But alas for Chase! He had committed another grave offense—he had called William Wirt "young gentleman" in spite of the fact that Wirt was actually thirty years old and a widower. Perhaps Chase did not know "of these circumstances"; still, "if he had, considering that Mr. Wirt was a widower, he certainly erred on the right side ... in calling him a young gentleman."[545]
When the laughter of the Senate had subsided, Martin, dropping his sarcasm, once more emphasized the vital necessity of the independence of the Judiciary. "We boast" that ours is a "government of laws. But how can it be such, unless the laws, while they exist, are sacredly and impartially, without regard to popularity, carried into execution?" Only independent judges can do this. "Our property, our liberty, our lives, can only be protected and secured by such judges. With this honorable Court it remains, whether we shall have such judges!"[546]
Martin spoke until five o'clock without food or any sustenance, "except two glasses of wine and water"; he said he had not even breakfasted that morning, and asked permission to finish his argument next day.
When he resumed, he dwelt on the liberty of the press which Chase's application of the Sedition Law to Callender's libel was said to have violated. "My honorable client with many other respectable characters ... considered it [that law] as a wholesome and necessary restraint" upon the licentiousness of the press.[547] Martin then quoted with telling effect from Franklin's denunciation of newspapers.[548] "Franklin, himself a printer," had been "as great an advocate for the liberty of the press, as any reasonable man ought to be"; yet he had "declared that unless the slander and calumny of the press is restrained by some other law, it will be restrained by club law." Was not that true?
If men cannot be protected by the courts against "base calumniators, they will become their own avengers. And to the bludgeon, the sword or the pistol, they will resort for that purpose." Yet Chase stood impeached for having, as a judge, enforced the law against the author of "one of the most flagitious libels ever published in America."[549]
Throughout his address Martin mingled humor with logic, eloquence with learning.[550] Granted, he said, that Chase had used the word "damned" in his desultory conversation with Triplett during their journey in a stage. "However it may sound elsewhere in the United States, I cannot apprehend it will be considered very offensive, even from the mouth of a judge on this side of the Susquehanna;—to the southward of that river it is in familiar use ... supplying frequently the place of the word 'very' ... connected with subjects the most pleasing; thus we say indiscriminately a very good or a damned good bottle of wine, a damned good dinner, or a damned clever fellow."[551]
Martin's great speech deeply impressed the Senate with the ideas that Chase was a wronged man, that the integrity of the whole National Judicial establishment was in peril, and that impeachment was being used as a partisan method of placing the National Bench under the rod of a political party. And all this was true.
Robert Goodloe Harper closed for the defense. He was intolerably verbose, but made a good argument, well supported by precedents. In citing the example which Randolph had given as a good cause for impeachment—the refusal of a judge to hold court—Harper came near, however, making a fatal admission. This, said Harper, would justify impeachment, although perhaps not an indictment. Most of his speech was a repetition of points already made by Hopkinson, Key, and Martin. But Harper's remarks on Chase's charge to the Baltimore grand jury were new, that article having been left to him.
"Is it not lawful," he asked, "for an aged patriot of the Revolution to warn his fellow-citizens of dangers, by which he supposes their liberties and happiness to be threatened?" That was all that Chase's speech from the bench in Baltimore amounted to. Did his office take from a judge "the liberty of speech which belongs to every citizen"? Judges often made political speeches on the stump—"What law forbids [them] to exercise these rights by a charge from the bench?" That practice had "been sanctioned by the custom of this country from the beginning of the Revolution to this day."
Harper cited many instances of the delivery by judges of political charges to grand juries, beginning with the famous appeal to the people to fight for independence from British rule, made in a charge to a South Carolina grand jury in 1776.[552]