Part 96

If, then, Judge Chase had wished that Callender should have been, at all events, prevented from a continuance of his cause, he would have suffered them to file their general affidavit.

Why should capital cases, rather than inferior crimes, be tried at the first court? The honorable Managers admit that it is the general rule not to continue, but to try at the first term, capital cases. Surely if indulgence, if delay is necessary in any case, it is in a capital case, where life is at risk; where an injury, if done, is irretrievable!

There are many reasons which show the propriety that prosecutions of every kind should be decided with as little delay as possible. One of the principles as to criminal jurisprudence, as Governor Claiborne has justly observed, is, that though punishments should be mild, yet they ought to be speedy; by having an immediate decision there is a great certainty that the criminal shall not elude justice by flight.

The next specification, in this article, of improper conduct in the judge, is, that he “used unusual, rude, and contemptuous expressions towards the prisoner’s counsel; and insinuated that they wished to excite the public fears and indignation, and to produce that insubordination to the law, to which the conduct of the judge did at the same time manifestly tend.” As to this part of the charge, there is but little of a legal nature contained in it, I shall, therefore, hastily pass over it. If true, it seems to be rather a violation of the principles of politeness, than of the principles of law; rather the want of decorum, than the commission of a high crime and misdemeanor. I will readily agree that my honorable client has more of the “fortiter in re,” than the “suaviter in modo,” and that his character may in some respects be considered to bear a stronger resemblance to that of Lord Thurlow than to that of Lord Chesterfield; yet Lord Thurlow has ever been esteemed a great legal character, and an enlightened judge.

But let me ask this honorable Court whether there is not great reason to believe that the sentiments my honorable client expressed with respect to the conduct of the counsel, and their object, was just and correct? What was the conduct of Callender’s counsel? Was it not such as immediately tended to inflame the minds of the bystanders, and to excite their indignation against the Court, and highly insulting to the judges? In the first place, they endeavored to obtain a continuance of the cause to the next court, merely with an intention to procure delay, and to prevent the cause being tried before Judge Chase, acknowledging that they had no hopes or expectation from any testimony to save their client if the law was determined to be constitutional; and yet they brought forward their client to swear just what they pleased, in order to procure this delay, with respect to the necessity of witnesses, whose testimony they acknowledged they were conscious could be of no service to them, and yet they wished the bystanders to consider the Court acting highly improper for not granting that continuance? Was this even to serve Callender? No, they avow they did not appear to serve him, but to serve the cause. Sir, it appears from their own evidence that Callender would have submitted to the Court, but for their interference; that they volunteered on the occasion not for him, but for their cause; and yet the volunteers wanted the Court to give them to another term to prepare themselves, and made Callender swear what they pleased to effect their purpose. They said they were not well acquainted with the law upon libels, and therefore wanted time to examine the subject; but surely when persons undertake to volunteer their services on any subject, they ought to be masters of it, and are entitled to no indulgence of delay. And as they declare they had formed the determination, on the first instance of an indictment under the sedition law, to come forward and volunteer their services for the sake not of the man, but of their cause, common decency to the Court, and a proper respect for themselves, ought to have dictated to them in the interim to have made themselves fully acquainted with all the law relative to that subject in which they had thus determined officiously to interpose.

When my honorable client went from Baltimore to Richmond, to hold the circuit court, he knew how violently that State was opposed to the enforcement of this law; but he equally knew that it was his duty to carry it into execution, without regard to the sentiments of any portion of the community, or however disagreeable it might be to them. Under these circumstances he went to Richmond, and found the counsel, from the first step in this cause, attempting, as he could not but consider it, to inflame the audience and excite their indignation against him. My honorable client, who well knows mankind, and has been accustomed to popular assemblies, appears to have been anxious, as his best security, to keep the bystanders in good humor, and to amuse them at the expense of the very persons who were endeavoring to excite the irascibility of the audience against him. Hence the mirth, the humor, the facetiousness, by which his conduct was marked during the trial; and which, most fortunately, was attended with the happy consequence he hoped from it, for it is admitted that he kept the bystanders in great good humor, and excited peals of laughter at the expense of the counsel, as the witness very justly concludes, for he says, “the counsel did not appear to join in the laugh.” And this, sir, most satisfactorily accounts for the more than usual exertion of his facetious talents on the trial of Callender; and I doubt not was the real cause of that exertion.

But the judge is also charged with great rudeness in the manner in which he replied in one part of the argument to Mr. Wirt, just at a time when that gentleman had finished a syllogism, by replying that it was a non sequitur. I will state the transaction: Mr. Wirt having, as he supposed, established the position, that the jury had a right to decide the law as well as the fact, he proceeded to state that the constitution was the supreme law of the land, and, therefore, that since the jury had a right to decide the law, and the constitution was also the law, the jury must certainly have a right to decide the constitutionality of a law made under it; and this conclusion was, as he declared, perfectly syllogistic. As Mr. Wirt had assumed the character of a logician in his argument, nothing could be more natural than for the judge, in his answer, to assume the same character; he therefore replied, like a logician, “A non sequitur, sir”--the correct answer to a syllogism which is rather lame in its conclusion. But it seems this answer was accompanied by a certain bow. As bows, sir, according to the manner they are made, may, like words, according to the manner they are uttered, convey very different meanings; and as it is as difficult to determine the merit or demerit of a bow without having seen it, as it is the expression of words without having heard them; to discover, therefore, whether there was any thing rude or improper in this bow, I could have wished that the witness, who complained so much of its effect, had given us a fac simile of it. Had we been favored not only with the answer, but also with a complete fac simile of the bow, we might have been enabled to have judged of the propriety of my honorable client’s conduct in this instance. But it seems this bow, together with the “non sequitur,” entirely discomfited poor Mr. Wirt, and down he sat “and never word spake more!” If so, it was a saving of time. But we have no proof that Mr. Wirt meant to have proceeded any further in the argument, even had he not been encountered with this formidable bow and non sequitur. And the presumption is, that having condensed the whole force of his argument into a syllogistic form, and, finding his syllogism did not produce the conviction intended, he took his seat without wishing to spend more of his breath in what, after the failure of his logical talents, he no doubt considered a fruitless attempt. Mr. Nicholas followed Mr. Wirt. He is a gentleman mild and polite in his manners; he was treated by the Court with politeness. He did not persist in addressing the jury contrary to the decisions of the Court; he, therefore, met with no interruptions.

But, sir, there is another charge which has been made against my honorable client, to justify that part of the article which accuses him of rudeness. It is said that speaking of Callender’s counsel, or addressing himself to them, he called them “young gentlemen.” To me it appears astonishing that these expressions, if used by the judge, should be thought reproachful to the counsel, or a proper subject of a criminal charge; and it gave me real pleasure to find that Mr. Nicholas, whose whole conduct marks him as a gentleman, did not consider them as offensive. He has observed that he was young at the time, and whoever has seen him as a witness, must be convinced of the truth of his assertion. But we are told that Mr. Wirt was at that time about thirty years of age, had been a married man, and was then a widower. It doth not appear that Judge Chase knew of these circumstances; but if he had, considering that Mr. Wirt was a widower, he certainly erred on the right side, if it was an error, in calling him a young gentleman. But, sir, let it be considered that my honorable client has been stated by the honorable Managers, to be nearly threescore and ten, let also his great legal attainments be considered, and let me ask, if any person can think his addressing gentlemen, so much inferior to himself in age and knowledge, by the epithet of “young gentlemen,” offensive to them, much less criminal as to the public? But as another instance of his rudeness we are told, that, addressing himself to Mr. Wirt, who observed that “he was going on,” the judge replied, “No, sir, I am going on, therefore sit down, sir.” This address was made by the judge to Mr. Wirt, when he (the judge) was about to give a long opinion to him and the counsel employed with him, which opinion, upon Mr. Wirt’s sitting down, the Court did give; and pray, sir, was there the least impropriety in a situation of that nature, that the Court should desire the counsel to be silent and to take their seats?

Before Judge Chase went from Baltimore to hold the circuit court at Richmond, he knew that the sedition law had been violated in Virginia. I had myself put into his hands “The Prospect before Us.” He felt it his duty to enforce the laws of his country. What, sir, is a judge in one part of the United States to permit the breach of our laws to go unpunished because they are there unpopular, and in another part to carry them into execution, because there they may be thought wise and salutary? And would you really wish your judges, instead of acting from principle, to court only the applause of their auditors? Would you wish them to be what Sir Michael Foster has so correctly stated, the most contemptible of all characters, popular judges; judges who look forward, in all their decisions, not for the applause of the wise and good, of their own consciences, of their God, but of the rabble, or any prevailing party? I flatter myself that this honorable Senate will never, by their decision, sanction such principles! Our Government is not, as we say, tyrannical, nor acting on whim or caprice. We boast of it as being a Government of laws. But how can it be such, unless the laws, while they exist, are sacredly and impartially, without regard to popularity, carried into execution? What, sir, shall judges discriminate? Shall they be permitted to say, “This law I will execute, and that I will not; because in the one case I may be benefited, in the other I might make myself enemies?” And would you really wish to live under a Government where your laws were thus administered? Would you really wish for such unprincipled, such time-serving judges? No, sir, you would not. You will with me say, “Give me the judge who will firmly, boldly, nay, even sternly, perform his duty, equally uninfluenced, equally unintimidated by the “Instantis vultus tyranni,” or the “ardor civium prava jubentium!” Such are the judges we ought to have; such I hope we have, and shall have. Our property, our liberty, our lives, can only be protected and secured by such judges. With this honorable Court it remains, whether we shall have such judges!”

MONDAY, February 25.

Mr. HARPER.--It was greatly to be desired, Mr. President, and might have been confidently expected, that in a case every way so important, where it so greatly concerns the public happiness that the decision should command the public confidence, nothing would be presented to the view of this honorable Court in aid of the prosecution, except the law which ought to govern the decision, and the proofs relied on for supporting the allegations.

But it has not so seemed good to the honorable Managers. They have thought proper to introduce into the discussion, the political opinions and party connections of the respondent, for the purpose of throwing a shade of doubt over his motives and of establishing inferences unfavorable to his character. How far this conduct ought to be commended, it is not for me to decide. My confidence in the justice and discernment of this honorable Court forbids me to apprehend that it can be successful.

But since these opinions and connections have been introduced, permit me to use them for a different purpose.

The duty imposed on judges is at all times delicate, and in criminal cases, where life or liberty may be affected, where reputation, dearer than both, depends on the issue, this duty becomes peculiarly arduous and painful to an honorable and generous mind. But if there be a situation more delicate, more embarrassing than every other to such a mind, it is that of a judge sitting on the trial of a person who, from political opposition, or any other cause, may have excited hostile or angry feelings in his mind. It is then that he most fears to trust himself. It is then that he most dreads the influence of his passions in misleading his judgment. It is then that he feels the strongest alarm for his reputation, lest he should possibly afford ground for the suspicion that he had gratified his resentments under the semblance of executing the law. Hence he constantly leans towards the side of the accused, and requires the clearest conviction before he condemns. Hence he rejects all doubtful or contradictory testimony, lays out of the case all little indiscretions and slight shades of suspicion; and is rigid in requiring from the prosecutors the unequivocal proof of unequivocal offences. That his enemy is in his power, is always a reason for the utmost forbearance. The fear that he may possibly be misled by his passions, is always a reason for acquittal, where doubt can exist.

Need I invoke these noble and generous sentiments in the breasts of this honorable Court? No! my heart tells me I need not. I see on those benches distinguished soldiers and eminent statesmen, who have triumphed alike in the fields of politics and war, and who always disdained to tarnish their laurels by the blood or humiliation of a vanquished foe.

If, then, the person now arraigned at your bar be connected with a political party in opposition to any of those who sit as his judges; if it were possible that, in promoting the views of that party, he may have excited feelings of anger or resentment in the mind of any member of this honorable tribunal; if it were possible that any portion of the angry passions engendered by the conflicts of party could find a place within these hallowed walls, and could attach itself to him who stands upon his trial at this bar, the existence of such a possibility would furnish every member of this honorable Court with the strongest motives that can operate on a generous and noble mind, for leaning constantly to the side of the accused, and for pronouncing in favor of an acquittal, wherever there remains a doubt of guilt.

Attempts have also been made to enlist the sympathy of this honorable Court on the side of the prosecution, and for this purpose, a criminal twice convicted, who did not hesitate to risk civil bloodshed in support of political theories, and is now indebted for his life to the clemency of that Government against whose laws he armed his ignorant and misguided neighbors, is presented to view, decked out in all the ornaments which rhetoric can bestow. We, Mr. President, disclaim the aids, and protest against the interference of rhetoric and sympathy. However proper in other situations, they ought to be excluded from courts of justice, whose decisions should be governed by truth and not by feeling.

But if sympathy could find a place in this tribunal, what object more fit to awake it than that now presented at your bar? An aged patriot and statesman, bearing on his head the frost of seventy winters, and broken by the infirmities brought upon him by the labors and exertions of half a century, is arraigned as an offender, and compelled to employ, in defending himself against a criminal prosecution, the few and short intervals of ease allowed to him by sickness. Placed at the bar of a court, after having sat with honor for sixteen years on the bench, he is doomed to hear the most opprobrious epithets applied to his name by those whose predecessors were accustomed to look up to him with admiration and respect, and whose fathers would have been proud to have been numbered among his pupils. His footsteps are hunted from place to place, to find indiscretions which may be exaggerated into crimes. The jests which, flowing from the gayety and openness of his temper, were uttered in the confidence of private conversation; the expressions of warmth produced by the natural impetuosity of his character, are detailed by companions converted into spies and informers, and are adduced as proofs of criminal intention.

This cup, so full of bitterness for one who has been accustomed for forty years to fill the most honorable stations in his country, he drinks to the dregs without complaining. In this sad reverse, he supports himself with a calmness, a fortitude, and a resigned dignity which melt the hearts of those who are not his enemies, and extort the respect of those who are.

If sympathy must be excited, here let it find a nobler object. If from generous breasts it cannot be excluded, let it be turned towards

“A brave man struggling with the storms of Fate,”

and greatly supporting himself under a pressure of evils the most afflicting that an elevated mind can know.

Not content with endeavoring to blow up a flame of party spirit against the respondent, and to engage sympathy in the ungracious, and to her unnatural, task of aiding a criminal prosecution, the honorable Managers have resorted to a principle as novel in our laws and jurisprudence as it is subversive of the constitutional independence of the judicial department, and dangerous to the personal rights and safety of every man holding an office under this Government. They have contended “that an impeachment is not a criminal prosecution, but an inquiry in the nature of an inquest of office, to ascertain whether a person holding an office be properly qualified for his situation; or, whether it may not be expedient to remove him.” But if this principle be correct--if an impeachment be not indeed a criminal prosecution, but a mere inquest of office--if a conviction and removal on impeachment be indeed not a punishment, but the mere withdrawal of a favor of office granted--I ask why this formality of proceeding, this solemn apparatus of justice, this laborious investigation of facts? If the conviction of a judge on impeachment is not to depend on his guilt or innocence of some crime alleged against him, but on some reason of State policy or expediency, which may be thought by the House of Representatives, and two-thirds of the Senate, to require his removal, I ask why the solemn mockery of articles alleging high crimes and misdemeanors, of a court regularly formed, of a judicial oath administered to the members, of the public examination of witnesses, and of a trial conducted in all the usual forms? Why not settle this question of expediency, as all other questions of expediency are settled, by a reference to general political considerations, and in the usual mode of political discussion? No! Mr. President! This principle of the honorable Managers, so novel and so alarming; this desperate expedient, resorted to as the last and only prop of a case, which the honorable gentlemen feel to be unsupported by law or evidence; this forlorn hope of the prosecution, pressed into its service, after it was found that no offence against any law of the land could be proved, will not, cannot avail. Every thing by which we are surrounded informs us that we are in a court of law. Every thing that we have been three weeks employed in doing reminds us that we are engaged not in a mere inquiry into the fitness of an officer for the place which he holds, but in the trial of a criminal case on legal principles. And this great truth, so important to the liberties and happiness of this country, is fully established by the decisions of this honorable Court, in this case, on questions of evidence--decisions by which this Court has solemnly declared, that it holds itself bound by those principles of law which govern our tribunals in ordinary cases. These decisions we accepted as a pledge, and now rely on as an assurance that this cause will be determined on no newly discovered notions of political expediency, or State policy, but on the well settled and well known principles of law and the constitution.

Having taken this view of these preliminary points, I now proceed, Mr. President, to consider the various charges against our honorable client, in the order in which they have been stated by the prosecutors. It is not my design to go over the same ground which has been so recently trodden by my able colleagues. The task assigned to me, is to range rapidly over the first six articles; to present some views of the subject, which the multiplicity of the matter induced my learned colleagues to omit; and then to discuss at large the law and the facts, under the seventh and eighth articles, which have not yet been touched.

Let the charge, Mr. President, be carefully examined, and it will be found to have no object in view but to convince the people of Maryland, by arguments drawn from reason and experience, of the danger of adopting a change in their State constitution, which had been submitted to their consideration, and the object of which was to abolish all their supreme courts of law; to introduce a system entirely new and untried; and above all, to destroy the independent tenure of judicial office, secured to them by their existing constitution; and to leave the judges dependent on the Executive for their continuance in office, and on the Legislature for their support. The respondent, who had contributed largely to the formation and establishment of the State constitution, was greatly alarmed at these changes. He considered them as of the most destructive tendency to the liberty and happiness of the State to which he belonged, and he resolved to take this opportunity of warning his fellow-citizens against them. This is the whole scope of his address to the grand jury, to show the importance of an independent judiciary, the dangerous tendency of changes already made, and the mischiefs which would result from taking this additional step in the career of innovation. He did, indeed, advert to the act of Congress for repealing the circuit court law, and remarked that it had shaken to its foundation the independence of the Federal judiciary; but the manifest and sole object of this was, to show that the spirit of innovation had gone forth, and ought to be carefully watched; that the public respect for great constitutional principles had begun to be weakened; and that by how much the security which might have been derived from an independent Federal judiciary had been diminished, by so much the more vigilantly it behooved us to guard our State institutions. No other object can be discovered in the charge, or inferred from its general tenor, or from the language in which it is expressed; neither is there any evidence which has the most remote tendency to show that he had any other object in view. And was not this an object which a citizen of this country might lawfully pursue? Is it not lawful for an aged patriot of the Revolution to warn his fellow-citizens of dangers, by which he supposes their liberties and happiness to be threatened? Or will it be contended that a citizen is deprived of these rights because he is a judge? That his office takes from him the liberty of speech which belongs to every citizen, and is justly considered as one of our most invaluable privileges? I trust not. And if there could be any doubt on this point, I would remove it by referring to a recent instance of two judges of the Supreme Court of Maryland, who, in a late political contest, entered the lists as champions for the rival candidates, and travelled over a whole county, making political speeches in opposition to each other. Yet these gentlemen justly possess the confidence and respect of the public; their conduct in this instance has never been considered as a violation of duty; and he who espoused the interest of the successful candidate has been far from receiving any marks of displeasure from the Government of this country.

If, therefore, a judge retain this right, notwithstanding his official character; if it still be lawful for him to express his opinions of public measures, to oppose by argument such as are still pending, and to exert himself for obtaining the repeal, by constitutional means, of such as have been adopted, I ask what law forbids him to exercise these rights by a charge from the bench? In what part of our laws or constitution is it written that a judge shall not speak on politics to a grand jury?--shall not advance, in a charge from the bench, those arguments against a public measure which it must be admitted he might properly employ on any other occasion? Such conduct may perhaps be ill-judged, indiscreet, or ill-timed. I am ready to admit that it is so; for I am one of those who have always thought that political subjects ought never to be mentioned in courts of justice. But is it contrary to law? Admitting it to be indecorous and improper, which I do not admit, is every breach of decorum and propriety a crime? The rules of decorum and propriety forbid us to sing a song on the floor of Congress, or to whistle in a church. These would be acts of very great indecorum, but I know of no law by which they could be punished as crimes. Will they who contend that it is contrary to law for a judge to speak of politics to a grand jury, be pleased to point out the law of the land which forbids it? They cannot do so. There is no such law. Neither is there any constitutional provision or principle, or any custom of this country, which condemns this practice.

And will this honorable body, sitting not in a legislative but a judicial capacity, be called on to make a law, and to make it for a particular case which has already occurred? What, sir, is the great distinction between legislative and judicial functions? Is it not that the former is to make the law for future cases; and that the latter is to declare it as to cases which have already occurred? Is it not one of the fundamental principles of our Constitution, and an essential ingredient of free government, that the legislative and judicial powers shall be kept distinct and separate? That the power of making the general law for future cases shall never be blended in the same hands, with that of declaring and applying it to particular and present cases? Does not the union of these two powers in the same hands constitute the worst of despotisms? What, sir, is the peculiar and distinguishing characteristic of despotism? It consists in this, sir, that a man may be punished for an act which, when he did it, was not forbidden by law. While, on the other hand, it is the essence of freedom, that no act can be treated as a crime, unless there be a precise law forbidding it at the time when it was done.

It is this line which separates liberty from slavery; and if the respondent be condemned to punishment for an act, which far from being forbidden by any law of the land, is sanctioned by the custom of this country for more than twenty years past, then we have the form of free government, but the substance of despotism.