THE LIBRARY OF THE 
 
 UNIVERSITY OF 
 
 NORTH CAROLINA 
 
 THE COLLECTION OF 
 NORTH CAROLINIANA 
 
 C378 
 
 UK3 
 189aF 
 
UNIVERSITY OF N C. AT CHAPEL HILL 
 
 00039136773 
 
 FOR USE ONLY IN 
 THE NORTH CAROLINA COLLECTION 
 
 Form No. A-266 
 
Digitized by the Internet Archive 
 
 in 2010 with funding from 
 
 University of North Carolina at Chapel Hi 
 
 http://www.archive.org/details/firstannualaddreOOfull 
 
FIRST ANNUAL ADDRESS 
 
 i!i:]'OUi-; I- 1 IK 
 
 LA W CLASS OF THE 
 
 UNiVEHSlTY OF NORTH CAROLINA 
 
 i>K.i.i\ Fni-;n Bv 
 
 HON. THOMAS G. TdLLER, 
 
 JUDGE OF THE UNITED STATES COURT OF PRIVATE LAND 
 CLAIMS. 
 
 T, n8q)8. 
 
 WII.SdN : 
 Ailvaiu-c Piiblisliinjf Company. 
 
 1.'<!)S. 
 
Liidlcs (111(1 Gi'iitliiHcn: 
 
 Gontldiicii nftlip Unincfsil (/ Lkii- ('lass nf I (S!)}^: 
 Not all ol you will become practiciiif^ lawyers- 
 some of )()u doubtless will pursue other avocations ; 
 it is to those of you who will take upon yourselves 
 the active, laborious and responsible duties of the 
 litigations, and the conduce and guidance of the im- 
 portant affairs, of others, that I shall chiefly address 
 myself. There is not among men a nobler intel- 
 lectual pursuit, nor is there a higher moral standard, 
 than inspires and pervades the ranks of the legal 
 profession ; you will look, in vain, elsewhere, for 
 more spotless honor, more absolute devotion, more 
 patient industry and more conscientious fidelity, than 
 is to be found there. I do not mean to say that 
 among the thousands of lawyers, among the seventy 
 millions of people in the United States, there are 
 not. some who are base and sordid and knavish, but 
 I maintain that, in proportion, there are to be found, 
 not a greater number of disreputable persons than 
 in the other avocations of life 
 
 The practice of law is a most honorable avoca- 
 tion, and worthily pursued, gives honor to the law- 
 yer, and by his conduct, it is magnified and made 
 more honorable. With, I hope, a properly becom- 
 ing professional pride, I wish to impress upon you, 
 who are to become men of mark in )'our respective 
 
4 
 
 coniniunities, leaders of public thought and senti- 
 ment, that you owe a very high duty to "the Law of 
 the Land" — that by your lives and conduct you 
 show forth that the Law is majestic, the Law is 
 benignant and the Law is terrible : majestic, be- 
 cause it is just ; benignant, becau>e it has regard to 
 the frailties and infirmities of human nature, pro- 
 tecting as a father, the weak, simple and defence- 
 less ; and terrible, in that it can, in its punitive 
 power, say to the highest as well as to the lowest of 
 humanity, cease to exist, and life ends at its ap- 
 pointed time. 
 
 Akin to this, you owe another very high duty to 
 the profession which you have chosen. Respect 
 your profession, and show that you do respect it. by 
 your conduct ; do not follow it as a buisness for the 
 mere making of money, demand for honest, faithful 
 services, fair compensation ; but never take advan- 
 tage of your opportunities to cheat, extort or 
 oppress ; the old Roman lawyers regarded the fee 
 paid by the client to the lawyer as a "quiddam 
 honorarium," and the lawyer of this day. who doe? 
 not, to a certain extent, so regard it fails to shov 
 that high resptct for the profession which is its du' 
 See to it, that you so discharge these duties as ■ 
 restore to the Law and its ministers, something ' f 
 the reverence of former days. 
 
 Before entering upon the practice of the La , 
 each one of you will be required to take three oat ■, 
 and, as you shall properly understand and faithfu y ' 
 
5 
 fvillill these ohliirations, so shall your mcinory live 
 anions^ your fellow-men, and \aur children's cliildren 
 shall call you blessed. 
 
 1st. Vou >hall swear to support and maintain the 
 Constitution ol' the United .States ; 
 
 2nd. 'To support and maintain the Constitution of 
 the State of North Carolina, not inconsistent with 
 the Constitution of the United States ; and 
 
 3rd. To honestly and faithfully demean yourself 
 as an attorney and counsellor at Law. 
 
 You will observe that paramount allegiance is 
 due to the United States, and that the man oi today, 
 without cherishincr bitter memories of the past — 
 regarding- the war between the States as a mere 
 episode in the nation's life — yielding full and active 
 assent to the logic of accomplished tacts — recogniz- 
 •ng the great American Union with every State and 
 Territory as uis Country, for which in his patriotic 
 ardor he feels that, if need be, it would be decorous 
 and sweet to die: this feeling entertained, and 
 illustrated by life and conduct, and nothing less 
 than this, is the proper keeping of the first oatH. 
 In brief, paramount allegiance to the Constitution of 
 the United States only finds expression in the sen- 
 timent, "Our Country, may she always be right; 
 but right or wrong, our Country." 
 
 To support and maintain the Constitution of 
 North Carolina, with all that due allegiance to the 
 State, implies, both in its letter and spirit, needs no 
 explanation to the sons of the sires who were "First 
 
at Bethel and last at Appomattox." 
 
 And the third and last, or the attorney's oath, as 
 it is called, requires the practice of good faith in all 
 of a lawyer's dealings, but particularly of the utmost 
 good faith, and of the highest honesty, in the rela- 
 tion of attorney and client; remember, that when 
 this relation is once established, the attorney may 
 not sever it without good cause ; and that while the 
 relation exists he is bound, by his oath and honor, 
 to serve the client as he would serve himself. He 
 must be sober, that he may always be ready for any 
 required service ; he must be diligent in the prepar- 
 ation and trial ot his case, m order that he may 
 serve him intelligently; he must be vigilant, lest by 
 his inattention the client's interests suffer, and 
 above all, he must be so true to the client that he 
 will do all in his power that the law permits, accord- 
 ing to the best of his skill and ability, and that an 
 honorable man can be required to do : and to do 
 less than this is not the honest and faith'"ul demean- 
 or of an attorney. 
 
 • Having been inducted into the high and honora- 
 ble office of Attorney and Counsellor, the question 
 which is the title of one of the most powerful works 
 of English fiction demands an answer, "What will 
 he do with it?" and I answer, he will do his duty, or 
 he will do less that his duty — he cannot do niore — 
 and that duty is to serve his client, and to devote 
 to that service all the powers of his mind and heart 
 — to serve him to the veree of the law, and till sue- 
 
/ 
 cc-^s crowns his clTorts or "Jeath's pale llaL,'^ lloats 
 o'er the ramparts." 
 
 The lawyer's duties to his cliiiu rano^e themselves 
 iimler two general heads — to counsed and advise, 
 and to try his cases in the Courts. 
 
 On tin; lirst, I shall not dilate, only remarkin^^ 
 that as the law arises from the facts, the la\v)er be- 
 fore giving advice should diligently seek to possess 
 himself of the facts, and after doing this, for the 
 law should go to the "books"; for I give unto you 
 a better commandment than "'Go West, young 
 man," which is "Stay in your office and go to the 
 books, young man." 
 
 In the trial of a case in the Courts of Nisi Prius. 
 before a judge and jury, if it be one of great 
 importance, especially if the supreme issue of life or 
 death is to be tried, it will tax all the powers of 
 mind and body to so conduct the trial, that at its 
 close the conscientious lawyer can say to himselt, 
 well done. As in such cases the verdict is accord- 
 ing to the evidence, the most important part in the 
 conduct of a trial is the exauMnation and cross- 
 examination of the witnesses. There is not an 
 experienced practitioner of the law whose observa- 
 tion does not confirm the statement of one of the 
 ablest criminal lawyers this country has produced, 
 "that there Is often more mind and more knowledge 
 of human nature displayed in the examination of 
 witnesses than in the discussion of the cause to 
 which their testimony relates. Evidence without 
 
argument is worth much more than argument with- 
 out evidence. In their union they are irresistible." 
 
 I therefore present to you twenty rules for the 
 examination and cross-examination of witnesses, 
 formulated and illustrated by the same able lawyer 
 to whom I have referred, which, tested by my 
 observation and experience, it is always safe to fol- 
 low, and from which it is always perilous to depart. 
 These rules, well called "Golden Rules," each 
 young lawyer should study and practice until they 
 become a part of his professional being. 
 
 First. As to your own witnesses : If they are 
 bold, and may injure your case by pertness or lor 
 wardness, observe a gravity and ceremony of 
 manner towards them, which may be calculated to 
 suppress their assurance. 
 
 Second. If they are alarmed or diffident, and their 
 thoughts are evidently scattered, commence your 
 examination with matters of a familiar character, 
 remotely connected with the subject of their alarm 
 or the matter in issue, as, for instance. Where do 
 you live ? Do you know the parties ? How long 
 have you known them? &c.; and when you have 
 restored them to composure, and the mind has 
 gained its equilibrium, proceed to the more essen- 
 tial features of the case, being careful to be mild 
 and distinct in your approaches, lest you may 
 trouble the fountain again from which you are to 
 drink. 
 
 Third. If the evidence of your own witness be 
 
9 
 
 unfavoral:>l(i to yoxi, (Which slioiild always be care- 
 fully j^uanleil at^ainst), cxhiljit no want of compo- 
 Murt-: f(ir ihin- arc iiian\ minds that form opinions 
 ■of the nature or ciiaraiter of testimony, chielly from 
 the t-ffect w hitJT it may appear to produce- ujjon die 
 <Humst-l. 
 
 I'ourtii. If \()u perci-ive that the mind of the wit- 
 ness is indjued with prejudice against your client, 
 liopc^ ijut little from such a quarter; unless there be 
 some facts which are essential to your client's pro- 
 tection, and which that witness a'one can prove : 
 tiither do not call him <5r get rid of him as soon as 
 soon as |)ossible. It tht; opposite coimsel perceive 
 the bias to which I have referred, he maj- employ it 
 to your own ruin. In jutlicial inquiries, of all possi- 
 ble evils, the worst, and the least to be resisted, is 
 an enemy in the disguise of a friend. You can not 
 impeach him, you can not disarm him, you can not, 
 indirectly even, assail him ; and if you exercise the 
 onlv privilege which is left to you, and call other 
 witnesses for the purpose of explanation, you must 
 bear in mir.d that instead ot carrying war into the 
 tinemv's country, the struggle is between sections 
 of your own forces, and in the very heart, perhaps, 
 of your own camp. Avoid this by all means. 
 
 Fifdi. Never call a witness whom )-our adversary 
 will b<- compelled to call. This will afford you the 
 1'rivilege of cross-examination, take from your op- 
 ponent the .same privilege it thus gives you, and, 
 in addition thereto, ' not onlv renders ever\thing 
 
to 
 
 unfavorable said by the witness doubly operative 
 against the party calling him, but also deprives that 
 party of the power of counteracting the effect of the 
 testimony. 
 
 Sixth. Never ask a question without an object, 
 nor without being able to connect that object with 
 the case, it objected to as irrelevant. 
 
 Seventh. Be careful not to put your question in 
 such a shape that, if opposed for informality, you 
 cannot sustain it, or, at all events, produce strong 
 reason in its support. Frequent failures in the dis- 
 cussion of points of evidence enfeeble your strength 
 in the estimation of the jury and impair your hopes 
 in the final result. 
 
 Eighth. Never object to a question from your 
 adversary without being able and deposed to en- 
 force the objection. Nothing is so monotonous as 
 to be constantly making and withdrawing objections 
 — it either indicates a want of correct perception in 
 making them, or a deficiency of reason or of moral 
 courage in not making them good. 
 
 Ninth. Speak to your witness clearly and dis- 
 tinctly, as if you were awake and engaged in a mat- 
 ter of interest; and make him. also speak distinctly 
 and to your question. How can it be supposed that 
 the court and jury will be inclined to listen, when 
 the only struggle seems to be whether the counsel 
 or the witness shall first go to sleep ? 
 
 Tenth. Modulate your voice as circumstances 
 m.iy direct. "Inspire the fearful and repress the 
 bold." 
 
1 1 
 
 Eleventh. Never bcj^nn liefore you are ready — 
 
 ;\nti always finish when you have clone. In other 
 
 words, do not question for question's sake, but for 
 
 an answer. 
 
 CROSS EXAMINATION. 
 
 I'irst. Except in indifferent matters, never take 
 Aour eye trom that of the witness. This is a chan- 
 nel ot commi.'nication from mind to mind, the loss of 
 which nothing can compensate. 
 
 "'i'nitli, falsehood, hatred, anger, scorn, despair. 
 And all the passions — ,dl the soul is there." 
 
 Second. Be not regardless, either, of the voice 
 o4 the witness ; next to tue eye, this is perhaps the 
 best interpreter of his mind. The very design to 
 screen conscience from crime, the mental reserva- 
 tion of the witness, is often manifested in the tone 
 or accent, or emphasis of the voice. For instance, 
 it beconiing important to know that the witness was 
 at the corner of Pirst and Second streets at a cer 
 tain time, the question is asked, "Were you at the 
 corner of First and Second streets at six o'clock ? A 
 frank witness would answer, perhaps, "I was near 
 there." But a witne^ who is desirous to conceal 
 the fact and defeat your object, (speaking to the let- 
 ter rather than to the spirit of the inquiry), answers 
 "No," although he may have been within a stone's 
 throw of the place, or at the very place within ten 
 minutes (»1 the time. The common answer of such 
 a witness would be, "I was not at the corner at six 
 o'clock -•*" Emphasis upon both words jjlainly im- 
 
12 
 
 plies a mental evasion or equivocation, and L,n've'!? 
 rise, with a skillful examiner, to the question, "Ar 
 what hour were you at the corner ?"or '"At what 
 place were you at six o'clock ?" And in nine in- 
 stances out of ten, it will appear that the witnes-s; 
 was at the place about the time or, at the tin>e about 
 the place. There is no scope for further illustration: 
 but be watchful, I say, of the voice and the princi- 
 ciple may be easily applied. 
 
 Third. Be mild with the mild, shrewd with the 
 crafty, confrdincr with the honest, merciful to the 
 young, the frail or the frarful, rough to the ruffian, 
 and a thunderbolt to the liar. But in all this, never 
 be unmindful of your own dignity. Bring to bear 
 all the powers of your mind, not that you may shine, 
 but that virtue may triumph and your own cause 
 prosper. 
 
 Fourth. In a criminal, especially in a capital case, 
 so long as ^our cause stands well, ask bnt few ques- 
 tions, and be certain never to ask any, the answer.'i 
 to which, (if against you) may destroy your client, 
 unless you know the witness perfectly well, and 
 know that his answer will be favorable, equally well; 
 or unless you be prepared with testimony to destro) 
 him, if he play traitor to the truth and your expect 
 ation. 
 
 Fifth. An equivocal question is almost as much 
 to be avoided and condemned as an equivocal an- 
 swer. Singleness of purpose, clearly expressed, is 
 the best trait in the examination of witnesses-wheth- 
 
er ihvy lie honest or the reverse, I'alseliooel is not 
 tletectcil by cunning, hut by the lic^ht of truth, or 
 if by cunning it is the cunning of ilie witness and not 
 of the counsel. 
 
 Sixth. If the witness is (letennined to be witty or 
 refractor\' with you, you hatl better settle that ac- 
 count with him at first, or its items will increase with 
 the examination. Let him have an opportunit) ot 
 satisfying himself, either that he has mistaken your 
 power or his own. But, in anv result, be caretul that 
 you do not lose your temper, .-\nger is always, 
 either the /precursor or evidence ot assured defeat 
 in any intellectual conllict. 
 
 Seventh, Like a skillful chess player, in every 
 move fix your mind upon the combinations and re- 
 lations of the game — partial and temporary success 
 may otherwise end in total and remediless defeat. 
 
 Eighth. Never undervalue your adversary ; but 
 stand steadily upon your guard. A random blow 
 may be just as effective as though it were directed 
 by the most consumate skill — the negligence ot one 
 often cures, and sometimes renders effective, the 
 blunders of another. 
 
 Ninth. Be respectful to the court and jury, kind 
 to your colleague, civil to your antagonist, but never 
 sacrifice the slightest principle of duty to an over- 
 weening deference toward either." 
 
 A judicious and clear developement of the tacts ot 
 the case is more important than the ablest and most 
 eloquent argument, indeed skillful examination otten 
 
14 
 
 secures a verdict without argument' 
 
 The charge given to the jury in empanelling 
 them, "> it together, hear your evid> nee and give 
 your verdict accordingly," is not mere formality; for 
 as no evidence can be considered by the jury except 
 that which the judge permits to go to them, so none 
 other is "their evidence," and as the jury judges of 
 the credibility of the witness by his manner and de- 
 meanor upon the stand, by his attitude towards the 
 parties and the cause, etc., it is the business ot the 
 examining lawyer to bring these matters to their at- 
 tention and thus make these things "their evidence" 
 as well as the matter to which the witness tesiific;. 
 And you will also remember that the jury and the 
 judge bemg mere men, with the same feelings, pas- 
 sions, frailties and infirmities that other men have, 
 are intluenced, (unavoidably often), by the manner 
 of his counsel, to take a favorable or unfavorable 
 view of the client's cause. 
 
 And just here, I will remark, that though trial by 
 jury, sometimes, falls short of the ascertainment of 
 truth, it is because it is of human origin, and, like all 
 of the other works ot man, is not perfect ; but this 
 much may and must be said for it— the ingenuit)' ot 
 man has never found a better method for the trial ot 
 disputed facts. 
 
 The next step in importance in the, trial of a case 
 is the> argument of counsel or the summing up of the 
 evidence. 
 
 The lawver has no more difficult task to oerform 
 
15 
 than tliat of (Icfctulino- a iicrson rhai\<,fc(l with a cap- 
 ital felony. 1 will therefore ofter you some sugges- 
 tions in that b(;half ; the result of reading the lives 
 ant! writings ot great masters ot the art of defend- 
 ing persons for their lives, tested and verified by 
 111)' own ('xperience and observation in the courts. 
 
 Before you undertake to defend in a case of this 
 kind, be well satisfied, in your own mind, that you 
 are competent to discharge, properly, the fearfully 
 responsible duty you are called upon to assume ; do 
 not let a desire for that notoriety, (which appear- 
 ance in a case of great interest in the community al- 
 ways gives), blind you to the difficulties and dangers 
 by which you will inevitably be surrounded; for re- 
 member, if your task be unskilHully and poorly per- 
 formed, the blood of the defendant, the maledictions 
 of his relatives and friends, the contempt of the 
 community, and condemnation of your own con- 
 science will deservedly be laid upon you, as the re- 
 sult of your presumptuous fo'ly. If not satisfied, 
 fully satisfied, of your ability, either decline the pro- 
 posed employment or insist that more experienced 
 and able counsel shall take the leading part while 
 you become the junior. 
 
 If you are satisfied that you are both intellectually 
 and physically competent to the task, you should 
 decline the employment unless you feel assured that 
 your feelings are deeply enlisted for the defendant, 
 and that your feelings, instead of impairing your ef- 
 forts will only incite you to redouble them. Vou 
 
i6 
 
 should feel that you will not make any cold-blooded 
 defence, but that with all of your powers, both of 
 mi"d and body, you will make the defence ; that you 
 will defend as you would defend ^our own wife or 
 son or daughter or yourself, and that you will not 
 abate one jot of heart or hope until the fatal trap 
 shall fall ; and then you will have the consolation 
 of teeling, "I knew my duty, and I did it." 
 
 Having undertaken the defense, you should then 
 see the defendant at the earliest moment possible, 
 and at once gain his confidence ; when this is done 
 let him make his statement of the matter fully and at 
 the greatest length he will, and to encourage him to 
 be frank give him the assurance that whatever he 
 shall say to you M-ill never be divulged nor can 
 you ever be made to divulge it ; do not be impatient, 
 do not hurry him but rather encourage him to tell 
 you all about himself, his mode and habits of lile 
 and thought, his family and connections, his likes 
 and dislikes, and especially everything relating to 
 the crime with which he is ch-irged, and his connec- 
 tion, if any, therewith I say you must be patient 
 with the defendant, especially in the first interview, 
 for if you will defend him as )Ou would defend your 
 self, you must seek to learn as much about his life 
 and character as you know about your own ; nor 
 need you fear that he will tell you such things about 
 himself as will cause your zeal in his behalf to sensi- 
 bly abate, for defendants always make to their law- 
 yer statements the most favorable to themselves 
 
»7 
 that can ho m;nlc. 
 
 VVlu-ii tlic (icrcnchint is l)r()u^ln u\) ]n:{nrc th(; ex- 
 aniiiiini^ inaj^isrratc lor preliminary Iicariny-, waive 
 <:xamination, unless you teel absolutely certain that 
 it can be shown either that no crime or at least no 
 capital crime has been committed, or that there is no 
 probable reason to bt-lieve that the defendant is guil- 
 ty; unless, I say, it is so ^r/Asv^Z/t^/'/// certain, waive ex- 
 amination and let the defendant go to jail. It you 
 deem it of gr at importance to learn what the wit- 
 nesess for the prosecution will testify to (iik/ can 
 not li-iirn it othmcist'. it is sometimes advisable 
 to decline to introduce t^he defendant's evidence 
 after the evidence for the prosecution is in; butgen- 
 erallv this course is not advisable — as upon a waiver 
 of examination there is no record ot the evidence, 
 suchof the witnesses for the prosecution as have died 
 or moved beyond the limits of the State can 
 not be used against you at the trial. 
 
 I have said let the defendant go to jail; there is 
 no better place for the defendant to spend the in 
 terval between his arrest and trial than the jail. 
 True there are discomforts attending imprisoment, 
 and confinement is irksoni; but in jail the defendant 
 is more nearly under the control of his counsel, the 
 jailor may be forbidden to allow any one to see his 
 prisonerexcept by his counsel's conaent.and even the 
 keepers may be forbidden to talk to the prisoner or 
 allow him to talk to them about his case. Vou will 
 find that nearl)- the only surprises that well pre- 
 
i3 
 
 pared counsel encounters are I'ncrimmating' sfafe- 
 ments made or^inanufacCured to thej>risoner's hurt — - 
 indeed it is a conimon saying that nien chargetl with 
 Iiigh crimes are more hurt by what they say, or what 
 it is alleged they say, tharr what they do. 
 
 Again, the sympathy of the comrrtunity generally 
 turns to the defendant in jail, especially if his im- 
 prisoment has been long continued. 
 
 Another safe rule to follow ts never to try a, 
 doubtful case at the tirst term of court, if it can pos- 
 sibly be avoided; and not to try it as long as you 
 can continue it, unless at a given term you can 
 gain an important advantage that would not be /jo.s- 
 slhl,i> to you at a subsequent term. Time is a great 
 healer. Witnesses may die, or remove and not be 
 tound, the ardor of the prosecution may cool, the 
 temper of the witnesses for the prosecution may 
 modify, and the violence of the public sentiment 
 against the prisoner will surely abate as the time 
 the prisoner remains in jail is extended. 
 
 You will understand that it is not easy in all cases 
 to follow these directions, for the friends and rela- 
 tiver ot the defendant, in their anxiety to save him 
 will generally complain that the defendant's case 
 was not gone into fully before the examining mag- 
 istrate, or that an effort has not been made to baiJ 
 him, or that his imprisoment has been so long con- 
 tinued, and frequently the defendant is of the same 
 opinion. But firmly and decidedly you should dis- 
 regard their clamor, and make them understand and 
 
19 
 Te-jl tliat wliat yon do "is for tlie best atnl is l)fst cal- 
 culated to produce a favoral)le result. 
 
 Of course you must continually and urgently ad- 
 vis",and roiniinimi the defendant that he shall talk 
 to no-one, 'either friend or relative, priest or lay- 
 3nan, "about his case- 
 In the preparation of the case and esj^ecially in 
 its trial )'Ou niust know no fear, hut that of failure, 
 .;tnd even that you must permit nobody to discover 
 through you Waive no right that you may pos- 
 sess, that may affect the defendant, and permit no 
 advantage to be taken of him — Remember, you 
 ^^uard the citadel of human life — be wary and be 
 rtrm. The judge and the jury, it is true, take the 
 life of the defendant, but you are not, by ^'our fail- 
 ure, in ar.y respect, to give it away. You like the 
 ■gladiator are to train carefully and laboriously for 
 the conflict, and like him to strive mightly for the 
 imstery, and win the splendid prize of victory — the 
 life of man. And after all of your efforts you may 
 not acquit an innocent man, but you will, by a firm, 
 faithful and fearless dischiirge of your duty, acquit 
 yourself. 
 
 You must enter on the trial of a capital case as a 
 physician should enter the death chamber; calmly, 
 gravely, solemnly — all eyes are upon yx)u, all hopes 
 are upon you, all fears are upon you. That is no 
 time for flippancy, or agitation, much less for smil- 
 ing or merriment; sport would be as well timed at a 
 funeral. 
 
20 
 
 Sit by the prisoner while you make, for hun, hK 
 challenges to jurors; do it in a mild, courteous way. 
 lest you make enemies, while your chief object 
 should be to make friends. If you ever challenge 
 for cause and the challenge fails, be certain you 
 have not exhausted your right to a peremptory 
 challenge, a"d iiiniicdidifl'i ixa-ciar it, and. 
 never challenge the last juror to be presented to 
 you unless you have a peremptory challenge. 
 
 The jury being completed, deliberately proceed 
 with the trial of your case — no hurry, no confer- 
 ences, no gossip, no levity, no divided attention — 
 note all that transpires closely, and look as you 
 should feel, calm and composed; lor the defendant, 
 and all connected with him look at, and to you 
 
 If the witnesses for the prosecution do not affect 
 j'our defense, seriously do not cross-examine them 
 at all, unless you are certain they can and will prove 
 something, affirmatively, for the defence. 
 
 In trying your case, if the character ot the defen- 
 dant be strong, and his facts weak, introduce your 
 character witnesses first; if his facts be strong and 
 his character weak, introduce his character witnesses 
 last, or not at all, which last is generally the better 
 course to pursue. 
 
 It is permitted to examine the defendant as a 
 witness in his own behalf, and though the law por- 
 vides that if he does not avail himself of the privi- 
 lege he shall not be prejudiced thereby, and though 
 the judge will charge the jury, as the law makes it 
 
31 
 
 his tluty to do, that no inference, unfavorable to the 
 defendant, it is to be drawn by them l)y a reason ol 
 such failure: yet they will, (naturally perhaps) con- 
 clude that the defendant does not 140 on the stand 
 because, and onI\- because, he; knows himselt to be 
 j^uilty and is afraid oi the cross-examination; there- 
 fore; if the prisoner be an intelliafent man, and be- 
 ing made to understand the risk, insists upon tes- 
 tifying, it is safer to let him do so, unless you are 
 absolutely sure it would be too hazardous — if you 
 are so sure, it is your duty to decline to put 
 him on the witness sta.nd, inid f^ik ' ff/f '-I's/jou- 
 .sihilih/ tijtonijoiu-slf- The determination of this 
 matter is extremely difficult, 'frequently, and re- 
 quires the deliberate exercise of your best judg- 
 mef.t, iminduenced by any other consideration than 
 the promotion of the best interest of the defendant, 
 He may desire to go on the witness stand, may in- 
 sist upon it, may demand it as his right — his friends 
 may jiin him, the greatest pressure maybe brought 
 to bear upon you to yield, and you will doubtless 
 earnestly wish to yield to their pleadings. But if 
 jjnLU-jiC(lgt)iri}fs'i//s nci. you must firmly refuse. 
 
 Throughout the trial, you must never despair. 1 
 have often known the worst case in the beginning, 
 proveto be the best case in the end. If the defendant 
 have a family, much as it may cost, the family should 
 be present with him in the hour of his extremist 
 need: he will suffer more by their absence. Their 
 presence will give a proper tone and complexion to 
 
the scene — it is worth a thousand fancy sketches of 
 conjugal offiHal agony. The sight of the agonized 
 condition of the wife and children and the conteni- 
 plation of their wretchedness in case of an adverse- 
 verdict, and their joy and gratitude if the verdict 
 shall be favorable to the defendant, will bnng to 
 the jury's mind more forcibly than everything else 
 can, a sense of their own responsibility, and fortify 
 them for the proper discharge of their duty, to give 
 to the defendant the full "benefit of any reasonable 
 doubt" and to act upon that humane maxim of the 
 law, that it is better "that ninety and nine guilty 
 men should escape than that one innocent man 
 should suffer." 
 
 If your efforts shall be crowned with success, be 
 thankful to God and the jury, but exhibit no vain 
 spirit of boasting; enjoy your triumph with becom- 
 ing modesty and moderation. 
 
 If the defendant is convicted, do not despair — as 
 an old lawyer friend of mine used to say "a gix.d 
 lawyer only begins to fight when a verdict is re- 
 turned against his client." Certain it is that much 
 is to be hoped from a motion for -i new trial, or a 
 motion in arrest of judgment, or failing these, from 
 an appeal to the Court of last resort, It is only af- 
 ter the judgment of the trial court is affirmed, and a 
 pardon has been refused, and the executioner has 
 carried into effect the sentence and judgment of the 
 law — then, and not till then, are your duties done. 
 
 But to return from this disofression to the areu- 
 
23 
 
 nrnt, or siininilnnr \i|i of the tvidcncc. If lhcr<i is 
 moi-L- thati oiH- attorney for the defence, tlie one 
 who is to make tlie main argument, should, (except 
 (or good cause) conduct the examination of the wit- 
 nesses. Which one shall make the main argument 
 and which orre conduct the examination, should as 
 far as possible be settled before the trial begins. 
 
 It tile defendant introduce no evidence his side is 
 entided to open and conclude; in that event, a 
 junior should open and the leader conclude; but the 
 junior's opening should not be merely iormal — he 
 should be instructed to do his best. If the prosecu- 
 tion has the opening and conclusion, it is a much 
 mooted point as to whether the leader for the de- 
 fence should make the opening or closing speech on 
 his side. I have observed the best results gen- 
 erally follow the leader's making the opening, es- 
 pecially if he be a practiced and able advocate — in 
 this opening he should disclose the tuli defence, 
 clearly and candidly and cover the whole ground, as 
 'f nobody on his side, were to speak after him. This 
 -course is commended by at least two good reasons: 
 first it presents to the jury, at the earliest pos- 
 sible moment, the prisoners defence under the most 
 favorable light, and second if the opening be 
 thorough and exhaustive (as it should be) it is very 
 apt to give tone and dirction to the whole subse- 
 quent discussion. 
 
 The counsel should come to the argument of the 
 case in the best possible physical condition; keeping 
 
H 
 
 up as far as he can his regular habits, he should q;e^ 
 if possible eight hours of sound, healthy sleep the 
 night before he is to speak; for, 1 assure you, it is 
 much more conductive to the successful termination 
 of the defendant's case, that his counsel should 
 sleep well the night before, than that he shall spend 
 the night in preparation,, which he should have com- 
 pleted before — for it is better that the case should 
 be fully prepared tor argument than that the coun- 
 sel should be physically unprepared to argue it. 
 Lord Coke's rule is a good one for a lawyer to fol- 
 low at all times: "Eight hours to sleep' to law's 
 grave study seven, eight to the world, and all to 
 heaven." 
 
 Lawyers should not take notes — especialh' should 
 those who make the defence of persons charged 
 with high criminal offences somewhat of a speciality; 
 rely on memory, so far at least as the testimony of 
 the witnesses is concerned; cultivate the memory, 
 and it will be so strengthened thereby that it will 
 serve you bettt r than any notes, other than the 
 verbatim notes of a stenographer, as to accuracy; 
 while memorized testimony is infinitely the best for 
 use in other respects. I have known lawyers to try, 
 and try well, long and complicated cases without 
 taking asingle note from the beginning to the end 
 of the trial. 
 
 When you come to address the jury, ' be calm and 
 deliberate and do not begin until you are ready, 
 don't look up at the jury as if you feared them, don't 
 
1nt)k down ii|jon them as il yiui dcspisccl ihcin, hut 
 look each one dead in the eyes, and speak to ynur 
 client's cause." Such was the advice I heartl an 
 old lawyer i^ive to a youiiL^ one, nian\' )ears a^j^o; bet- 
 ter could not \)i.\ i^iven, as my e\[jerience and obser- 
 vation have proven. 
 
 The jury, the twelve plain men selected as the 
 law directs, are not the jurors of the State or of the 
 lief-Mulant; they are the jurors of the law, upon 
 whom has been imposed the solemn and res[jonsi- 
 hle duty ol ijassing- between the State and the priso- 
 ner at the bar upon his life and death — and they 
 are generall)' competent to tlie task — such is the 
 experience of the ages — for there is no right 
 so precious to people of English lineage as the 
 right of trial by jury. Such a body is not to be 
 lookeil up to with fear; for the happiest day in the 
 life ol a man, falsely accused of crime, is the day 
 when he faces an honest jury and demands that they 
 shall "harken to his cause." Nor are they to be 
 despised — they alone are clothed with the tremen- 
 dous power of taking away the life which God alone 
 can give and none can take away without His con- 
 sent — under Deity, they are the absolute arbiters of 
 the prisoner's fate, with none to question their 
 verdi.jt, and from which there is no appeal. And as 
 vou fear them not, neither can you despise them; 
 vou are to address them boldly, and with the most 
 profound respect. Vou want their verdict, you hun- 
 o-er and thirst for it, and you must ha\'e it, if by the 
 
26 
 
 best exercises of your best powers of heart and 
 mind it may be had. As you look each juror 
 steadily in the eyes, let your looks jjive assurance, 
 that they have no reason to fear that you will at- 
 tempt to hector or brow- beat, nor to trick or deceive 
 them, into a verdict — neither to despise you be- 
 cause of the truculency, sycophancy or subserviency 
 of your manner; or for your artfulness and disin- 
 j^enuousntss in presenting to them your client's- 
 cause. 
 
 Speak to your client's cause. It is generally best 
 to commence in an ordinary conversational tone and 
 with as much of clearness as you can, make a fair 
 summary of the evidence. I say a fair summary — ■ 
 it must be absolutely so, and it must be full; no im- 
 portant portion of the evidence rnust be omitted, 
 and not one jot or tittle must be perverted — this 
 must be done, not coldly, for there must be no 
 coldness about your whole speech; your manner 
 should be calm and dignified, and your self posses- 
 sessions perfect but not conspicuous. If you per- 
 form this part of your task well, you will perceive 
 that you have secured the attention of the jury and 
 to that they are preparing to give you their con- 
 fidence. To fi.\ and keep their attention, without 
 wh'ch your speech will be in vain, your manner 
 must be natural and not theatrical, and by voice, 
 jesture, attitude and countenance you must show 
 that you are speaking from the heart to the heart; 
 for it is true that with most plain, honest, men, it is 
 
27 
 lartjely throuijli their (niiotional natures you inust 
 seek and receive their intellectual assent. Be can- 
 ilid, be honest, be earnest, be eloquent, forensic 
 eloquence of today, which is "lo^nc red hot." 
 
 There is one further and very important sug^sres- 
 tion I will make to you. When you have done, 
 stop- For when your speech has reached its natur- 
 al and e.xpected close, you go on with needless re- 
 petitions or unmanly appeals for mercy, with which 
 ihe jury has nothinjr to do, you run the almost cer- 
 tain risk oi obliterating many of the impressions you 
 may have made on their minds favorable to the 
 prisoner, and inclined them stroncrely to find for the 
 v'-tate. 
 
 Alter obtaining license to practice law, you will be 
 told, have doubtful been many times told all ready, 
 there is no room in North Carolina for any more 
 lawyers than we now have, the legal profession in 
 the State is crowded, with the Supreme Court li- 
 censing thirty or forty or fifty new lawyers every 
 year, and with the number of cases on the docket 
 growing smaller in every county in the State, and 
 their importance growing less, the harvest for you 
 (it there is any harvest) is very unpromising — and 
 you will be advised to go into some other business. 
 I say to you. be not discouraged by such sugges- 
 tions, and heed not such advice; if you love the law, 
 and feel that you have an aptitude for its practice, 
 stick to it. Taking into consideration the facts that 
 many licensed attorney move from the State, and 
 
28 
 
 many turn their attention to other business, the; 
 number o^ lawyers in the State, today, is not greater 
 in proportion to population than it was prior to i860; 
 the decrease of litigation, is an incident of the "hard 
 times" which have been upon the country for sever 
 al years past, and may be expected to pass awa)- 
 when prosperity returns; prosperous times for the 
 people generally are prosperous times for the law- 
 yers, and the reverse. Even as it is now I do not 
 know, nor by inquiry I have not been able to dis- 
 cover, a lawyer in North Carolina, who is sober, 
 honest and diligent in business, who is not meeting 
 with reasonable success — certainly with as much 
 success as are those engaged in other persuits of 
 life — there is no rcnsoii. why you should despair, 
 and but little more why you should despond. 
 
 Where shall you locate, is a question which each 
 one of you will naturall)' ask himself. You will look 
 at the States to the North and to the South, but 
 most hopefully to the vast empire beyond the Miss- 
 issippi, called "The West," and you will assume that 
 any place is a more promising field of labor, and 
 more inviting to nmbitious youths than is the State 
 of your birth — you are mistaken. I have traveled 
 over a large portion of this great country, and am 
 tolerably familiar with the conditions of life in the 
 West and South-west, and know that to you they 
 would be as new, strange and hard as if you were 
 on another continent; and you would soon learn that 
 the same energy and effort you would have to put 
 
29 
 
 forth there would s^ive better and happier, if not 
 greater, results, if imployed at home among kindred 
 and friends, and those who wish you well. Each 
 country has it advantages and its drawbacks, but 
 averaging all, I declare to you I would rather take 
 my chances for life, liberty and happiness in North 
 Carolina than in any portion of the earth I have 
 seen. 
 
 "Tho' the scorner may sneer at 
 
 And the witling defame her. 
 My heart swells with gladness 
 
 Whenever I name her."