Wednesday, February 27.
Mr. Randolph.—Mr. President: The course which has been pursued by my learned colleagues and right excellent friends leaves but a barren field in which to glean after them. I shall, therefore, present you with the most condensed view that I can take of the subject, endeavoring, as far as possible, to avoid the ground which has been already trodden; and should I fail in this attempt, I hope to be pardoned, as having been absent during a great part of this discussion. Very far indeed is it from my intention, by tiresome repetitions, yet more to weary the patience of the Court, and prolong that decision which is anxiously awaited by all. I was not present when the defence was opened, in a style so honorable to himself, by the junior counsel of the respondent, (Mr. Hopkinson.) I was then ill abed. I regret the loss of the very able argument which he is said to have urged against the first article. God forbid that the time shall ever come with me when merit shall be disparaged because found in an adversary. Report speaks fairly of the gentleman’s performance, and I am willing to credit her to the utmost extent.
Suffer me to say a few words on the general doctrine of impeachment, on which the wildest opinions have been advanced—unsupported by the constitution, inconsistent with reason, and at war with each other. It has been contended that an offence, to be impeachable, must be indictable. For what then I pray you was it that this provision of impeachment found its way into the constitution? Could it not have said, at once, that any civil officer of the United States, convicted on an indictment, should (ipso facto) be removed from office? This would be coming at the thing by a short and obvious way. If the constitution did not contemplate a distinction between an impeachable and an indictable offence, whence this cumbrous and expensive process, which has cost us so much labor, and so much anxiety to the nation? Whence this idle parade, this wanton waste of time and treasure, when the ready intervention of a court and jury alone was wanting to rectify the evil? In addition to the instances adduced by my right worthy friend, (Mr. Nicholson,) who first addressed the Court yesterday, permit me to cite a few others by way of illustration. The President of the United States has a qualified negative on all bills passed by the two Houses of Congress, that he may arrest the passage of a law framed in a moment of legislative delirium. Let us suppose it exercised, indiscriminately, on every act presented for his acceptance. This surely would be an abuse of his constitutional power, richly deserving impeachment; and yet no man will pretend to say it is an indictable offence. The President is authorized by the constitution to return any bill presented for his approbation, not exceeding ten days, Sundays excepted, within which period he may return it to the House wherein it originated, stating his reasons for disapproving it. Now let us suppose that, at a session like the present, which must necessarily terminate on the third of March, (and that day falls this year on a Sunday,) the President should keep back until the last hour of an expiring Congress, every bill offered to him for signature during the ten preceding days, (and these are always the greater part of the laws passed at any session of the Legislature,) and should then return them, stating his objections, whether good or bad is altogether immaterial. It is true that a vote of two-thirds of each branch may enact a law in despite of Executive opposition; but, in the case I have stated, it would be physically impossible for Congress to exercise its constitutional power. Indeed, over the bills presented to the President within nine days preceding its dissolution, the Legislature might be deprived of even the shadow of control, since the Executive is not bound to make any return of them whatever. Now, I ask whether such misconduct in the President be an indictable offence? And yet is there a man who hears me who will deny that it would be a flagrant abuse, under pretence of exercise of his constitutional authority, for which he ought to be impeached, removed, and disqualified? Sir, this doctrine, that impeachable and indictable are convertible terms, is almost too absurd for argument. Nothing but the high authority by which it is urged, and the dignified theatre where it is advanced, could induce me to treat it seriously. Strip it of technical jargon, and what is it but a monstrous pretension that the officers of Government, so long as they steer clear of your penal statutes—so long as they keep without the letter of the law—may, to the whole length of the tether of the constitution, abuse that power, which they are bound to exercise with a sound discretion, and under a high responsibility for the general good?
Mr. President, through every stage of this transaction you perceive every symptom of guilt—trepidation, remorse, and self-abasement. Look at the consultation at Rawle’s, who was followed home by the judges as soon as the Court rose. Recollect the conversation which ensued, and the conduct of the Court on the following day, when the respondent is said to have atoned for his misbehavior; although, in the same breath, you are told there was no offence to expiate. Do you recognize in that procedure an honorable and manly acknowledgment of unintentional error, which, from a sense of justice, the respondent was anxious to rectify? Or do you behold the sullen perverseness of guilt, half ashamed to confess its offences, yet trembling at their consequences?—now soothing, now threatening its adversary—every characteristic of conscious crime? Sir, I blush for the picture which the gentleman has drawn of his client; and I ask you, Mr. President, if such a character is fit to preside in a court of justice?—a man whose violent temper and arbitrary disposition perpetually drives him into acts of tyranny and usurpation, from which, when vigorously opposed, he must disgracefully recede; equally ready to take an untenable position, or meanly to abandon it. To-day, haughty, violent, imperious; to-morrow, humble, penitent, and submissive; prostrating the dignity of his awful function at the feet of an advocate, over whom, but the day before, he had attempted to domineer. Is this a character to dispense law and justice to this nation? No, sir! It demands men of far different stamp—firm, indeed, but temperate; mild, though unyielding; neither a blustering bravo, nor a timid poltroon. I speak not of private character; with it I have nothing to do. It is the official conduct only that concerns me. I have no hesitation in saying that such men are not fit to preside in your judiciary; and that the greatest abilities, when joined to such tempers, serve but still more to disqualify their possessors.
I must here reiterate my regret at losing the argument of the gentleman who opened the defence. I understand him to have said, (speaking of Fries,) “Could that man be ‘innocent,’ who had been twice convicted of treason? Could he be ‘illiterate,’ who pretended to expound the constitution? Could he be ‘friendless,’ who had arrayed his numerous followers in opposition to the laws of his country?” Sir, this is a very pretty specimen of antithesis; but, unfortunately for itself, it proves too much, whilst, as to the question before the Court, it proves nothing. Does the gentleman believe the London mob, in 1780, to have been among the most influential men in England? or, because their discontents grew out of religion, that they were more deeply read in canon law than any other body of men in that kingdom? They far surpassed the Northampton rioters in depth and intricacy of research. They undertook to expound the Constitution of the Church of England. But, unfortunately for this gentleman, the guilt or innocence of his honorable client is in nowise affected by the guilt or innocence of this poor German and his comrades. The respondent stands charged with a departure from the principles of the constitution and the established forms of law, in conducting the trial which was to ascertain the guilt or innocence of John Fries. What has this to do with his character? How does that affect the question? Guilty or innocent, he was entitled to a fair and impartial trial, according to the known usage and forms of law; for, be it remembered in such cases, form is substance. It is the denial of this sacred right, which the constitution equally secures to the most hardened offender as to persecuted virtue—this daring outrage on the free principles of our criminal jurisprudence, that constitutes the respondent’s crime. If Fries was innocent, what language can sufficiently reprobate the conduct of the judge? An innocent man, by his procurement, iniquitously consigned to an ignominious death. If guilty, he ought to have expiated his guilt upon a gibbet. But what was the fact? The President of the United States, in consequence of the arbitrary and unprecedented conduct of the Court, was, in a manner, compelled to pardon him. The public mind would never have brooked the execution of any man thus tried and condemned. By the misdemeanor of the respondent, then, to rescue the administration of justice from the foulest imputation, to make some atonement for the offended majesty of the constitution, the Executive was reduced to the necessity of turning loose upon the country, again to sow the seeds of disaffection and revolt, a man represented by the adverse counsel to be every way desperate and daring—a traitor and a rebel. Upon what other principle, sir, can you account for the President’s application to the prisoner’s counsel, and his subsequent pardon? I repeat, Mr. President, that it is wholly immaterial to the question before you, whether John Fries was or was not a traitor. Either alternative is fatal to the respondent. He is charged with oppression and injustice on the trial, and you have not only the clearest testimony of the fact, but it is in proof before you that such was the President’s motive in issuing the pardon. He must have believed that the sentence was in itself unjust, (which serves but to aggravate the respondent’s guilt,) or he must have acted (as I am unwilling to concede he appears to have done) on the ground that, however deserving of punishment, the prisoner had been unfairly tried, and his condemnation illegally obtained. Whichsoever of these positions be true, the defence set up on behalf of the respondent is false. What have you seen? A man condemned to death, unheard, by a prejudiced jury and an unrighteous judge, thirsting for his blood; the Executive demanding to hear that defence, to which the Court would not listen, and extending the arm of its protection to snatch the victim from the oppressor’s grasp. And will you now turn this man loose upon society, armed with the terrors of the law and secure in impunity, to perpetrate similar offences?
But our opponents have not only resorted to the practice in civil cases, which here is totally inapplicable, but they have brought forward English precedents before the Revolution, and decisions of the court of Star Chamber! Precedents drawn from the worst periods of their history, from hard, unconstitutional times—decisions from the most flagitious tribunals, whose very name has passed into a proverb of corrupt, unfeeling tyranny. For an account of this Star Chamber I would refer you to John, Lord Somers, of whom it has been said, not with more elegance than justice, that, “like a chapel in a palace, he alone remained unpolluted, whilst all around was profanation and uproar.”
“We had a privy council in England (says this great constitutional lawyer) with great and mixed powers; we suffered under it long and much. All the rolls of Parliament are full of complaints and remedies; but none of them effectual till Charles the First’s time. The Star Chamber was but a spawn of our council, and was called so only because it sat in the usual council chamber. It was set up as a formal court in the third year of Henry VIII., in very soft words, ‘to punish great riots, to restrain offenders too big for ordinary justice; or, in modern phrase, to preserve the peace.’ ‘But in a little time it made the nation tremble. The privy council came at last to make laws by proclamation, and the Star Chamber ruined those that would not obey. At last they fell together.’” (Hatsell’s Precedents, vol. 4, page 65, Note.) Is this the court whose adjudications are to justify the decisions of an American tribunal in the nineteenth century? And in a case of treason, too? Is this vile and detestable tribunal (whose decisions, even in England, are scarce suffered to be drawn into precedent) to furnish rules of conduct for the courts of this great confederate Republic? Yes, sir, you have not only been obliged to listen to Star Chamber doctrines, but you have been referred to one most arbitrary magistrate to justify the oppressions of another. I allude to Chief Justice Keelyng. Who he was may be seen in the same volume of Hatsell, page 113.
“On the 16th of October, 1667, the House being informed, ‘that there have been some innovations of late in trials of men for their lives and deaths;’ [the very offences charged upon the respondent;] ‘and in some particular cases restraints have been put upon juries, in the inquiries’—this matter is referred to a committee. On the 18th of November, this committee are empowered to receive information against the Lord Chief Justice Keelyng, for any other misdemeanors besides those concerning juries. And on the 11th of December, 1667, this committee report several resolutions against the Lord Chief Justice Keelyng, of illegal and arbitrary proceedings in his office.” The first of these resolutions is: “That the proceedings of the Lord Chief Justice, in the cases now reported are innovations in the trial of men for their lives and liberties: and that he hath used an arbitrary and illegal power, which is of dangerous consequence to the lives and liberties of the people of England, and tends to the introducing of an arbitrary government.” The respondent’s own case. The second resolution is, “that in the place of judicature”—[how does this bear upon the eighth article?] “the Lord Chief Justice hath undervalued, vilified, and contemned Magna Charta, the great preserver of our lives, freedom, and property.” And the authority of this infamous judge, the minion of Charles II.,—of judges in the most corrupt period of English history, from the restoration of that king to the revolution, is relied upon by his counsel to absolve the respondent from guilt. Permit me to do their client more justice. I do believe that the man who is held up here as a revolutionary patriot, of 1776, although in a moment of human infirmity he hath imitated their crimes, would blush to be justified by their example. For his sake I rejoice in that visitation of God which hath saved him this last degradation: from seeing his defence rested upon the authority of those infamous times, and yet more infamous men, with whom, with all his weakness and all his infirmities upon him, he would yet (I am persuaded) disdain a comparison. Yes, I do feel relieved that he hath been spared the disgraceful spectacle of beholding himself defended by his friends on principles more unjust and iniquitous, if possible, than have ever been imputed to him by his enemies: that he hath not been reduced to see those very decisions, prior to the revolution, cited in his defence, which he himself denied to a fellow-creature put in jeopardy of life! The benefit of these decisions (it seems) can be taken only by the powerful oppressor—they offer no shelter to his victim. I thank God, sir, that I have indeed studied at the feet of far different Gamaliels from the honorable Attorney-General of Maryland, or those by whom, it would appear, he has been brought up; that I have drawn my notions of justice and constitutional law from a far different source—not from the tribunals of Harry VIII., nor the tools and parasites of the house of Stuart, but from the principles, the history, and the lives of those illustrious patriots and their disciples, who brought the Star Chamber to ruin, and its abettors to the block.
But I cannot consider the able Attorney-General of Maryland quite sincere in the doctrine which he has advanced. He shines indeed a luminary in this defence. Mr. President, there is an obliquity in human nature that too often disposes us rather to applaud the brilliant, though pernicious ingenuity that can “make the worse appear the better reason,” than the humble but useful efforts of a mind engaged in an honest search after truth. There is something fascinating in such a display of the powers of the human mind. The vanity of the whole species soothes itself with the excellence of an individual. We yield to the illusions of self-love—“we lay the flattering unction to our souls”—and are cheated and abused. It is under this perverse bias of our nature that I render to the honorable Attorney-General of Maryland the willing tribute of my admiration. But, he will pardon me, I cannot suppose him serious. I will not do him the injustice to believe that to a noble motive, to long habits of political and social intercourse, a friendship of thirty years’ standing, he has refused what he himself tells you is done, every day, nay in nine hundred and ninety-nine cases in a thousand, by persons of his profession, for a mercenary consideration. What has he said? “That, in defence of their clients, lawyers are in the daily habit of laying down as law what they know not to be law.” Mr. President, when I see a man of his unrivalled resources reduced to the miserable shift of Star Chamber doctrines and precedents before the revolution—and, conscious, no doubt, of the actual weakness of his defence, calling to his aid all the force of wit, ingenuity, repartee, pleasantry, and good humor, what inference must I draw? and what must be the conclusion of this honorable Court?
On the subject of Mr. Taylor’s testimony, its rejection is attempted to be defended by a solitary precedent, in a civil case, drawn from a reporter, who, I am informed by gentlemen of the first professional character, is far from being considered as very good authority. I mean McNally. In support of this article I might urge as well the admissions of the honorable Attorney-General of Maryland, as the universal practice of our courts. What said Mr. Robertson—and what said the Chief Justice of the United States, on whose evidence I specially rely? He never knew such a case occur before. He never heard a similar objection advanced by any court, until that instance. And this is the cautious and guarded language of a man placed in the delicate situation of being compelled to give testimony against a brother judge. What more could you expect from a person thus circumstanced? What does it prove but that the respondent was the first man to raise, to invent such an objection to a witness? Can any one doubt Mr. Marshall’s thorough acquaintance with our laws? Can it be pretended that any man is better versed in their theory or practice? And yet in all his extensive reading, in his long and extensive practice, in the many trials of which he has been spectator, and the yet greater number at which he has assisted, he had never witnessed such a case. It was reserved for the respondent to exhibit, for the first, and I trust, for the last time, this fatal novelty, this new and horrible doctrine that threatens at one blow all that is valuable in our criminal jurisprudence.
Against the fourth article the Attorney-General of Maryland hath adduced a similar and doubtful authority, in defence of his client. And here again I bottom myself upon the testimony of the same great man, yet more illustrious for his abilities than for the high station that he fills, eminent as it is. He declares that he has never known a similar requisition made by any court; that where the propriety of questions verbally propounded, has been denied, or for the sake of precision, (where they were intricate,) they have been reduced to writing, at the request or order of the Court; but in the first instance, and before they had been stated verbally, never, within the compass of his experience. And what inference can any candid, unprejudiced mind draw from these repeated, and, until then, unprecedented acts of interference by the judge, on behalf of the prosecution, but that, instead of an umpire, he was a partisan?
With regard to his deportment toward the counsel, I shall call the attention of the Court not to the statement made by themselves—because I question it in the slightest degree? God forbid—I know those able and honorable men too well—but because I would deprive our opponents of their almost sole argument—the personal irritation which they allege those witnesses must have felt. Waiving then any remarks on their testimony, powerful as it is, I again ask you, what said the Chief Justice? And, if I may say so, what did he look? He felt all the delicacy of his situation, and as he could not approve, he declined giving any opinion on the demeanor of his associate. What does Mr. Robertson say? In substance, every thing that has been deposed by other witnesses: “That the judge always spoke in the first person singular.” And here I will remark, that the short hand report which this gentleman made of the trial, and which he has given in evidence, was published, in the first instance, as a defence of Mr. Chase against alleged misrepresentations of his conduct on that occasion. It cannot be considered, therefore, as an unfavorable view of the transaction, at least so far as the respondent is concerned. What says Mr. Gooch? That the judge was very ‘yearnest’ with the counsel; that they were much abashed; that he set them down; that they appeared alternately red and pale; that he exhibited their confusion to the mirth of all the bystanders: and Colonel Taylor tells you, “that the conduct of the judge had the full effect it seemed intended to produce—to abash the counsel for the prisoner, and turn them into ridicule, for that every body laughed but themselves.”
But the ingenious Attorney-General of Maryland, whose fruitful invention is never without resource, has endeavored to persuade you, that this conduct was not merely justifiable, but even meritorious. That the design of the counsel was to irritate and inflame the people; and the respondent, dreading a riot, had no object but to keep the audience in a good humor; and that, by a seasonable exertion of his acknowledged wit and pleasantry, he completely succeeded in turning their weapons upon themselves, and totally defeated their purpose. This apology reflects credit on the inventive faculty of him who makes it, and yet what is it but an admission of the charge? Look to the evidence. You will see nothing to support the twist which has been attempted to be given to it—no apprehension of disorder and confusion but what grew out of the insufferable tyranny and insolence of the judge. Where was the respondent at this time? In some obscure corner of the Union—some remote district notorious for disaffection, infamous for its spirit of insurrection, far removed from the protection of State or Federal authority? No, sir, he was in the enlightened capital of Virginia, a country never disgraced by rebellion—unless the epithet be applied by some squeamish politician to our glorious revolutionary struggle—a State whose soil has never been stained by insubordination to law. No, sir, he was sitting within a stone’s throw of the residence of the Governor of Virginia, a man of whom I shall say nothing. Let the exalted stations he has more than filled, the high public trusts on which he has seemed rather to confer honor than receive it, his unshaken constancy in the worst of times, the dismay and confusion of his enemies, whose vain aspersions have passed him like the idle wind—let the confidence of a united people speak his eulogium. The respondent was sitting within musket-shot of a cantonment of Federal troops. Why were these troops placed there at that time, and why were they kept there for some time afterwards, belongs not to my present purpose. It is enough to say that they were a part of our famous provisional army—“fruges consumere nati”—to ascertain their readiness to protect, in any outrage on the law or constitution, (then practised, or meditated,) the government that maintained them in dissolute idleness. Governor Monroe was more interested in the respondent’s safety than he himself appears to have been. He trembled lest the indignation of the people should get the better of their good sense, and hurry them into some act of violence, that would cast an odium on the State, and afford matter of triumph to her enemies. That the respondent’s object was to goad her citizens to some outrage, which might justify the humiliation that was preparing for her, there is too much reason to believe, and that he would have succeeded, but for the intervention and influence of that excellent man, and the persuasions of the counsel themselves, whom the Attorney-General of Maryland would represent as endeavoring to excite public commotion, that he may find some shelter for the enormities of his client.
But our doctrine, it is said, goes to prostrate the rights of the accused—where?—at the feet of juries. There may they for ever lie, but never at the foot of a judge. The gentleman from South Carolina (I beg his pardon) deprecates the placing of criminal law solely in the power of juries. He would not have the life of a man depend on their decision of a point of law. But it is the glorious attribute of jury trial, that the question of guilty or not guilty, involving both law and fact, that law as well as that fact the jury alone is competent to determine. It is the necessary consequence of the general verdict which they are required to find. The very able and learned Attorney-General of Maryland indeed says that this is an incidental power, rather than a right of the jury. But, sir, what is that power which no man may question, but a right? For, whether incidental or direct, the exercise of it is final and complete, if in favor of the accused; and the power of the Court to award him a new trial is further protection to the prisoner against abuse. There is no specific power given, in so many words, by the constitution, to Congress, to punish robberies of the mail; but it is incidental to the right of establishing post offices and post roads, and necessary to carry the specified power into effect. This curious distinction between “right and power, direct and incidental,” is an ignis fatuus of the learned gentleman’s composition to bewilder and mislead us from our object, that we may be lost and led astray over a wide moor of absurdities. The right of the jury is not the less, whether immediate, or derivative; as Congress possess the power to pass all laws necessary to carry any delegated power into effect, in like manner juries possess every power necessary to the general verdict which they have a right to give. The violation on the part of the judge of the incidental power, as much subjects him to punishment, as if he had invaded the original right over the fact, to which it is appendant. What would he say to a robber of the mail claiming impunity because the power to make the offence penal was incidental, and not specified in the constitution? But, say gentlemen, we admit the power in the jury, we only deny the right: and in this tissue of self-contradictions they declare, that whilst a jury is bound by the exposition of the law, as laid down by the Court, yet they have not the right to determine whether the facts come within the law. Can there be a greater absurdity?
“Whilst the jury have no right to decide the law, they must decide whether the facts come within the law!” If the jury is tied down by the Court’s construction of the law, is it not plain that they do not decide whether the fact is, or is not, embraced by the law? but that whilst they find naked fact, it is the Court that decides whether that fact does, or does not, come within the law? Gracious God! is it come to this? Are the great principles for which our forefathers contended, and many of yourselves have bled, now to be frittered away by technical sophistry? Is the same doctrine to be established here in capital offences—in cases of treason—that Lord Mansfield attempted to impose on the people of England as the law of libel, and which they would not endure? Shall principles of criminal law which they have scouted, even in cases not capital, be established here for the decision of capital offences? that whilst the jury finds the facts, their application to the law shall depend solely on the will of the Court? I deny the gentleman’s law; and assert that, as an American citizen, I would refuse to be bound by it. A man is charged with having committed certain treasonable acts. The constitution has defined treason to consist “in levying war against the United States, or in adhering to their enemies, giving them aid and comfort.” But the Court, assuming to themselves a more than Papal infallibility—the exclusive exposition and construction of the constitution—tell me, as a juror, to surrender into their hands my conscience and my understanding; that, as a levying of war is treason, so is the picking up of a pin a levying of war; that I, an unlearned layman, must not presume to expound the holy scripture of the constitution, but must leave that to the elect; and, if the fact of his having picked up the pin be proved to my satisfaction, I am bound to find the prisoner guilty of levying war against his country—to convict him of treason. Sir, the parallel runs on all-fours; for there is nothing to uphold this monstrous judicial assumption, but that which supported the pretensions of the Roman Pontiff—the willing obedience of ignorant superstition. If the jury is contumacious, if, whilst they confess their entire conviction of the truth of the fact charged in the indictment, they deny the legal doctrine and acquit the prisoner, the Court is without redress. They may bully and look big—there is no help. Put the case of murder. A killing with malice aforethought is charged upon the prisoner—there is no dispute about facts—it is admitted that the party arraigned did kill the deceased. Shall I, a juror, contenting myself with deciding a fact that nobody disputes, surrender to the Court the question of law, should they attempt to usurp it, (as that killing with a particular weapon is a killing with malice prepense,) and find a man guilty of murder whom I believe to have acted in self-defence?—in defence of life, or, what is dearer than life, of reputation? No, sir; I will not find him guilty, although all the courts in the universe should instruct me to do so. I will look to the great precept, “do as you would be done by,” and say, “I would have done so too, and, therefore, I will not say, that man ought not so to have done.” And what is there, sir, in the words, “levying of war” more unintelligible than in the words, “malice prepense?” The first, being altogether a matter of fact, would appear more exclusively the province of the jury than the last, which rather partakes of a question of opinion. If you leave the law in criminal cases to the jury, (as well as the fact,) you are safe; but if your decision should sanction the opposite doctrine, you set all our liberties, fixed by the decisions of ages, afloat on an ocean of uncertainty and contention. We have no beacon, no compass, no polar star to direct our course. If you suffer the rights of a jury to be thus invaded on a criminal trial—on a trial for life and death—you bind us in conclusions more fatal than those of the Church of Rome. You force us one moment to say whether such a fact amounts to such a crime, and, the next, you will not permit us to know what the crime is. I hope the marshal will never summon me on such a jury. I give him warning; I will never surrender the constitution, my understanding, and my oath to the “grim gribber” of a court of law. I should consider myself as much entitled to decide the law for the judge in a civil case, as bound by his decision of it in a criminal one. Vain and futile is the attempt of the constitution to settle and define treason, if that definition is to mean any thing or nothing at the option of a corrupt judge. If this doctrine, sir, be denied by any member of this honorable Court, let him, in his legislative capacity, move for a bill “to render juries more obedient to the judges, and especially in criminal cases.” Until that is done, I shall refuse obedience to their dictates, and act as a juror upon the principles which I have avowed.
Mr. President, much as I regret the trespass that I have already committed on your patience, I must (painful as it may be to you, and it is not less so to myself) attempt something like a review of the conduct of this judge. In May, 1800, you find him in Philadelphia, engaged in propagating and establishing the detestable doctrine of constructive and implied treason, which, in England, has proved the dreadful engine of persecution and murder. From thence you trace him to Annapolis; (not by the blood of John Fries—no thanks, however, to him for that;) you hear his declaration in presence of Mr. Mason. But this, his counsel tell you, was all a joke, nothing but humor, sir; like his conduct at Richmond. If you listen to them, you must become a Pythagorean, and believe that the soul of Yorick himself has transmigrated into the body of this judge. It is true he could not be the king’s jester, because, unfortunately, we have no king, we have not yet reached that stage of civilization; but, sir, he is the jester of the sovereign people, a jester at your laws and constitution, and it is for you to say whether he shall continue to exercise his function. This jocular conversation is likely to prove a bitter and biting jest to the respondent. So serious did that most intelligent and respectable witness deem it to be, that he locked it up in his own bosom, without venturing to mention it to any human being. He did not consider himself authorized to play with the fame of the respondent, however disposed he might be to sport with the feelings and rights of others. This merry fit lasted a long time. He indulges the same humor in the stage with Mr. Triplett, an entire stranger; and here let me observe, in justice to this gentleman, that never did any man deliver a more clear and unimpeachable testimony in a court of justice than this witness. It is conclusive. When the judge made personal declarations against Callender, could he be said to administer justice without respect to persons? But, sir, one of our adversaries (Mr. Harper) protests against this sort of evidence, and deems it highly inadmissible. Why? Because, forsooth, it violates the sanctity of private conversation, and wounds the feelings of gentlemen who may be called on as witnesses. Thank God! sir, we live in a country where the law is open to all, and knows no distinction between gentlemen and simple-men. No man, I trust, has a greater respect for the real gentleman than myself. When Francis I., the accomplished monarch of the most gallant people of Europe, deemed it his first distinction to be ranked as the first gentleman of his kingdom, he did not hold that sacred character in higher reverence than I do. But the respondent himself has told you that a court of justice is a coarse sort of thing, blind to these nice discriminations; that the polished address of a Chesterfield, and the rugged scowl of a Thurlow, in the eye of the law are equal. Suppose a person killed, will not the Court hear evidence of a previous declaration by the prisoner, of ill-will to the deceased, as “that he would be the death of him,” &c.? or, will they stop to ask whether it was uttered in a tippling-house, or a drawing-room; by a ruffian in rags, or in ermine? and yet we are accused of lying in wait for the respondent, of watching his unguarded and convivial hours, of wounding the nerve of social intercourse to the quick. We are ministers of justice, and as such, we know nothing of these delicate distresses, equally unknown to our forefathers, to the framers of our free and manly institutions. Their composition was of sterner stuff than this modern, flimsy, fashionable ware. To their robust constitutions and strong common-sense, these qualmish megrims, these sickly sensibilities of modern refinement were happily unknown.
Follow the respondent, then, with the steady and untired step of justice, from Philadelphia to Annapolis, from Annapolis to Richmond, and back again to Newcastle. You see a succession of crimes each treading on the heel, galling the kibe of the other—so connected in time, and place, and circumstance, and so illustrated by his own confessions, as to leave no shadow of doubt as to his guilt. You are to take the facts, not, as his counsel would have you, isolated and dismembered, but embodied; a series of acts indissolubly linked together, each supporting, each animated by the vital principle of guilt that pervades and gives life to the whole. God hath joined them; no man shall or can put them asunder. Carry your mind back to the state of things in 1800; then advert to the testimony in the case of Fries. Lewis, Dallas, Tilghman, and even Rawle, declaring that they had never witnessed such a proceeding before; pronouncing the conduct of the judge, on that occasion, to be altogether novel in the annals of our criminal jurisprudence. The same spirit pervades his whole career. But you are warned by the counsel (Mr. Harper) not to tarnish the laurels of your political victory by an unmanly triumph over a fallen adversary. He implores the tribute of a sigh for the mournful yew and funeral cypress that bedecks the hearse of his political reputation. Dreading the decision of your judgment, your sympathies are enlisted for his client. An aged patriot, whose head is whitened with the hoar of threescore and ten years, is presented to your afflicted imaginations: broken with disease, compelled to employ his few and short intervals from pain and sickness, to spend the last moments of a life devoted to a thankless country’s service, in defending himself against a criminal prosecution. Do we thirst for his blood? yet, even there, English authorities would bear us out. Do we seek to lead him to Tower Hill? If his heart will fly in his face, is it we who cast it there? Do we even ask his disfranchisement? No, sir, we only demand the removal of a man, whom the very suspicion of such crimes unfits for the high station which he fills. A man bent with age and infirmity, struggling with misfortune, is a venerable object, entitled to your sympathy, even although he were not a patriot. Mine shall never be denied to such a character. But, sir, mark the difference between Samuel Chase, powerful and protected, and John Fries, feeble and oppressed. Look at the one lodged in a sumptuous hotel, partaking of the best cheer, surrounded and supported by every comfort of life, by a large and respectable circle of friends, indulged with ample time for his defence, assisted by counsel second to none in the land, unrestricted in the conduct of their cause. When I give a man so situated my sympathy, it is not of so jejune a cast as to refuse itself to the victim of his injustice—a hardy yeoman wrestling with indigence and persecution—selling his last bit of property to support a long imprisonment and meet the expenses of this very prosecution; a soldier of the Revolution, with whom the words “stamp act” and “window tax” were synonymous with slavery; who, in a moment of political delirium, perhaps of intoxication, had instinctively raised his hand against what he deemed an oppressive tax—immured in a dungeon, listening only to the clanking of fetters; snatched from the bosom of his family, to whom no doubt he was a kind parent and an affectionate husband—for be it remembered he was popular and beloved among his neighbors—this man, caught in the trap of judicial and constructive treason, at which common sense revolts, laid by the heels, trembling at the charge, ignorant of the extent of the law, without a friend to comfort and console him, no counsel in his defence; such a man, so situated, is as much entitled to my sympathy as any king that ever wore a crown, and he shall have it; he shall have more, he shall have justice from this honorable Court. Yes, sir, to my shame I confess, that my sympathy is not of this exclusive sort. It is not scared by the homely garb of poverty and wretchedness. It can feel for misfortune, even if it be not sumptuously arrayed.
We are asked to assign any rational motive for the conduct imputed to the respondent. His object might have been to court the Administration which he upheld and supported, to recommend himself to the President of the United States, to obtain the Chief Justiceship. Those who are anxious to attract the notice and favor of the powers that be, are not apt to put their light under a bushel. The fulsomeness of sycophants, who always overact their part, is proverbial. Sir, he might be aspiring to the Presidency itself, and anxious to engage the favor of the leaders of his party. Let it be remembered, the triumph of that day was complete, and the reckoning of this day too remote from probability to be taken into the account. Here, sir, you have a key to his whole conduct. It becomes you, then, Mr. President and gentlemen of the Senate, to determine whether a man whose whole judicial life hath been marked by habitual outrage upon decorum and duty, too inveterate to give the least hope of reformation, interwoven and incorporated with his very nature, shall be arrested in his career, or again let loose upon society, to prey upon the property, liberty, and life of those who will not rally around his political standard. We have performed our duty; we have bound the criminal and dragged him to your altar. The nation expects from you that award which the evidence and the law requires. It remains for you to say whether he shall again become the scourge of an exasperated people, or whether he shall stand as a landmark and a beacon to the present generation, and a warning to the future, that no talents, however great, no age, however venerable, no character, however sacred, no connections, however influential, shall save that man from the justice of his country, who prostitutes the best gifts of nature and of God, and the power with which he is invested for the general good, to the low purposes of an electioneering partisan. We adjure you, on behalf of the House of Representatives and of all the people of the United States, to exorcise from our courts the baleful spirit of party, to give an awful memento to our judges. In the name of the nation, I demand at your hands the award of justice and of law.