"If Judge Fisher's instructions made you find it, bring Judge Fisher. Where is the Judge? Think you he will step forward and say, 'I will take the burden.' No, gentlemen. Let me say to you now, that by the laws of the land, and by the laws of God, the responsibility is on the judge to instruct you rightly, to guide you correctly, to give you wise and judicious counsel, not as mandatory and binding on your conscience, but as advisory to your judgment, to enlighten the pathway you are to tread in your investigations. We shall ask no instructions, and desire none. The law of murder is too plain to need any, and you, gentlemen, are too intelligent not to understand it. Indeed, if we desire some explanation, we would prefer to give it to you in the way of argument, rather than trust it to the distinguished judge who presides. We would trust it to argument, because, with regard to these plain questions, all men can comprehend what the law is. We would prefer trusting it to the weight of our own character with the jury as men and lawyers." After this ingenious appeal to the jury, the learned advocate then proceeded to recount and expound the propositions of law on which the District Attorney had invoked the instructions of the Court.
Judge Fisher in charging the jury made the following reference to this remarkable argument by Mr. Merrick: "You have been told, gentlemen, by the counsel for the defense, in a manner not very respectful, certainly by no means complimentary to the Court, that you are the judges of the law as well as the facts in criminal cases, and that you have the right to disregard the instructions of the Court in matters of law; and they tell you that their expositions of the law, and the weight of character they possess, may be more safely relied upon than the instructions which may be given you by the Court. The weight of character of a prisoner's counsel would be a variable, and not unfrequently a very unsafe criterion by which the jury should judge as to the law of his case. Perhaps they would have you regard the court as sitting on the bench merely to discharge the duty of preserving order and decorum in the court room, which probably the crier of the court or baliff might be disposed to regard as an usurpation of his prerogative. If the jury are entirely to disregard the judge's instructions as to the law of a case, I confess I can see but little left than that for him to perform.
"It is true, gentlemen, that you have the power, and in cases where your consciences are satisfied that the instructions of the Court are dictated, not by an honest desire to enlighten the jury as to the true state of the law, but by corrupt and wicked motives, you have the right to disregard the instructions purposely intended to mislead you. But to claim that the jury are better judges of what the law may be than the Court, is about as reasonable as to assert that a plain farmer or merchant may be taken fresh from his plough or his counter, and be more capable of navigating and manœuvering a steam frigate, or to lead your armies to certain victories, than your admiral or commander-in-chief. In my opinion, you have just the same right to disregard the evidence of the witnesses who stood before you unimpeached in any matter respecting the facts involved in the cause, as you have to disregard what the Court may say to you, under an official oath, as to the law that may apply to the facts. A jury have the power, if they choose to exercise it, after having assumed the obligations of an oath, to say that they will neither believe the judge nor the witnesses, but decide upon the law and facts according to their own caprice, or the confidence which they may repose in the character of counsel on either side, but such is not the purpose for which juries were instituted, and they have no right so to act. When the witnesses in the cause have testified before you as to the facts, it is then the office of the judge, under his official oath, to testify to you in the spirit of truth, according to the best of his knowledge and ability, as to what is the law which may be applicable to those facts; and an honest jury will disregard neither the testimony of the witnesses nor the instructions of the judge, unless they are satisfied that corrupt motives have actuated them. They will leave the party where the law leaves him, to his legitimate redress,—a writ of error to the appellate court."
Referring to the course of counsel in this illegitimate appeal to the jury in their argument on this point, and to their appeal, based on the number of their exceptions to the rulings of the Court, the judge made this further remark in vindicating the position and dignity of the Court: "In reference to these matters I may observe that, perhaps, I owed it to the dignity of the bench to have interrupted counsel in the conduct of the case in this particular, but in a cause involving the life of the prisoner upon the one hand and the vindication of the outraged justice of a nation in mourning upon the other, I deemed it my duty to cast not an atom in the one scale or in the other which might by any possibility tend to prejudice either side of the issue."
[CHAPTER III.]
TREATMENT OF WITNESSES AND EVIDENCE BY THE COUNSEL FOR THE DEFENSE AND THEIR ANIMUS TOWARD THE GOVERNMENT AND APPEALS TO THE POLITICAL PREJUDICES OF JURORS.
The conduct of this trial on the part of the defense toward the witnesses for the prosecution was most remarkable. The law prescribes the methods by which testimony is to be discredited, and the eminent lawyers who defended the prisoner were of course well acquainted with the legal methods of impeaching testimony. That they did not confine themselves to these was not only unprofessional, but was calculated to create a suspicion that they had an intuitive perception of the fact that the methods known to the law would not avail them in this case. Hence from the first they attempted to influence the jury by treating the government witnesses with supercillious contempt, and even scorn.
They did not, however, stop here, but whenever they could find or make an occasion they would throw out insinuations against the witnesses en masse by side remarks intended for the ears of the jury.
They spoke of the witnesses who were kept together in a room, to be called as they were needed, as being in the "penitentiary," and added to this that "they would soon be in another penitentiary."