The Supreme Court of Georgia.

had been left off by the reporter or printer. If the case be one of unwarranted appropria tion, the sin (as Mr. William Allen Butler says of Bracton's plagiarism from the civil law) cannot be called original sin. Perhaps the grievance of the Georgia jurist is aggra vated by the fact, stated by Judge Seymour D. Thompson, that the New Hampshire case has become a leading one, and the principles there enunciated have become a part of American law, the source being recognized as the New Hampshire decision. The reader can form his own opinion from the following comparison : — From II Ga. R. From 41 N. H. R. " It is irregular and illegal "The rule is, that it is contrary to law for counsel for counsel to comment upon to comment upon facts not facts not proved before the proven. He represents his jury as true, and not legally client, — he is the substitute competent and admissible of his client j whatever the as evidence. The counsel client may do in the con represents and is a substi duct of his cause, therefore, tute for his client; whatever, his counsel may do. In rela therefore, the client may do tion to his liberty of speech, in the management of his the largest and most liberal cause, may be done by his freedom is allowed, and the counsel. The largest and law protects him in it. The most liberal freedom of right of discussing the merits speech is allowed, and the of his cause, both as to the law protects him in it. The law and the facts, is indis right of discussing the mer pensable to every party; the its of the cause, both as to same right appertains to his the law and facts, is un counsel. The range of dis abridged. The range of dis cussion is wide,— very wide. cussion is wide. He mav He is entitled to be heard in be heard in argument upon argument upon every ques every question of law. In tion of law that may arise in his addresses to the jury it the cause; in his addresses is his privilege to descant to the jury it is right to de upon the facts proved or ad scant the facts proven or ad mitted in the pleadings; to mitted in the pleadings; to arraign the conduct of par arraign the conduct of par ties; impugn, excuse, jus ties; impugn, excuse, justify, tify, or condemn motives, so or condemn motives, so far far as they are developed in as they are developed in evi evidence; assail the credi dence; assail the credibility bility of witnesses, when it of witnesses, when that is im is impeached by direct evi peached by direct evidence, dence, or by the inconsist or by the inconsistency or in ency or incoherence of their coherence of his testimony, testimony, their manner of his manner of testifying, his testifying, their appearance appearance, or by circum on the stand, or by circum stances. His illustrations stances. His illustrations may be as various as are the may be as various as the re resources of his genius; his sources of his genius; his argumentation as full and argumentation as full and

profound as his learning can make it; and he may, if he will, give play to his wit, or wing to his imagination. To his freedom of speech, how ever, there are some limita tions. His manner must be decorous. All courts have power to protect themselves from contempts, and inde cency in words or senti ments is a contempt. This is a matter of course in the courts of civilized commu nities. Nor is it matter of form merely; for no court can command from a civi lized public that respect which is necessary to an effi cient administration of the law, without maintaining in the business of the court that courtesy and dignity and purity which character ize the intercourse of gen tlemen in private life. "Kut farther; every per son accused is entitled to be tried by a jury, and accord ing to the laws of the land. This is the greatest of all the privileges conferred by Magna Charta, and it is guaranteed by our own fun damental law. Now I as sume that this privilege is violated, if counsel are per mitted to state facts and comment upon them in argu ment against the adverse partv, which are not before the jury by proof regularly submitted. -The accused is not only entitled to have a trial by a jury of twelve men, but is entitled to have his trial conducted accord ing to the cause and usage of the common law. ' By the law of the land,' as used in the great Charter, has been understood due pro cess of law, that is, indict ment or presentment; but that is not now the only meaning of these words. They mean that the party charged shall be indicted, arraigned, and tried accord ing to the rules of law and the established usages of the courts. Trial by jury, —

23 profound as his learning can make it; and he may, if he will, give play to his wit, or wings to his imagination. "To his freedom of speech, however, there are some lim itations. His manner must be decorous. All courts have power to protect themselves from contempt, and inde cency in words or sentiments is contempt. This is a mat ter of course in the courts of civilized communities, but not of form merely; for no court can command from an enlightened public that re spect necessary to an effi cient administration of the law, without maintaining in its business proceedings that courtesy, dignity, and purity which characterize the inter course of gentlemen in pri vate life. "But, farther, every person against whom an accusation is made, or a suit brought, is entitled to be tried by a jury, and according to the laws of the land. This was the greatest of all the priv ileges conferred by Magna Charta. and is guaranteed by our own fundamental law. This privilege is sub stantially violated, if coun sel are permitted to state facts and comment upon them in argument against the adverse party, which are not befcre the jury by proofs regularly submitted. The party accused or prosecuted is not only entitled to have a trial by a jury of twelve men, duly constituted, but to have his trial conducted according to the course and usage of the common law, and the established rules of judicial proceedings. An essential element in the trial by jury is that the verdict shall be rendered according to the facts of the case, legally produced before the jurors. They are sworn to give their verdicts according to evidence, and if they find without evidence, or against