, be final and conclusive, which would involve an absurdity in all judicial proceedings, and would be contradictory to the fundamental principles of our jurisprudence.' 'The jury, when called upon to decide facts which are complicated with law, are therefore constitutionally, and must be, from the nature and intention of the institution, bound to seek and to obey the direction of the judge with respect to the law. ”

“ Should the jury adopt the precedent of convicting a man under such circumstances, then God help the liberty of the citizen; but the consequences would rest upon the heads of them and their children. [Mr. Ashmead here read extracts from the opinions of eminent Judges, showing that a prisoner had a right to a preliminary examination before the case could go before the Grand Jury.] ”

“ When the responsibilities of lawmaker, prosecutor, judge, jury and disciplinarian are thrust upon a judge he is obviously incapable of holding the scales of justice perfectly fair and true and reflecting impartially on the guilt or innocence of the accused. ”

“ Lawful judges must on the contrary keep one ear unbiassed for the accused. If they give both to the pleadings of the opponents, and deliver a sentence acceptable to them, I shall put up with the injustice as bringing me nearer to the kingdom of heaven, and shall await that impartial tribunal, where there is neither prosecutor, nor counsel, nor witness, nor distinction in rank, but judgment of deeds and words and righteous retribution. ”

“ If relief on equitable grounds is to be obtained it is right that it should be sought by a formal suit upon adequate pleadings and should be granted only after a trial of issues according to the usual course of the trial of questions of fact. A court of first instance is the appropriate tribunal, and the only tribunal, equipped for such a trial. Appellate courts have neither the power nor the means to that end. ”

“ Dispualifications of grand jurors do not destroy the jurisdiction of the court in which an indictment is returned, if the court has jurisdiction of the cause and of the person, as the trial court had in this case. ”

“ The law has established this tribunal, because it is believed that, from its numbers, the mode of their selection, and the fact that the jurors come from all classes of society, they are better calculated to judge of motives, weigh probabilities, and take what may be called a 'common-sense view' of a set of circumstances, involving both act and intent, than any single man, however pure, wise, and eminent he may be. ”

“ A judge is prohibited from treating a case lightly or talking about useless matters in court. A judge should view it as if a sword has been placed on his shoulder and as if hell is open underneath him. ”

“ Nothing is more simple than an American court of justice. Four walls innocent of decoration of any kind, a few plain chairs or benches. No uniforms, no robes, no wigs, no trumpets, no liveried ushers. The judge and the barristers are in black frock-coats. The ushers are not quite so well dressed as the barristers, and that is all.
As in England, the accused is not allowed speech. If he has questions to put, his counsel is at his side, and speaks for him. It is the counsel who examine and cross-examine the witnesses, and plead before the jury. The judge presides, and does nothing more. ”

“ You are not a civil magistrate, not even a police court judge, and you cannot hold this boy for any jury, grand or little. You can make a charge against him, it is true, and then if the local magistrate considers the evidence good he will be held for the Grand Jury. ”

“ It is hard to believe that this Court should hold that a member of the legal profession is constitutionally entitled to remove his case from the court in which he is an officer to the public and press, and express to them his grievances against the conduct of the trial and the judge. ”

“ Whenever this judge-grand jury may summon a witness to appear, it is his duty to go and to answer all material questions that do not incriminate him. Should he fail to appear, fail to answer material questions, or should the judge-grand jury believe his evidence false and evasive, or deliberately contradit ory, he may be found guilty of contempt. This offense may be punishable by a fine of not more than $100, or imprisonment in the county jail not exceeding sixty days, or both, at the discretion of the judge-grand jury. ”

“ From the final decision of any court, justice, or judge inferior to the circuit court, upon an application for a writ of habeas corpus or upon such writ when issued, an appeal may be taken to the circuit court for the district in which the cause is heard: 1. In the case of any person alleged to be restrained of his liberty in violation of the Constitution, or of any law or treaty of the United States. ”

“ We therefore conclude that circuit courts of appeals do have the power under § 262 of the Judicial Code to issue an order in the nature of a writ of habeas corpus commanding that a prisoner be brought to the courtroom to argue his own appeal. ”

“ The accused is called upon before the same tribunal, and in many instances, before the same men, who sanctioned his official elevation, to answer for abusing the powers with which he had been intrusted. Men who are presumed to have had a favorable opinion of him once, are to be his judges; no inferior or co-ordinate tribunal is to decide on his case, which might from motives of jealousy or interest be prejudiced against him and wish his removal. No, sir, his judges, without the shadow of temptation to influence their conduct, are placed beyond the reach of suspicion. ”

“ While the counsel rehearsed the long array of judicial mistakes, the jurist on the bench was rehearsing mentally the points he meant to make in his charge to the Jury. As it took form, the Judge felt that it would be clear, logical and convincing, and would make the lawyer's plea seem foolishly emotional—unworthy of serious consideration by hard-headed men of the world. ”