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=_Edward Livingston,[22] 1764-1836._=

From the “Report on the Penal Code for Louisiana.”

=_77._= THE PROPER OFFICE OF THE JUDGE.

Judges are generally men who have grown old in the practice at the bar.  With the knowledge which this experience gives, they acquire a habit, very difficult to be shaken off, of taking a side in every question that they hear debated, and when the mind is once enlisted, their passions, prejudices, and professional ingenuity are always arrayed on the same side, and furnish arms for the contest.  Neutrality cannot, under these circumstances, be expected; but the law should limit as much as possible, the evil that this almost inevitable state of things must produce.  In the theory of our law, judges are the counsel for the accused, in practice they are, with a few honorable exceptions, his most virulent prosecutors.  The true principles of criminal jurisprudence require that they should be neither.  Perfect impartiality is incompatible with these duties.  A good judge should have no wish that the guilty should escape, or that the innocent should suffer; no false pity, no undue severity, should bias the unshaken rectitude of his judgment; calm in deliberation, firm in resolve, patient in investigating the truth, tenacious of it when discovered, he should join urbanity of manners, to dignity of demeanor, and an integrity above suspicion, to learning and talent; such a judge is what, according to the true structure of our courts, he ought to be,—­the protector, not the advocate of the accused; his judge, not his accuser; and while executing these functions, he is the organ by which the sacred will of the law is pronounced.  Uttered by such a voice, it will be heard, respected, felt, obeyed; but impose on him the task of argument, of debate; degrade him from the bench to the bar; suffer him to overpower the accused with his influence, or to enter the lists with his advocate, to carry on the contest of sophisms, of angry arguments, of tart replies, and all the wordy war of forensic debate; suffer him to do this, and his dignity is lost; his decrees are no longer considered as the oracles of the law; they are submitted to, but not respected; and even the triumph of his eloquence or ingenuity, in the conviction of the accused, must be lessened by the suspicion that it has owed its success to official influence, and the privilege of arguing without reply.  For these reasons, the judge is forbidden to express any opinion on the facts which are alleged in evidence, much less to address any argument to the jury; but his functions are confined to expounding the law, and stating the points of evidence on which the recollection of the jury may differ.

[Footnote 22:  Was born in New York; eminent as a statesman, and as the author of a code of laws for Louisiana, his adopted state.]

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=_John Quincy Adams, 1767-1848._= (Manual, pp. 487, 504.)