Tuesday, February 26.
The Court opened at about half past ten o’clock, A.M.; the Managers, the House of Representatives, and the counsel of the respondent having taken their seats.
Mr. Nicholson, as one of the Managers, addressed the Court in reply to the counsel of the accused. He said the House of Representatives having impeached Samuel Chase, one of the associate justices of the Supreme Court of the United States, of high crimes and misdemeanors; the evidence on their part having been adduced, and that on behalf of the accused, and the arguments of his counsel having been fully and patiently heard, it now became his duty to reply in support of the impeachment. To me, Mr. President, this duty is an unpleasant one. Upon all occasions and under all circumstances, the office of a public accuser is the most painful that can be imposed on us; but it is more peculiarly so when the object of accusation appears before us covered with age and infirmities. I think I speak the sentiment of my brother Managers of the House of Representatives, when I say, that this impeachment never would have been instituted, that it never would have arrived at its present crisis, if we had not believed that the best interests of our common country required that the conduct complained of should not go unpunished. There is no nation on earth, sir, in which the freedom of man and the consequent happiness of society are not inseparably interwoven with the full, free and impartial administration of justice.
“Una salus ambobus erit commune periculum.”
It was to preserve this unity of safety, to avert this common danger, that we thought ourselves bound by the most solemn obligation to bring these charges before the highest tribunal of the nation. We may in vain make laws to secure our property, to protect our liberty, and to guard our lives, if those to whom we appeal, and to whose decrees we are bound to submit, shall prove unfaithful in the discharge of their duty. If our laws are not faithfully administered; if the holy sanctuary of our courts is to be invaded by party feeling; if justice shall suffer her pure garment to be stained by the foul venom of political bigotry, we may indeed boast that we live in a land of freedom, but the boast will be vain and illusory.
In this point of view, therefore, this cause may justly be called an important one. I need not however urge its importance to the Court, for the feelings of every honorable member will speak its importance more forcibly than any thing that I can utter. But I do trust that those frequent appeals which you have heard, those frequent instances in which you have been reminded that posterity will pass between the accused, his accusers, and his judges, will have no influence on your minds. A desire to secure the approbation of posterity is an honorable feeling, pervading every human breast, and is most inseparable from our nature: but to secure the approbation of posterity, we must take care to pursue the dictates of our own consciences, and, by doing justice here, trust to posterity to do us justice too.
Our country, it is true, are now looking on with anxious solicitude for the event of this cause; but the sentence which they shall pass will not depend upon the judgment given here. To the world and to posterity the conviction of the accused, by this Court, will not establish his guilt; and I thank God, as the case has been put in issue between us, his acquittal will not prove his innocence. The facts in the cause, sir, those facts which we have proved by the most undeniable evidence, and upon which your judgment must be given; those facts will be presented to the eyes of the world and of posterity, and upon those only will they decide. If it should ever be the fortune of my humble name to descend to posterity, by the vote which I gave for instituting this impeachment, and by my conduct in discharging the great duty now committed to me, I cheerfully consent to be tried. To this awful tribunal I willingly submit. If the judge is guilty, posterity will heap on him all that odium which his guilt deserves; if he is innocent, let that odium be turned upon his accusers.
Because Sidney and Russell bled upon a scaffold, have their names been less the objects of veneration with posterity? and because Scroggs and Jeffries escaped the punishment due to their crimes, have they therefore been less the objects of universal execration? No, sir; and the honorable counsel (Mr. Hopkinson) who first addressed you on behalf of the accused, gave us himself a memorable example of the poor respect which posterity will feel for the decisions of those who have gone before them. That honorable gentleman told you that Warren Hastings was impeached for the murder of princes and the plunder of empires, and yet he was acquitted. But, is there any who hears me, that believes he was innocent? If we read the history of that trial; if we look to the facts charged, and listen to the unexampled eloquence by which they were supported, our only wonder will be, that he was not condemned. Sir, it has been said that those plundered millions were the best witnesses to prove his innocence; and I greatly fear that the day will come when the crying blood of those murdered princes will be the best witnesses to prove his guilt. The most splendid action in Edmund Burke’s life was his accusation of Warren Hastings; the foulest stain upon the national justice of England was his acquittal.
We have been charged, sir, by one of the honorable counsel (Mr. Harper) with having endeavored to enlist on our side the sympathies of the Court. Permit me to ask, what sympathy have we endeavored to excite? What feelings have we endeavored to engage? To what passion have we addressed ourselves? None, sir. We came here to demand justice. The constitution has placed in your hands the power of punishing guilt; we have proved the guilt of the person accused, and at your hands we demand his punishment. To your consciences and your understandings we appeal, and not to your feelings. These have been assailed by our adversaries. They have exhibited their client to you, covered, as they say, with the frost of seventy winters, and have endeavored to hide the magnitude of his crimes, in the length of his years, and the infirmity of his health. In attempting to excite your compassion, they have wished to drown the voice of justice, and have addressed you not as judges but as men. I do trust, however, that if any sympathy is to be excited, it will be neither for the accused, nor his accusers. Let your feelings be turned toward the nation! Let your sympathy be awakened for those who are to come after you, for by the sentence which you pronounce in this case, it must ultimately be determined whether justice shall hereafter be impartially administered, or whether the rights of the citizen are to be prostrated at the feet of overbearing and tyrannical judges. We, who are engaged in this prosecution, feel that our fathers handed down to us a glorious birthright, and we appear at this bar to demand that it be transmitted to our children unimpaired and unpolluted. Do the nation justice, and you will do justice to us, to yourselves, and to posterity. We were also told by the honorable counsel for the accused, that when we found the accusation shrunk from the testimony, and that the case could no longer be supported, we resorted to the forlorn hope of contending that an impeachment was not a criminal prosecution, but a mere inquest of office. For myself I am free to declare, that I heard no such position taken. If declarations of this kind have been made, in the name of the Managers, I here disclaim them. We do contend that this is a criminal prosecution, for offences committed in the discharge of high official duties, and we now support it, not merely for the purpose of removing an individual from office, but in order that the punishment inflicted on him may deter others from pursuing the baneful example which has been set them.
Nor do we mean to take another ground which the counsel for the accused have thought proper to assign us, for we never entertained the most distant idea that any citizen might be impeached. It was with no little surprise that I heard such doctrines ascribed to us, and I was astonished to hear the Attorney-General of Maryland combating positions which we had not laid down, and searching for argument to prove that which we should not have hesitated to admit.
But, sir, there is one principle upon which all the counsel for the accused have relied, upon which they have all dwelt with great force, and to the maintenance of which they have directed all their powers, that we cannot assent to; we mean to contend against it, because we believe it to be totally untenable, and because it is of the first importance in the decision of the question now under discussion. We do not contend that, to sustain an impeachment, it is not necessary to show that the offences charged are of such a nature as to subject the party to an indictment, for the learned counsel have said that the person now accused is not guilty, because the misdemeanors charged against him are not of a nature for which he might be indicted in a court of law.
To show how entirely groundless this position is, I need only pursue that course which has been pointed out to us by the respondent himself, and his counsel. I might refer to English authorities of the highest respectability, to show that officers of the British Government have been impeached for offences not indictable under any law whatever. But I feel no disposition to resort to foreign precedents. In my judgment, the Constitution of the United States ought to be expounded upon its own principles, and that foreign aid ought never to be called in. Our constitution was fashioned after none other in the known world, and if we understand the language in which it is written, we require no assistance in giving it a true exposition. As we speak the English language, we may, indeed, refer to English authorities for definitions, as we should refer to English dictionaries for the meaning of English words; but upon this, as upon all occasions, where the principles of our Government are to be developed, I trust that the Constitution of the United States will stand upon its own foundation, unsupported by foreign aid, and that the construction given to it will be, not an English construction, but one purely and entirely American.
The constitution declares, that “the judges both of the supreme and inferior courts shall hold their commissions during good behavior.” The plain and correct inference to be drawn from this language is, that a judge is to hold his office so long as he demeans himself well in it; and whenever he shall not demean himself well, he shall be removed. I therefore contend that a judge would be liable to impeachment under the constitution, even without the insertion of that clause which declares, that “all civil officers of the United States shall be removed for the commission of treason, bribery, and other high crimes and misdemeanors.” The nature of the tenure by which a judge holds his office is such that, for any act of misbehavior in office, he is liable to removal. These acts of misbehavior may be of various kinds, some of which may, indeed, be punishable under our laws by indictment; but there may be others which the law-makers may not have pointed out, involving such a flagrant breach of duty in a judge, either in doing that which he ought not to have done, or in omitting to do that which he ought to have done, that no man of common understanding would hesitate to say he ought to be impeached for it.
The words “good behavior” are borrowed from the English laws, and if I were inclined to rest this case on English authorities, I could easily show that, in England, these words have been construed to mean much more than we contend for. The expression durante se bene gesserit, I believe, first occurs in a statute of Henry VIII. providing for the appointment of a custos rotulorum, and clerk of the peace for the several counties in England. The statute recites, that ignorant and unlearned persons had, by unfair means, procured themselves to be appointed to these offices, to the great injury of the community, and provides that the custos shall hold his office until removed, and the clerk of the peace shall hold his office durante se bene gesserit. The reason for making the tenure to be during good behavior, was, that the office had been held by incapable persons, who were too ignorant to discharge the duties; and it was certainly the intention of the Legislature that such persons should be removed whenever their incapacity was discovered. Under this statute, therefore, I think it clear that the officer holding his office during good behavior, might be removed for any improper exercise of his powers, whether arising from ignorance, corruption, passion, or any other cause. To this extent, however, we do not wish to go. We do not charge the judge with incapacity. His learning and his ability are acknowledged on all hands; but we charge him with gross impropriety of conduct in the discharge of his official duties, and as he cannot pretend ignorance, we insist that his malconduct arose from a worse cause.
It has been alleged by the counsel for the accused, that my honorable colleagues have argued this case upon the articles and not upon the evidence; and this allegation contains an admission, that if the articles are proved, the guilt of the party is established. It shall be my endeavor to show that there is no material variance between the charges as laid in the articles, and the evidence brought to support them; but that they are amply and fully proved by the very best testimony which could be adduced.
One of the learned counsel in commenting upon the first article, declared that he discovered but a single truth in it, which was, that the judge had formed and reduced to writing an opinion upon the law; and that gentleman, as well as the Attorney-General of Maryland, labored with great zeal and with much display of talent, to convince the Senate that there could be nothing wrong in this. Unfortunately for these learned gentlemen, even that truth is not to be found in it, for by recurring to the article it will be found that the judge is not charged for having formed an opinion, or for having reduced that opinion to writing, but for “having delivered an opinion in writing on the question of law, on the construction of which the defence of the accused materially depended, tending to prejudice the minds of the jury against the prisoner before counsel had been heard in his defence.”
In this we find no charge against him for having formed an opinion, or for having reduced it to writing, and certainly the learned counsel might have spared themselves the trouble of proving what I am sure every member of the Court was fully convinced of before, that there was no impropriety in a judge’s forming an opinion on any subject whatever, whether legal or philosophical. It is not, however, usual for skilful advocates to attempt to draw the attention from the material points in dispute, for the purpose of fixing it on others of little or no importance. Such has been the course pursued by our adversaries. But, Mr. President, the real charge is, that Samuel Chase did, upon the trial of John Fries for treason, endeavor to prejudice the minds of the jury against him, by delivering an opinion to them upon the law before his counsel were heard; and this too in a case of life and death, where the jury had an ample, uncontrollable right, to decide as well the law as the fact. It is the right and duty of judges to inform their minds upon all questions of law whatsoever, but it is an unwarrantable proceeding, it is an unauthorized assumption of power in them, to deliver that opinion to the jury in a criminal cause before the jury is sworn, and before the counsel of the prisoner have been heard in his defence.
Much has been said with a view to convince the Court that the opinion thus delivered was a correct one, and it has therefore been argued that his conduct was perfectly justifiable. For my own part, I consider it totally immaterial in the present case whether the doctrine of treason, as laid down by the judge, was correct or not; for even if it were correct, the time and manner of delivering it, and the persons to whom it was delivered, form the substance of the charge against him. It is a misdemeanor, a high misdemeanor in a judge, wantonly to give an opinion upon any case which is to come before him, previously to the swearing of the jury, and the offence is made much greater by the opinion being publicly declared in the presence of the jury, who ought to come to the trial of every cause with minds wholly free from prepossession against either party.
Although the judge has said in his answer, that no gentleman of established reputation for legal knowledge would deliberately give a contrary opinion, yet I have not the slightest apprehension that any little reputation which I may possess, can in any manner be affected by my expressing, as I now do, my entire conviction that the doctrine of treason, as laid down in Fries’s case, is wholly repugnant to the spirit and meaning of the constitution. It is not my intention at this time to enter into an argument to prove this, for I have before said that I consider it quite immaterial in the present discussion; but I will offer some few observations, to demonstrate to the Senate that there was nothing very unreasonable in the wish expressed by Mr. Lewis and Mr. Dallas, to show that the constitution was susceptible of another construction.
The constitution declares that “treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” John Fries was indicted for levying war against the United States, and the facts I believe were, that he, with some others, did, in a forcible manner, rescue some prisoners from the marshal of Pennsylvania. This was called a resistance to a law of the United States, and, by construction, was determined at the former trial to be the treason of levying war. It was in opposition to this construction of the constitution that Mr. Lewis and Mr. Dallas wished to be heard. It was certainly not a very extravagant wish on their part, for it ought to be recollected that we are a young nation, and it is deeply interesting to us all that the Constitution of the United States should not receive a construction unwarranted by its letter. After the decisions had taken place in the courts upon the Western insurrection, (I mean in the cases of Vigol and Mitchell,) Congress had passed an act declaring that to resist a law of the United States should be deemed a high misdemeanor, punishable by fine and imprisonment; and they had before provided, by the act of 1789, that to rescue prisoners from the custody of the marshal should also be punishable by fine and imprisonment. Mr. Lewis and Mr. Dallas were desirous of showing that Fries’s case came within the provisions of these laws, and that his offence was not of such a nature as to forfeit his life. They also wished to have an opportunity of proving that the terms levying war ought not to receive the same construction here as in England. To convince the Senate that they were not singular in their ideas, and that the construction given by the Court has not been unanimously assented to, I shall take the liberty of referring to an author of merited reputation, to whom I believe our adversaries will not refuse their respect. Judge Tucker of Virginia, in his valuable edition of Blackstone’s Commentaries, in the appendix to the fourth volume, under the title of treason, after reciting that part of the constitution relating to the subject, observes:
[Here the opinions of Judge Tucker were read.]
Such we find are the opinions of Judge Tucker, an able and upright lawyer, who thinks that the constitution ought to be construed agreeably to the plain import of its language, and ought not to be involved in technical abstruseness. In that series of publications entitled the Federalist, written at the commencement of the present Government, by some of the ablest men in this nation, for the purpose of defending the constitution, it is matter of boast, that treason was fully defined, and not left to wild and arbitrary construction. But what avails the definition, if the constructive treasons of England are to be drawn in as precedents for us?
I before stated that I did not mean to enter into an argument against the correctness of the Court’s opinion; nor have I done so, but have offered these remarks to show that it was not unreasonable in Mr. Lewis and Mr. Dallas to wish that another construction of the constitution might be received. The counsel for Judge Chase seem to think it monstrous that they should have wished to argue the point after the law had been settled by three former decisions, which had taken place in the course of four years. Let it be remembered that Sir Matthew Hale doubted, after the lapse of one hundred and fifty years from the first of these constructive treasons, and after, for aught I know, one hundred and fifty cases had been decided. Mr. President, far from thinking their conduct on that occasion extraordinary, I, as a free man of America, most cheerfully accord them my thanks for the stand they made; and I do hope and trust, that if ever a similar case should occur, in which the same doctrine of constructive treasons shall be urged to a jury, men like Mr. Lewis and Mr. Dallas will be found, men of exalted talents and extensive learning, who will be bold enough to assert the rights of the citizen, and save the constitution of their country from destruction.
Another justification of a peculiar nature is set up in defence of Judge Chase, by a statement made in Keelyng’s Reports. It is there said that “after the happy restoration of King Charles the Second, Sir Orlando Bridgman, chief justice of the King’s Bench, and some six or eight others, judges, prosecutors, and King’s solicitors, assembled for the purpose of determining in what manner the regicides should be tried, and they settled many points which it was supposed would occur upon the trials.” This, sir, is an unfortunate period to refer to for justification of the conduct of judges in our day. Never was there a moment of such fawning servility; never was there a period of such unbounded licentiousness. The hope of reward or the fear of punishment brought almost every man crouching at the footstool of the throne, and all united in singing hosannas to the King, and crying aloud for the crucifixion of the miserable regicides. This conspiracy (which has been quoted) against the wretched victims whose sacrifice was resolved on, was headed by that most servile of all servile tools, Sir Orlando Bridgman. His character and those of his brother judges who conspired with him, may be recollected from the charge which he gave to the grand jury on that occasion. It will be found in the fourth volume of State Trials, and it will there be seen how flamingly he talked of the divine right of Kings, whom he called God’s vicegerents on earth; their persons he said were too sacred for their conduct to be inquired into: they held their power from God, and were accountable to him alone: it was treason in their subjects to inquire into the propriety of what they did; with much more of the same cast. These are the times, these the men, and this is the conduct now introduced for the justification of Judge Chase. If they will afford him a justification he is welcome to it for me. They were woful times indeed; one would have thought the Parliament which the King found in session upon his return, was submissive enough; but he was not satisfied, and finding the whole nation ready to bow at his nod, he ordered a new one elected, and they proved so compliant to all his wishes, that he continued them for eighteen years. This sufficiently proves the servile spirit of those whom the King thought proper to employ on this noted occasion, and it is not much to Mr. Keelyng’s honor that he was one of them. The points which they did settle were of an extraordinary nature, and one of them was read a few days since by one of the counsel (Mr. Key) to show that Basset was a good juror in Callender’s trial.
If, however, this famous precedent had been made in the best of times, it does not apply to the present case. For these judges, bad as they were, yet had modesty enough to keep their opinions to themselves, till after the trials had commenced, and did not deliver them until the occasions arose which called for them. Judge Chase, we have fully proved, delivered his opinion beforehand, publicly, and in the hearing of the jury, so that the authority of Mr. Justice Keelyng and Sir Orlando Bridgman does not justify him. He outstripped even them.
Having thus, as I conceive, fully established the first specification contained in this article, and having answered the only colorable excuses advanced in favor of the judge, I shall proceed to the second specification. This is a charge against him for “restricting Fries’s counsel from recurring to such English authorities as they believed apposite, and from citing certain statutes of the United States, which they deemed illustrative of the positions upon which they intended to rest the defence of their client.”
I must therefore be permitted to insist that Fries’s counsel were prohibited from recurring to English authorities, and from citing certain statutes of the United States. It is fully proved by Mr. Lewis, and corroborated by Mr. Dallas. The latter was not in Court when the conversation took place; but coming in immediately after, he was informed of it by Mr. Lewis, and then stated to the Court what Mr. Lewis had told him. The Court did not deny it, and certainly it is to be presumed, if Mr. Lewis had made an erroneous statement of facts to Mr. Dallas, and they had been repeated by Mr. Dallas, the Court would have contradicted them. This was not done, and both these gentlemen now swear that they were prohibited.
An attempt, however, is made to shelter the judge from this part of the accusation, by saying that he declared counsel would be heard although this opinion was given. Sir, this is another evasion. The opinion itself carries with it internal, uncontrovertible evidence of the determination of the Court that the counsel should not address the jury. What is the principal ground of the defence? what is the leading reason urged for giving this extraordinary opinion before the jury was sworn? It was, as the judge says, and as his counsel have argued, to save time. They state that there were more than one hundred civil causes then depending, that the delay of business in Pennsylvania had been long a subject of complaint, and the judge was anxious to make Fries’s trial a short one, in order that they might have time to proceed with the other business. Now suffer me to inquire how time was to be saved; how the trial of Fries was to be shortened, if his counsel were to be allowed to address the jury on the law which the Court had already decided? Was not the opinion of the Court given for the express purpose of preventing them from addressing the jury; or, if not for this, let me ask for what purpose it was given? Was it to prejudice the minds of the jury; to close their ears and their understandings against any arguments which might be offered them? Gentlemen say no. Was it to save time? This was impossible, because the time was still to be occupied by the counsel being permitted to address the jury. Why then, let me ask, was the opinion given? The answer is ready. It was intended to produce both these effects. The minds of the jury were to be preoccupied by the imposing authority of the Court, and in this manner it was expected to deter the counsel from addressing them on the law. Nothing, therefore, can be clearer, than that the counsel were prevented from addressing the jury, and that the judge “endeavored (in the language of the article) to wrest from the jury their right to hear argument, and determine upon the question of law.” But it is said that the right of the jury to decide the law does not give them a dispensing power over the law, and that therefore they are bound by the opinion of the Court. Nor does the right of the Court to decide the law give them a dispensing power over the law. The jury have a right to decide the law, and are not bound by the opinion of the Court. In order to enable them to decide correctly they have a right to hear argument, and any attempt to prevent this, is an attempt to wrest from them their right to decide the law, and is a high misdemeanor.
We are told, however, that if any thing wrong was done on the first day, ample atonement was made on the second. It is true that the judge exhibited some appearance of a wish that the counsel would proceed on the second day, but Mr. Lewis well remarked, that although the papers were withdrawn, the impression which had been made on the minds of the jurors could not be removed. What sort of an atonement, too, was this? It carried insult with it; and the language in which it was made had a still greater tendency to strengthen the impression made the day before. The counsel were publicly informed they might proceed as they pleased, but it must be at the hazard of their characters, under the direction of the Court. Is there a man of reputation on earth, possessed of the smallest spark of feeling, that would consent to disgrace himself by addressing a jury under such circumstances? This alone, if nothing else had taken place, was sufficient to drive them from the defence of their client; and if they thought that their abandoning him might eventually save his life, they were fully justified in doing so.
The learned advocates for the judge have talked highly of the independence of the judiciary, and have asked what inducements any judge could have to act as we have charged Judge Chase with acting. Are there then no inducements for a judge to swerve from his duty? Has he no feelings to gratify, and is it impossible for him to become a partisan? Does his character as a judge divest him of his ambition as a man? Is he so incorruptible that temptation cannot assail him? Look through the annals of other nations—read the history of England for the last forty years. Judicial independence has been for a long time as well secured there as here; and yet how many instances shall we find in that country of prosecutions in which the feelings of the Ministry had been engaged, and in which their influence over the judges has been too flagrant to be mistaken? In Ireland, miserable Ireland, a still more gloomy prospect presents itself. They, too, have boasted an independent judiciary; but an overruling influence has crumbled it into ruins. The demon of destruction has entered their courts of justice, and spread desolation over the land. Execution has followed execution, until the oppressed, degraded, and insulted nation has been made to tremble through every nerve, and to bleed at every pore. Let us then be warned by the fate of Ireland. In State prosecutions her judges look to the Castle; although they cannot be put down, they may be elevated. Some of our judges have been elevated to places of high political importance; splendid embassies have been given to them. I will not say that they were given or accepted with improper views; but they have been given, and surely they hold out inducement enough for a judge to bend to the ruling party. It is our duty to prevent party spirit from entering into our courts of justice. Let us nip the evil in the bud, or it may grow to an enormous tree, bearing destruction upon every branch. You have now an opportunity of doing it, and I trust you will not suffer it to escape you. I therefore hope that you will not only remove Judge Chase from the high office which he now fills, but that by your judgment you will for ever hereafter disqualify him from holding any office of profit or trust under the Government of the United States.
Mr. Rodney.—Mr. President, and Gentlemen of the Senate: The present trial exhibits a spectacle truly solemn and impressive. A man who holds one of the highest judicial offices under the Government, who, from the period of the Revolution, has filled many of the most important public situations, and whose hairs have been bleached in the service of his country, is charged before this dignified tribunal, by the Representatives of the American people, with the commission of acts in violation of his duty as a judge, and of the laws and constitution of the land.
On one hand, the character of an aged and respectable individual, which may be dearer to him than the small remnant of his life, is involved in your decision; on the other, the most precious rights of free citizens, and the dearest interests of society.
The mind which could contemplate, unmoved, such a scene, cannot feel for the welfare of the people, or the honor of the nation, and must be equally insensible to the finer sympathies of life, and the practice of its charities and affections.
The public anxiety manifested by this deeply interesting trial must be evident to all—a trial of the first importance, because of the first impression—a trial not confined to a single act in the conduct of the accused, but embracing a variety of transactions at different periods of his life—a trial which departs from the ordinary mode of decision, whose novelty and magnitude have excited so much interest and attention that it seems to have superseded for the moment, not only every other grave object or pursuit, but every other fashionable amusement or dissipation.
The task of prosecuting is always very unpleasant, and to me extremely painful; but my rule has ever been not to suffer private considerations or personal feelings to stand in the way of a firm and independent discharge of public duty.
To this exalted tribunal I look with confidence for a display of that dignified impartiality, which will do credit to their elevated situation, and reflect honor on their country. You will raise yourselves, I am convinced, above the common level of human prejudices, personal or political, and will suffer no considerations but those which are perfectly correct to be blended with your inquiries or mingled with your decisions.
Party, it is true, is a spirit of so subtle a nature as to diffuse itself almost imperceptibly over the human mind; it frequently pervades the system without being felt, and sometimes warps the judgment when least suspected. Against the influence of this spirit I need scarcely caution the judges whom I have the honor to address. It cannot approach within the pale of this Court, or enter their hallowed walls.
I have marked, Mr. President, in the questions which you have so correctly put to the witnesses in the course of their examination, that singleness of eye, which looks to the discovery of truth alone, without reference to the party whose case it may affect; whilst your conduct in maintaining that order and decorum suitable to the solemnity of the occasion has exhibited an example worthy of imitation.
I have observed, with heartfelt pleasure and honest pride, the unwearied and impartial attention paid by the members of this Court during the progress of this momentous cause. To my mind it presages a decision worthy of themselves, and serviceable to their country, and is a sure pledge that their determination will be honest, upright, and independent.
If, after a fair and full inquiry into the facts, illustrated by the arguments for and against the accused, and a careful examination of the law, commented on by those whose duty it is to support the impeachment, and those who are opposed to it, the Senate shall be of opinion that the charges have not been substantiated, and pronounce a verdict of acquittal, believe me, sir, I, as a citizen faithful, obedient, and affectionate to the laws of my country, shall most cheerfully acquiesce in the decision. But I do confidently trust that it will not take place, on the principles or the precedent established in the case of Warren Hastings, the Governor of Bengal, that plunderer of India, that destroyer of the people of Asia, that devastator of the East, whose crimes were without number, and whose enormities exceeded calculation. What fields have been dyed, what streams have been tinged with the innocent blood of victims sacrificed on the altar of his avarice or his ambition! An obligation however solemn, a treaty however sacred, interposed but a weak and feeble barrier to the views of his personal or political aggrandizement. Even a zenana, the sacred retreat of women, holy and consecrated to the fairest work of the creation, by the religious customs of that country, has been violated whenever the silver and the gold, the jewels and the diamonds, were sufficient objects to attract his attention or gratify his rapacity.
The House of Representatives, so far from deserving blame, in my humble opinion, merit commendation for the reluctance with which they proceeded to accusation, and for the care, caution, and dignity which have marked their steps. I have frequently heard an unbecoming zeal reprobated in a prosecutor; but never before did I hear from the lips of a counsel for an offender, a complaint of delay and remissness in charging his client with guilt. What a striking contrast does their conduct furnish, compared with that of the defendant! They betrayed no thirst for prosecution, but an unwillingness to accuse; no eager appetite for conviction, but an anxious desire that impartial justice should take place between the public and an individual, whom irresistible evidence had compelled them to present before the highest judicial authority of the nation. Not, it is true, for the murder of despotic princes whose will was the law, and whose laws perhaps were as sanguinary as those of Draco; nor for the plunder of empires, swayed by an iron sceptre as oppressive as the dominion of Hastings. Far other crimes are laid to his charge. The defendant, a citizen of this free land, sworn to support our mild constitution and our equal laws, and bound by his oath of office to administer justice impartially, having a perfect knowledge of his duty, (for of ignorance the whole world will acquit him,) stands charged with plundering, in the holy habit of a judge, a jury of his country of their most sacred rights, and injured and insulted freemen of their constitutional privileges.
He was indeed providentially prevented from imbruing his hands in the blood of poor Fries, but he stands accused of shedding, with unfeeling severity, the life-blood of the constitution itself.
Such are the crimes for which he is arraigned at your bar, and which one of the gentlemen has been pleased to term petty offences. In the dark catalogue of criminal enormities, perhaps few are to be found of a deeper dye. If I were an advocate of the doctrines of constructive and cumulative treasons, of which the learned judge appears to have been a great admirer and a zealous supporter, I would say that he himself was guilty of judicial treason against the constitution of the country and majesty of the people.
The independence of the Judiciary, the political tocsin of the day, and the alarm bell of the night, has been rung through every change in our ears. They have played upon this chord until its vibrations produce no effect. The sound is rather calculated to stun us into an insensibility against real attacks, for the poor hobby has been literally rode to death. To the rational independence of the Judiciary, I am, and ever have been a firm and uniform friend. But I am no advocate for the inviolability of judges more than of kings. In this country I am afraid the doctrine has been carried to such an extravagant length, that the Judiciary may justly be considered like a spoiled child. They are here placed almost beyond the reach of the people, though not beyond the immediate power and influence of the Executive. I wish not to see them the slaves of any administration, but the faithful and impartial executors of justice. My desire is that the laws, like the providence of the Deity, should shed their protecting influence equally over all.
It will be allowed that the hopes of an individual are as powerful inducements to action as his fears. Whether the Executive can depress or exalt him, his influence is equally great. Whether he can punish his errors or reward his faults, his dominion is the same. We all know that an associate judge may sigh for promotion, and may be created a Chief Justice, whilst experience teaches us, that more than one Chief Justice has been appointed a Minister Plenipotentiary. These facts are staring us in the face, when we talk of judges being independent of the Government.
What has been the natural effect of such conduct? Have the judges stood aloof during the political tempests which have agitated the country—or have they united in the Io triumphe which the votaries and idolaters of power have sung to those who were seated in the car of Government? Have they made no offerings at the shrine of party; have they not preached political sermons from the bench, in which they have joined chorus with the anonymous scribblers of the day and the infuriate instruments of faction? Let a recurrence to past events decide.
I wish to be understood as speaking on these topics in the abstract, and not with a view of imputing improper motives to those concerned in the arrangements which have taken place.
The people of the United States, on the other hand, have no offices of profit and emolument to bestow. They have no post immediately in their power to give, except a station in the House of Representatives, which a judge would not accept from their hands. But, let me ask, was there no vacancy in the gift of the Executive, to which the defendant could aspire, and to which his conduct might furnish him with a passport or a letter of introduction?
Some observations have been made on the independence of the judges in England. In that country they are removable by an address of both Houses of Parliament. By what a slight tenure, by what a slender thread, are their offices held! The voice, nay, the whisper, or the breath of the Minister for the time being, may remove them, and yet they have generally manifested a spirit of real independence, even in the season of alarm and terror, of which I fear our judges at a similar period cannot boast. But in that country, a seat on the bench is considered as a place of rest, and they look not beyond it. There the judges are not made Envoys Extraordinary or Ministers Plenipotentiary.
We ought not to be imposed upon by names in this country. Give any human being judicial power for life, and annex to the exercise of it the kingly maxim “that he can do no wrong,”—you may call him a judge or justice, no matter what is the appellation—and you transform him into a despot, regardless of all law but his own sovereign will and pleasure.
Suffer me at this place to notice the remarks of the learned counsel who spoke yesterday, (Mr. Harper,) with so much sensibility and feeling for his client, on the change of parties in popular governments, and the proscriptions, persecutions, and punishments, too frequently inflicted by those who are triumphant, on the fallen victims of their authority; when acts, innocent in themselves, because against no known law, have been converted into crimes to gratify the vindictive passions of the victorious against those whom the fortune of political war has placed within their power. No man can deprecate more sincerely than I do, such a state of things. To the situation of affairs in this country, I presume these remarks cannot have the most distant application. If they were made with reference to the present Administration, to the Executive or Legislative Departments of the Government, the allusion may, perhaps, have the light support of visionary imagination, but has no substantial foundation in reality. It may be fancy, but is not fact.
The illustrious Chief Magistrate of the Union[22] has furnished a precedent, by his liberal and enlightened conduct, of which the lamentable annals of mankind afford no example. Under his wise and his mild guidance, what auspicious beams of public sunshine have been diffused over the whole face of the country! until, to the discontented few, the language of the Latin poet might justly be applied—
“O fortunati nimium sua si bona norint.”
This enlightened policy has been adopted in conjunction with the luminous constellation of distinguished worthies, by whom he is surrounded; whose exalted character and talents add to the usefulness, the dignity, and splendor of his measures, and increase to an extent almost incalculable the general sum of the happiness of this great and independent nation.
Turning our eyes to those who have exercised the high and responsible functions of legislation, we find their acts equally deserving commendation. Their proceedings are calculated to excite at once the envy and the admiration of their opposers and the world. They breathe not the fell spirit of resentment and persecution. To their honor be it spoken, that, instead of enlarging the circle of offence, they have reduced the scale of criminality. They have abolished an odious, and, I believe, an unconstitutional sedition law, which had been executed with a rigor and severity perfectly congenial with the passionate policy which gave it birth. The decrees under it, if not written in the blood of the sufferers, were written in their tears. A more dreadful engine of persecution and oppression cannot well be conceived. With this instrument in their hands, they could have smote their enemies and shielded themselves. It would have been a sword and a buckler, but they disdained the idea.
Actuated by the best motives, with the honest view of purifying the fountain of justice, and restoring the characters of the American bench, they are now engaged in the unpleasant, but indispensable task of bringing to exemplary punishment a judge who has offended against the letter and the spirit of the constitution, and the well-known statutes of Congress; who has violated the bounden duties of his office, and that high legislative act, which, to the sanction of a law, added the solemnity and obligation of an oath.
In this important undertaking they are contending not for themselves, but for posterity; not for those in power, but those whom power has forsaken. Against all the wild theories of new-fangled opinions and the monstrous iniquity of exploded doctrines, they wish to teach a lesson of instruction to future judges that, when intoxicated by the spirit of party, they may recollect the scale of power may one day turn, and preserve the scales of justice equal.
It appears that Fries had been tried in the year 1799, before Judges Iredell and Peters, and convicted of the crime of high treason. His counsel afterwards moved for a new trial, on the ground that one of the jury had been prejudiced against him—that he had not in fact been an impartial juror in the case. The Court, consisting of the same judges, upon argument, ordered a new trial to be had. A new trial, according to the best authorities, is “a rehearing of the cause before another jury, but with as little prejudice to either party as if it had never been heard before.” In this light Judge Chase should have considered it. He ought to have gone to Pennsylvania with a mind totally unprejudiced, and viewed every circumstance of the case with the utmost impartiality. The very circumstance which produced the second trial ought to have put him sufficiently on his guard. When a new trial has been directed, to use the language of the respondent in his answer, “solely on the ground that one of the jury” (a single man out of twelve) “after he was summoned, but before he was sworn on the trial, had made some declarations unfavorable to the prisoner,” how ought an impartial judge to have felt and to have acted? Mr. Chase, let it be recollected, presided in a court composed of but two members. With this lesson before his eyes, we find the respondent forming an opinion in his closet on the law of treason, applicable to the case of poor Fries, and not satisfied with making up his own mind on this subject, he took care to bind the judgment of his associate, by obtaining his approbation of that opinion, which he reduced to writing for the purpose. This irregular and reprehensible measure was adopted before the hour of trial arrived, when the man whose life was at stake was to be heard on a subject that involved his existence. This bold step in the path to conviction, has been defended on plausible grounds, and by subtle refinements.
The respondent in his answer and the learned counsel in their defence, have endeavored to prove that this conduct was not only right, but perfectly proper and correct. Among the various pretexts eagerly laid hold of to justify this novel procedure, they urge as a reason for prejudging and despatching a capital case, the multiplicity of civil business pending in the same court! I will forbear to inquire into the facts on this point, though I believe there is not a spark of testimony to prove the allegation to its full extent, because, if the docket had been loaded with civil suits, it would form no excuse for hurrying through a criminal trial, on the issue of which the life of a fellow-citizen depended. That cause must be bad indeed that requires to be propped by such miserable expedients. When I first read this passage in the answer, it struck me with astonishment, and excited a burst of indignation which it is my duty to repress. “A multitude of civil business is depending, and therefore I must make up my mind conclusively on the law in a capital case, before the proper season arrives, without hearing a single word from the prisoner or his counsel in defence!” The learned judge certainly did not reflect on the effect of such an excuse, which instead of palliating his conduct, aggravates it. That he was in a great hurry, every part of his conduct proves. From the opinion, a copy of which is annexed to his answer, it would appear that he did not intend to make it public, at least until after the jury had been sworn and Fries was on his trial. In that we find these expressions: “The Court heard the indictment read on the arraignment of the prisoner some days past, and just now on his trial, and they attended to the overt acts stated in the indictment.”
This honorable Court will recollect that the whole current of the testimony proves, and the defendant in his answer admits, that he delivered the papers containing this ex parte opinion before Fries’s trial commenced. Such was his eagerness to despatch the case, with a view, he says, of reaching expeditiously the civil list. As if gifted with the spirit of intuition and with an infallible judgment, he seems not to have proceeded on the principle of castigatque auditque, but to have improved even upon that model, considering it not necessary for him to hear arguments at any stage of a cause, for the purpose of forming a correct opinion. His counsel ask us whether it be a fault in a judge to have a profound knowledge of the law, which will enable him to decide promptly any question that may occur; and the respondent said, on Fries’s trial, that “he had an opinion in point of law as to every case which could be brought before the Court, or else he was not fit to sit there.” Yet, when Callender’s trial was progressing, we find this same judge, upon a common point of practice relative to a challenge to the jury, calling out for Coke on Littleton to be brought into court before he could make up his mind on the subject.
The aid of precedent has been called in to justify this wide departure from principle, and it is contended that the opinion was correct in point of law. My honorable friend (Mr. Randolph) has detected and exposed the fallacy of this species of justification. I will remark that a great and respectable character (Lord Mansfield) has observed, that he is a most unrighteous and wicked judge who decides without hearing both sides—even when he decides correctly—because his judgment is the effect of chance or accident, and not the result of a fair, full, and impartial investigation. Precedents, let me observe, do not make the law, they are merely evidence of it; nor is the law to be absolutely decided by precedents, judicandum est legibus, non exemplis. “If a judge conceives that a judgment given by a former court is erroneous, he ought not in conscience to give the like judgment, he being sworn to judge according to law,” says Lord Chief Justice Vaughan. But Judge Chase declares that, had he differed in opinion from former precedents, even in a capital case, he should have held himself bound by them. But here let me ask, what are those precedents to which he subscribes? It is not my intention to go at full length into the discussion of them, or comment at large on the law of treason. My object is, on this interesting occasion, to enter a solemn protest against doctrines which would entail on us all the constructive treasons of another country, and to assign in a few words the reasons of my opinion. I am not to be deterred from my duty by the assertion that no counsel of eminence would controvert the principles laid down by the respondent in his ex parte opinion, more especially when characters of such high standing at the bar as Mr. Lewis and Mr. Dallas, have honorably and conscientiously opposed such monstrous doctrines. The Western insurrection in Pennsylvania was materially different from the momentary disturbances in the counties of Bucks and Northampton. The precedents which arose from one could not be applicable to the other, and the cases of Mitchell and Vigol, which have been cited, are readily distinguished from that of Fries.
In the first, the combination was formed and organized to seize all records and papers, and to destroy all offices, to expel all officers in the whole survey. The insurgents traversed the country armed, seized papers, attacked offices, and drove officers out of the country.
They seized and imprisoned the marshal, who escaped and returned to Philadelphia by a circuitous route.
They assembled at Cooche’s fort, consulted on the attack upon Colonel Neville’s house, marched thither in military array, summoned him to surrender by a flag, set fire to his house, and destroyed his records. They assembled at Braddock’s field; deliberated on taking the garrison at Pittsburg; marched thither with that avowed object; but finding the garrison prepared for defence they filed off.
They assembled after the proclamation, and after the militia were ordered to march. They avowed an intention to resist. They compelled the Government to negotiate. The leaders, Bradford and Marshal, fled on the approach of the army, and the insurgents generally accepted the terms of amnesty, as in a case of treason. The army was, however, maintained for some time in the country.
In the last, the people were illiterate, ignorant of the laws and language. They did not conspire to act themselves, but to prevent particular inferior officers from acting, by making the assessments in particular townships.
They acted like a mob, in obstructing the progress of the officers by threats, hooting, &c., and once they took an officer’s tax list or papers, but immediately returned them.
They assembled expressly to release or rescue a particular set of prisoners whom they called their neighbors.
They rescued the prisoners, and withdrew without injuring or attempting to injure the marshal, or the tax officers who were at Bethlehem.
They never suggested the idea of resisting the army. They dispersed as soon as the proclamation was issued, and they never met afterwards.
The distinctions are striking and obvious.
In the insurrection of 1794, the object was general; in the riot of 1799, it was particular.
In 1794, the insurgents acted as assailants; the rioters of 1799 stood on the defensive, and only obstructed the officers in attempting to act.
In 1794, the design of attacking a fort and resisting the army was deliberately formed, and overt acts committed to carry it into effect; in 1799, the idea of attacking or resisting the military power of the Government never was suggested.
In 1794, the sedition act had not provided for combinations to impede the execution of a particular law. In 1799 that act was in existence.
In 1794, the outrage extended to the seizure of the marshal to prevent his executing any process. In 1799, it was confined to the release of a particular set of friends and neighbors.
The precedents, therefore, of Mitchell and Vigol, which have been so much relied upon, did not, I humbly submit, apply to the case of poor Fries. But the defendant has dwelt much on the opinion expressed by Judge Iredell, in his charge to the petit jury on the former trial of Fries, notwithstanding the verdict was set aside, which was given on that occasion, and Judge Chase should have proceeded on the second trial, as little prejudiced by any opinions on the former, as if such trial had never taken place. It appears from the testimony of Mr. Dallas, that so confident was he of the broad difference between the cases of 1794 and 1799, that in the first trial he did not advert to the former, little suspecting that they would be considered as precedents for the latter. When he found, by the charge of Judge Iredell, that he did unexpectedly rely upon them, his intention was, in the second trial, to direct his arguments to the manifest distinctions between them. In this, however, he was disappointed by the arbitrary conduct of the defendant. Under these circumstances, can this case be considered binding and obligatory; or, is a single precedent to make the law, and absolutely prevent counsel from controverting it?
The case of Fries was succeeded by that of Callender. There is seldom one act of crying injustice without being followed by another. It is the misfortune, if not the fault, of the respondent, that his conduct compels us to unfold more than one solitary case, in which he grossly violated his duty and the laws of the land.
Callender had written a book, which I never saw until since the commencement of this trial—a wretched performance, which ought never to have excited in the breasts of the honest supporters of the late Administration any passion but contempt. They should have applied to it the memorable declaration of one who once figured in political life, “a wise and virtuous Administration is not to be battered down by mere paper shot.” The respondent, it appears, was furnished by one of his present counsel, (Mr. Martin,) when in the act of setting off for the district of Virginia, with a copy of this formidable work, which threatened destruction, in his opinion, to the Federal fabric. The book was ready scored to his hands, so that, with a single glance, he might discover the fatal passages. With this volume for a “vade mecum, or travelling companion,” he proceeded to Richmond to hold a circuit court. Soon after his arrival a presentment was made and an indictment found against Callender. The miserable object of persecution was hunted up and down the country. At length he was discovered by the marshal and brought into court. To the indictment he pleaded not guilty, and able and eminent counsel appeared to defend him.
Callender not being prepared with the testimony necessary to substantiate his defence, an affidavit was filed in due form, which stated ample grounds to postpone the trial of the cause, and upon which the Court ought certainly to have granted a continuance.
What are the objections raised against the motion to postpone, founded on this affidavit, and the reasons urged in support of the respondent’s refusal to put off the trial? They are truly singular. One is a refined technical objection to the form of the affidavit, because it does not state in strict legal language that Callender expected to be able to procure at a future time the attendance of the witnesses. But he states facts which prove on the face of them, that by postponing the trial he could obtain the benefit of their testimony, for he mentions the places of their residence, all of them within the United States. I say the case is stronger than if, secundum formam, he had sworn that he could procure their attendance. When he tells where they lived, the Court must have been satisfied on this point. However, the respondent assigns a curious reason to be sure, for his conduct. If the witnesses who were absent were actually before the Court, and were to prove all that Callender had stated or expected, it would riot have justified all the libellous passages that had been selected from the book and thrown into the indictment. How was Judge Chase to know but that Callender had testimony as to those points on which his absent witnesses would not have deposed?
The respondent, it seems, was willing to postpone it for a particular period, provided he would be present at the trial. Nay, he would go all the way to Delaware, and return again to accomplish an object he seems to have had so much at heart. In my humble opinion this part of the Judge’s conduct proves stronger than almost any other of his acts, the motives which influenced him. If I were to select any one circumstance to prove that his intentions were improper, I would lay my hand on this. “I will not postpone this important trial until the next term, because, according to the arrangement, I shall not then be on this bench, but I will agree to delay it for a shorter period, and travel three or four hundred miles in order to accommodate Mr. Callender with my presence on the trial.” Did any lawyer ever hear of such conduct? Did they ever hear of a court adjourning to a particular time, to try a single solitary case of a common misdemeanor?
I do respectfully submit, for the reasons assigned, that the conduct of the learned judge, in refusing to postpone the trial of Callender, was a most manifest violation of the principles of law, and was attended with such circumstances as render it highly improbable that it proceeded from a mere error in judgment.
From Virginia, flushed with success and elated with his triumph over Callender, the respondent hastened to Delaware. The night preceding the day on which the respondent was to hold the court, he lodged at the village of Christiana, about five miles distant from the court-house. From this place he rode into Newcastle the next morning with Dr. William McMechin, who was summoned as a grand juror to the court, and it is in evidence, was actually sworn on the panel. This is the very man, who, it is represented, gave the respondent the information relative to the seditious printer. As a grand juror it was his duty to communicate to his fellows any offences against the laws of the land which had come to his knowledge, and it was the duty of the grand jury to present every criminal act punishable by the laws of the United States. We are bound to pronounce that Mr. McMechin put the rest of the grand jury, for he was sworn so to do, in complete possession of all the information which he communicated to the respondent. With these circumstances, the respondent was perfectly well acquainted. He saw with his own eyes the very man impanelled on the inquest who had opened the budget to him, and knew it was his duty to unfold the intelligence to his brethren. The respondent proceeds to deliver an appropriate charge to the jury—a charge free from all those blemishes which stain a subsequent performance of the same kind. He presented to their view in chaste and eloquent language the proper subjects for their inquiry. In my humble opinion it may have been equalled but never excelled. I considered it, according to my poor judgment at the time, a perfect model; the most finished piece in style and substance that I ever heard addressed to a grand jury. Had he stopped here he would have been an object of praise rather than complaint. Had he been contented with discharging his official duty, he would have been entitled to our thanks, rather than merited an accusation.
The grand jury retire to their chamber, and after some time return to the box. To the credit of the then marshal of the Delaware district, I must observe, that he had manifested on that occasion, (as I know him uniformly to have done, even when the storm of party raged with the greatest violence,) in the selection of his jurors, an independence becoming the responsible station which he filled. They were not men of pliant tempers, nor were they carefully culled from the ruling sect, but chosen without respect to party, from the most respectable of both sides. It gives me great pleasure to speak of such conduct, because I wish to hold it up as an example. The grand jury were asked by the clerk in the usual form, “Have you any bills or presentments to make?” Their foreman respectfully answered they “had not.” On this, the judge could no longer bridle his temper. He had anticipated perhaps a treat from the prosecution of an obnoxious printer, and expected to regale his palate with a favorite dish. Provoked by disappointment, his passion burst into a flame, and he condescended to stoop from his bench, for the purpose of seizing on his prey. It was at this period he betrayed emotions so highly reprehensible, and so very unsuitable to the dignity of his situation. In a tone, well adapted to the exceptionable language, he observed to the grand inquest, “What! no bills or presentments?” This was matter of astonishment to him, and he proceeded to make the observations so correctly described by Mr. Read, the District Attorney of Delaware, a gentleman of irreproachable life and manners, whose character is not only unimpeached but unimpeachable, and Mr. Lea, one of the grand jury themselves, to whom part of the observations were addressed, a merchant of established reputation, and as a man respected by all who are acquainted with him. Sir, after the observations I have made on positive and negative testimony, I will not stop to demonstrate that every thing stated by Mr. Read and Mr. Lea was said, though not recollected by some other witnesses. I will barely mention that all the extra-judicial remarks of the respondent were addressed to the grand jury or to the district attorney. They must, therefore, naturally be presumed to have paid the strictest and closest attention to all that fell from the learned judge, and we have produced one of the grand inquest themselves, and the district attorney, to prove the language he used. I feel confident, under these circumstances, that implicit credit will be given to them. I am also convinced that the statement made by the respondent is scarcely more favorable to his cause. The grand jury repeat, to the interrogatory put to them by the respondent, the answer which they gave to the previous question of the clerk, and request additionally that they may be discharged, as many of them were farmers, and it was hay harvest, a very busy season with them. But no matter for that, the business of the persecution, for I will not say prosecution, must go on if possible. The judge would not discharge the grand jury on the first day, agreeably to general practice, as proved by Judge Bedford, though pressed so to do. He proceeds to give them information of the seditious temper which had manifested itself in the State, and particularly in Newcastle County: a county, which, suffer me to say, is well known from its old and unshaken patriotism from the Revolution to the present day. But he did not stop here; he proceeds to mention a seditious printer, point out the place where he lived, and the borough of Wilmington, justly celebrated for its uniform attachment to the cause of republicanism, and, according to his own answer, to specify the title of his paper, and just as his name was escaping from his lips, a returning sense of propriety checked his speech. Sensible how deeply he had committed himself already, he paused for reflection. But he had gone too far to effect a safe and honorable retreat. He calls on the district attorney to know if a file of the papers cannot be had. Some officious person offers to procure them, and the respondent directs the district attorney to examine them and lay them before the grand jury, who are ordered to attend the next morning. They do accordingly attend, the file of the papers is laid before them and examined. Behold, after all his exertions, the respondent had his labor for his pains; after all this noise and bustle montes parturiunt, and not even ridiculus mus nascitur. The grand jury return once more to the box without any bills or presentments, and the learned judge with admirable address covers his defeat.
The conduct of the learned judge at the circuit court in Maryland, furnishes, I consider, one of the strongest articles of impeachment. I had intended to have dilated very much at length on this charge, but the fatigue of yesterday has really indisposed me, and I have already trespassed too much on your time.
Every member of this Court must have been sensible of the impropriety of the respondent’s conduct on that occasion. Every reflecting man must be decidedly opposed to the idea of blending political discussion with the legal observations which ought to proceed from the bench. A party harangue little comports with the temperate and learned charges to be delivered by the president of a court. The character of an electioneering partisan, whose rostrum is a stump, or whose stage is the head of a hogshead, is utterly inconsistent and incompatible with that of a grave and upright judge. The duty of a judge is to expound the laws, and not to exercise the office of a censor over them, and much less to disgrace himself by reprobating them in a manner calculated to excite groundless alarm and apprehensions in the minds of the people, and to alienate their affections from the Government. Every man in his individual capacity possesses the undoubted right to advocate the political principles which he believes most beneficial to his country. The respondent as an individual is entitled to this privilege in common with his fellow-citizens, and to the free exercise of his splendid talents in such a case. But does this justify him as a judge in his judicial character, and from the judgment seat, to preach political sermons, and impose his private dogmas on the people, under the garb of administering the laws? Sophistry may for a moment confound two things perfectly distinct in their nature and effect, but the mist vanishes before the light of argument.
It will be conceded that there yet exist State jealousies against the General Government, the acts of which are closely watched and scrutinized. When the Constitution of the United States was framed, it was the legitimate offspring of a liberal spirit of accommodation, which reconciled jarring interests, discordia semina rerum. It requires the patriotic exertion of every good man to preserve and to promote a reciprocal cordiality between the General and State Governments. The officers particularly of each should manifest a respect and reverence which would inspire at once confidence and attachment. What language can express the criminality of the respondent, when from the bench of the United States he undertook to thunder anathemas against the act of the Legislature of an individual State? Was this a part of his duty, or was it not? Can there be a doubt, sir, but that it was a gross violation of his duty, and that the respondent well knew it at the time? Yet such were his unbridled passions and his uncontrolled prejudices, that, regardless of the station which he held, and the dignified post which he occupied, he did not hesitate to commit the character of the United States by conduct which must have irritated the audience against the government of Maryland and its officers. If ever a mobocracy take place in this country, it will be brought about by such instruments and such conduct. Let those clothed with the laws become the violators of them, let the judges of the United States issue fulminations against the measures of individual States, and the judges of the different States retaliate, by declaiming against the acts of the General Government, and the consequences are easily foreseen.
When a poor miserable object like Callender, without character and without influence, censures the measures of our Administration, or reprobates an unconstitutional law, the respondent considered him guilty of a crime and deserving of punishment. But a man elevated to the bench may declaim in the strongest language against any measure or law of the United States, or of an individual State with perfect impunity! Recollect, sir, that if the defendant be justified in reprobating a single law of the United States, he has the right to reprobate them all indiscriminately. It is without question the duty of a judge to inculcate a respect and a reverence for the laws of the land. But, sir, the respondent, so far as he was able, has endeavored to excite the indignation of the people against them, and to terrify them into an opposition to measures which he has chosen from the bench to denounce, by the dread of a mobocracy and other alarming stories unworthy the columns of a common newspaper, and scarcely equalled since the days of the Rye House, and of Titus Oates.