When Court reconvened on Saturday morning, August 29, Mr. Martin resumed his argument. Here he gave his attention to the opinion in the case of Bollman and Swartwout. He brought out that when the opinion was given only four of the seven judges of the Supreme Court were sitting. Would four judges in an extrajudicial manner have undertaken to settle the construction of the law so infinitely important to the United States? Would they have decided so important a question in a collateral, irregular manner on a point not immediately before them? And that also without the aid of the other three judges?
Even if they had done so, contended Mr. Martin, their decision “certainly deserves no credit as binding on this Court. As a binding judicial opinion it ought to have no more weight than the ballad or song of Chevy Chase.”
Mr. Martin alluded to Mr. Hay’s statement “with great zeal and pathos, that he pledged his own and the life of his children and posterity, on the propriety of the doctrine which he has advocated: that, if they avoid conspiracies, that if they be innocent, they will be safe.”
“A most delusive doctrine,” he exclaimed. And he warned Mr. Hay: “If he be now in the full tide of successful experiment, in the enjoyment of the approbation of his country and his government, so was, not long ago, the gentleman whom I advocate. He was as highly distinguished by the kind favor of the people as he could be by their suffrages.
“It was then incredible that their favor should so soon be changed to calumny and rancor of party into the most malignant hatred. The gentleman may now think himself perfectly safe, by the prevalence of his party and his principles; but the day very possibly may come when he may find himself as obnoxious as the gentleman whom I defend.
“He may possibly by the same means, the malice, the injustice and violence of party spirit, like my client, not only find himself reviled and calumniated, but his dearest friends abused and persecuted. I should be sorry that such a prediction should be realized with respect to any gentleman; but, such are the natural consequences of his own pernicious doctrine, and those we oppose.”
And now the speaker arrived at the end of his argument. Those of the assemblage whose minds may have wandered now and then in the course of Mr. Martin’s exposition of the technicalities of the law were brought to attention by the solemnity of his countenance and the careful weighing of his words:
“When the sun mildly shines upon us, when the gentle zephyrs play around us, we can easily proceed forward in the straight path of our duty. But when the bleak clouds enshroud the sky with darkness, when the tempest rages, the winds howl and the waves break over us—when the thunders awfully roar over our heads and the lightnings of heaven blaze around us—it is then that all the energies of the human soul are called into action.
“It is then that the truly brave man stands firm at his post. It is then that by an unshaken performance of duty man approaches the nearest possible to the Divinity. Nor is there any object in the creation on which the Supreme Being can look down with more delight and approbation than on a human being in such a situation and thus acting.”
The speaker turned to look straight into the eyes of the Chief Justice as he continued: “May that God who now looks down upon us, who has in his infinite wisdom called you into existence and placed you in that seat to dispose justice to your fellow citizens, to preserve and protect innocence against persecution—may that God so illuminate your understanding that you may know what is right; and may he nerve your soul with firmness and fortitude to act according to that knowledge.”