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times the double vote of a perfon, who firft votes with the reft, and then, upon an equality, creates a majority by giving. a fecond vote.

[C.]

4 Burns, 184, 15th edition.

It feemeth certain, that the feffions hath no authority to amerce any justice, for his non-attendance at the feffions, as the judges, of affize may, for the abfence of any fuch justice at the gaol delivery: for it is a general rule, that inter pares non eft poteftas, it being reasonable rather to refer the punishment of of perfons in a judicial office, in relation to their behavior in fuch office, to other judges of a fuperior ftation, than to those of the fame rank with themselves. And therefore it feems to have been holden, that if a juftice of the feffions, who is not of the quorum fhall ufe fuch expreffions towards another who is of the quorum, for which if he were a private person he might be committed or bound to his good behavior, yet the, feffions hath no authority to commit him, or to bind him to his good behavior. And yet it seems to be agreed, that if a juftice give just cause to any perfon to demand the furety of the peace against him, he may be compelled by any other juftice to find fuch fecurity; for the public peace requires an immediate remedy in all fuch cafes,

[D.]

Procter's cafe, 12 Cook, Rep. 118.

In an information preferred in the Star Chamber by the af torney-general, againft Stephen Procter, Berkenhead and others, for fcandal and confpiracy of the earl of Northampton, and the lord Wooton. At the hearing of this cafe, were present eight lords, Scil the chief baron, the two chief juftices, two' bishops, one baron, the chancellor of the exchequer, and the lord chancellor. And the three chief juftices and the temporal barons condemned fir Stephen Procter, and fined and imprifoned him but the lord chancellor, the two bishops and the chancellor of the exchequer acquitted him. And the queftion was, if fir Stephen Procter fhall be condemned or acquitted; and it seemed to fome of the clerks, prima facie, that the better fhall be taken for the king, and that he fhall be condemned. But others were of the contrary opinion, and hereupon the matter was referred to the two chief juftices, calling to their affiftance the king's learned counfel. And first they refolved that this question must be determined by the precedents of the court of Star Chamber, for that court is against the rule and order of all other courts, for in the king's bench,

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the common pleas, or the exchequer, or in the exchequer chamber, where all the juftices are affembled, if the juftices are equally divided, no judgment can be given; and fo it is in the court of parliament; and, therefore, this course ought to be warranted by the custom of the court. And as to that, two precedents only were produced for the maintenance of the faid cuftom, viz. one in the Hillary term, 30, El. between Gibfon, plaintiff, Griffith and others, defendants: where the complaint was for a riot, and at the hearing of the cafe, there were 8 prefent; four gave their judgments that the defendants were guilty but the other four, whereof the lord chancellor was one, pronounced the defendants not guilty, and no fentence of condemnation was ever entered, because the lord chancellor was one of the four who acquitted them. The other was Hill, 45. Eliz, in an information by the attorney-general against Catharine and others, for forging of a will, and a misdemeanor for procuring a fraudulent deed to defeat the queen of her efcheat: And eight were in prefence in the hearing of the caufe, whereof four found the defendants guilty of forgery, and did inflict the punishment according to the ftatute of the 5 Eliz. but the others, whereof the lord chancellor was one, gave sentence that the defendants were guilty of the misdemeanor, and not of the forgery, and impofed a fine of £.500 only; which decree was entered according to the lord chancellor's voice, although the fentence on the other fide was more beneficial for the king: and no other precedent could be found in this cafe, the which I have reported this term,

[E.]

State Trials, p. 168. Fitzharris' cafe.

After the arguments, the chief justice, in show, at least, very favorably, offers the prifoner's counfel liberty to amend the plea, if they could; which they (apprehending as they had reafon, for I think none can fhew how it might have been mended, rather a catch than a favor) refused to do; whereupon the court took time to confider of it; and on the 11th of May, there being a great auditory, rather to hear how the judges would bring themselves off, than to know what the law of the plea was, the chief justice, without any reasons, delivered the opinion of the court, upon conference had with other judges, that his brothers Jones, Raymond and himself, were of opinion. that the plea was infufficient; his brother Dolben not refolved, but doubting concerning it, and therefore awarded the prisoner fhould plead to the indictment, which he did, not guilty; and his trial ordered to be the next term.

I think it would puzzle any perfon to fhew, if ever a court of Weftminster-Hall thought a matter to be of fuch difficulty, as fit to be argued, that they gave their judgments afterwards without the reafons: 'Tis true, that the courts of civil law allow debates amongft the judges to be private among themfelves; but the proceedings at common law always were, and ought to be, in aperta curia. Had this practice taken place heretofore, as it hath of late (but all fince this precedent) no man could have known what the law of England was, for the year books and reports are nothing but a relation of what is faid by the counfel and judges in giving judgment, and contain the reafons of the judgment, which are rarely expreffed in the record of the judgment; and it is as much the duty of a judge to give the reafons why he doubts, as it is of him who is fatisfied in the judgment. Men fometimes will be ashamed to offer thofe reafons in public, which they may pretend, fatisfy them, if concealed; befides, we have a maxim in law undeniable, and of great use, that any perfon whatever may rectify or inform a court or judge publicly or privately, as amicus curie, a friend to the court, or a friend to juftice: But can that be done, if the ftanders-by know not the reafon upon which the court pronounce their judgment? Had the three judges, who were clear in their opinion, given their reasons. of that opinion, perhaps fome of the ftanders-by might have fhewed reasons unthought of by them, to have made them flagger in, if not alter that opinion; or if juftice Dolben had given the reafon of his doubt, perhaps a ftander-by might have fhewn him a reafon, unthought of by him, which would have made him pofitive that the plea was or was not a good plea,

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Eunomus, 3 vol. 3d Dial. 229, 230.

But, fecondly; in the course and management of a trial,.. other perfons are likewife under an oath, and have their duties incumbent on them alfo. Now, without looking into the oath of a judge, it will be easily understood to be inconfiftent with his duty and his oath, to be a mere cypher on the bench; a judge, however, will be little more than a cypher, either if he fits and fays nothing, or if what he does fay is to go for nothing. I have already infifted, the jury's unacquaintance with law, makes it neceffary for the judge to tell them what the law is, in the cafe before them. He tells it them furely to very little pur pofe, if they think themfelves afterwards at liberty to deter mine otherwife.

Gentlemen of the Jury,

[G.]

Refuming thofe judical duties which on a former occafion I have been prevented to discharge, under the existing circumtances, I find it incumbent upon me to offer you now a few obfervations.

That the powers which you are vefted with, as the grand inqueft of Allegheny county, are extenfive and tranfcendant, is a truth which every one of you cannot be ignorant of; that in the exercife of these powers, a fpacious fphere is allowed to your difcretion, muft be equally well known.--Your country leaves to your confcience and your judgment, under the guidance of the law and affifted with the direction of the court, to enquire and fearch into all and every infringement of the laws; likewife to prefent or find bills againft any body you have reafon to believe to be a public offender or tranfgreffor, without refpect of perfons, and against none but those whom you believe to have tranfgreffed,

Unfortunately, experience teaches us, that with men in general, paffions take often the lead of duties; there are but a few informers, indeed, that step forward merely from a genuine sense of duty; a fpirit of vengeance or of party (the general caufes of malice) is often at the bottom of the denunciation. It behoves a good jury to ufe all the fagacity they are possessed of, in attending and weighing all circumftances; likewise in diftinguishing between the witneffes that deferve credibility, and those that deserve none : for, if it is highly important that the tranfgreffors should not efcape, it would be lamentable indeed, should an innocent and perhaps an indigent man fall a victim to a vexatious profecution. Thus, gentlemen, your good fenfe and uprightness leads me to confider you under two points of view; that is as a body of fagacious men, to whofe vigilance none that are guilty of crimes or misdemeanors will èfcape, and as an afylum and fanctuary for the innocent and perfecuted.

I make no doubt, but you know as well as me, that a virtuous and an honeft juror being confcious of the foibles attending human nature, and of the facredness of the obligations be stands under with refpect to his God and his country, never omits ta fcrutinize into his heart and difpel from it, all noxious paffions that may have crept in, and restore himself to that equanimity and evennefs of feeling, the true and only ftandard to try the fcales of justice by,

In vain the wife legiflators would exhauft the treasures of meditation and experience, in framing the moft wholefome laws, without the uprightness of the judiciary to carry a pure fubftance through their channel; they would not be more useful than lofty ftocks of wheat offering the appearance of long ears, but being actually blafted in their bloffoms and containing no grain. Thus all substantial liberty, and all the bleffings that flow from it; refting almoft entirely upon the purity of the judiciary. Every care ought to be taken, every endeavour ought to be exerted, to cultivate and improve the calmnefs, the liberality, the mutual confidence of judges and jurors.

God forbid that 1 fhould ever attempt to throw the alarm amongst you, or difturb your feelings in the leaft by ufelefs denunciations; should the illuminees of Germany and jacobins of France be as dangerous to the focieties they live in, or as wickedly bent upon deftroying or undermining every civil and religious inflitution, as they have been reprefented to be by Barruel the Jefuit, and others. What could I poffibly tell you on the subject, preferving my official capacity? What could a jury of Allegheny do about these things? Have not these countries their own laws, and magiftrates? Have we any jurifdiction over them? For my part, I cannot expofe myself so much as to forget that I ftand here as a judge, and not as a fpeculatift or hiftorian? that this present time is at the difpofal of the laws, and not at that of my fancy or imagination. God forbid, above all, that I fhould fingle out any fet of men among fellow-citizens, and infinuate that they are a ramification of fuch German and French illuminees and jacobins, and that the mean course of the laft general election throughout the United States, evinces that this ramification is growing powerful and influential.

As the barbarous and gothic fyftem of divifion of nations into cafts, is happily unknown to the conftitutions of our coun try; as we have no ambitious and privileged nobility, nor a proud and corrupt clergy, armed with an undue temporal authority, to encounter with, to refift, or to crush: fo we have no reason to form ourselves into affociations against each other: Our laws, our government, hold up all and every one of us into their bofoms, with an equal tendeinefs and care. In fuch fociety as ours is, every thing leads towards union and mutual friendship; here the philofopher, far from being at variance with the clergyman, fupports and refpects him; and both purfue ultimately the fame object, that is, the happiness of mankind. If we are divided in opinion upon any political

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