Abridgment of the Debates of Congress, from 1789 to 1856, Vol. 3 (of 16)

by United States. Congress

In the view which I propose taking on this subject, I shall in the first place notice the provisions in the constitution relative to impeachment, and endeavor to ascertain the precise object and extent of such provision, so far as the same may relate to the present case.

The first provision in the constitution on this subject, (art. 1st, sec. 3,) declares, that the Senate shall have the sole power to try all impeachments. Here we discover the great wisdom of the framers of the constitution. The highest and most enlightened tribunal in the nation is charged with the protection of the rights and liberties of the citizens against oppression from the officers of Government under the sanction of law; unawed by the power which the officer may possess, or the dignified station he may fill, complete justice may be expected at their hands. The accused is called upon before the same tribunal, and in many instances, before the same men, who sanctioned his official elevation, to answer for abusing the powers with which he had been intrusted. Men who are presumed to have had a favorable opinion of him once, are to be his judges; no inferior or co-ordinate tribunal is to decide on his case, which might from motives of jealousy or interest be prejudiced against him and wish his removal. No, sir, his judges, without the shadow of temptation to influence their conduct, are placed beyond the reach of suspicion.

The next provision in the constitution declares that judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.

Here the constitution seems to make an evident distinction between such misdemeanors as would authorize a removal from office, and disqualification to hold any office, and such as are criminal, in the ordinary sense of the word, in courts of common law, and punishable by indictment. So far as the offence committed is injurious to society, only in consequence of the power reposed in the officer being abused in the exercise of his official functions, it is inquirable into only by impeachment, and punishable only by removal from office, and disqualification to hold any office; but so far as the offence is criminal, independent of the office, it is to be tried by indictment, and is made punishable according to the known rules of law in courts of ordinary jurisdiction. As, if an officer take a bribe to do an act not connected with his office, for this he is indictable in a court of justice only. Impeachment, therefore, according to the meaning of the constitution, may fairly be considered a kind of inquest into the conduct of an officer, merely as it regards his office; the manner in which he performs the duties thereof; and the effects that his conduct therein may have on society. It is more in the nature of a civil investigation, than of a criminal prosecution. And though impeachable offences are termed in the constitution high crimes and misdemeanors, they must be such only so far as regards the official conduct of the officer; and even treason and bribery can only be inquired into by impeachment, so far as the same may be considered as a violation of the duties of the officer, and of the oath the officer takes to support the constitution and laws of the United States, and of his oath of office; and not as to the criminality of those offences independent of the office. This must be inquired into and punished by indictment.

Thursday, February 21.

Mr. Campbell, in continuation.

I will now proceed, as well as my indisposition will permit, to examine in a brief manner the second part of the subject, containing the several charges founded on the trial of Callender, at Richmond, as stated in the second, third, and fourth articles of the impeachment. I will consider these several articles in the order in which the transactions on which they are founded took place in court. In order to ascertain the motives that actuated the judge in this whole transaction, it will only be necessary to view his conduct as proved, so far as the same relates to this subject, previous to the trial. The first account we have of the intended prosecution, or I might say persecution, of Callender, is at Annapolis. Here the judge received the famous book called the “Prospect before Us,” and upon which the prosecution was founded, and here the determination was formed to convict and punish Callender. The respondent said he would take the book with him to Richmond; that the libellous parts had been marked by Mr. Martin, and that before he returned he would teach the lawyers of Virginia to know the difference between the liberty and licentiousness of the press; and that, if the Commonwealth of Virginia was not totally depraved, if there was a jury of honest men to be found in the State, he would punish Callender before he returned from Richmond. This is the evidence of Mr. Mason, nearly in his own words, and no person will pretend to doubt its correctness. What language could be used that would more clearly show the partiality and predetermination of the judge to punish Callender, and the spirit of persecution by which he was actuated? Again: on his way to Richmond, according to the evidence of Mr. Triplett, the judge reviles the object of his intended vengeance; states his surprise and regret that he had not been hanged in Virginia; remarks that the United States had shown too much lenity to such renegadoes; and after arriving at Richmond, informs the deponent he was afraid they would not be able to get the damned rascal at that court. Thus evincing in every stage of this business that intolerant spirit of oppression and vengeance that seems to have given spring to all his actions. After the indictment is found against Callender, the panel of the petit jury is presented to the judge; he inquires if he had any of the creatures called Democrats on that panel, directs the marshal to examine it, and if there were any such on it, to strike them off. This is the evidence of Mr. Heath, whose character and standing in society are known to many of the members of this honorable Court. And, though his evidence is opposed to the negative declarations of Mr. Randolph, who affirms that he did not present the panel of the jury to the judge, or receive such directions, yet I conceive the Court will give more weight to the affirmative declarations of Mr. Heath, with regard to these facts, than to the negative assertions of Mr. Randolph, who may have forgotten the transaction. This point rests upon the integrity and veracity of Mr. Heath. He could not receive the impression of these facts, unless the transaction had taken place; he could not reasonably be mistaken; the affair was new and extraordinary, and must have arrested his attention; and in this case there is no ground to make allowance for a treacherous memory, for it is not pretended that the witness, Mr. Heath, has forgot the facts, but that they never existed. If you do not, therefore, believe the statement he makes, it must follow that you admit the witness has wilfully and corruptly stated a falsehood. This, I presume, will not be admitted. But, on the other hand, Mr. Randolph may have forgotten the transaction in the bustle of business, and this will account for the difference in the evidence of the witnesses without impeaching the veracity of either. This mode of reconciling the evidence is agreeable to the rules of law. I take the facts, therefore, as stated by Mr. Heath, to be correct, and they afford an instance of judicial depravity hitherto unequalled and unknown in our country—a direct attempt to pack a jury of the same political sentiments with the judge to try the defendant. This is a faint representation of the previous conduct of the judge relative to this subject, before whom the defendant was about to be tried, or rather before whom he was to be called for certain conviction and punishment, for it ought not to be dignified with the name of a trial. With this view, therefore, of the temper and disposition of the judge, and of his previous conduct on this occasion, we will examine the first important step taken in the trial, in which the designs of the judge begin more clearly to unfold themselves, viz: his refusal to postpone or continue the trial until the next term, on an affidavit regularly filed, stating the absence of material witnesses and the places of their residence, being the second charge in the fourth article.

The next charge which I propose to examine is contained in the second article of the impeachment, and consists in the judge’s overruling the objection of John Basset, one of the jury, who wished to be excused from serving on the trial of Callender, because he had made up his mind as to the book from which the words charged to be libellous in the indictment had been drawn. The constitution secures to defendants charged with crimes, the right of a trial by an impartial jury; any thing, therefore, that goes to show that a man has made up an opinion with regard to the guilt or innocence of the accused, or with regard to the matter in question, or decided it in his own mind, proves him to be disqualified to serve as a juror, because it proves he is not impartial, has a bias upon his mind, and cannot be said to be indifferent. The same doctrine is supported by the laws of England. In order to show this, I will refer the Court to 3 Bac. Ab. (new ed.) 756, and also Co. Litt. 158; where it is stated, if a juror has declared his opinion, touching the matter in question, &c., or has done any thing by which it appears that he cannot be indifferent or impartial, &c., these are principal causes of challenge; and therefore such juror would be disqualified. Here it is manifest, that though declaring an opinion is good cause of challenge to a juror, if it is not necessary he should declare such opinion in order to disqualify him; it is sufficient that he has done something, whether making up an opinion, or doing any act whatever, by which it appears he is not indifferent, is not perfectly impartial.

The next charge to be inquired into, is that stated in the third article, in rejecting the evidence of Colonel Taylor, a material witness in favor of the defendant, on the pretence that he could not prove the truth of the whole of one charge. In this instance the judge acted contrary to all former precedents in courts of justice, and without the shadow of law or reason to justify his conduct. Not a solitary case could be stated by any of the witnesses of a similar conduct in a judge. The rule here adopted, with regard to the admissibility of evidence, would deprive the jury of their undoubted right to decide on the credibility and weight of evidence, as well as on the extent to which it proved the matter in question; would transfer in substance this right to the Court, and thereby shake to its very centre the fabric so justly admired, and held so sacred, of trial by jury. It would make it necessary for the party to present to the Court all the evidence relied upon to make out his case. This evidence, the Court or judge would first deliberately examine, compare it with the charges or case to be supported, and if it did not, in his opinion, prove the whole of one charge, or go the whole extent of the case to be established by it, he would reject it, and not permit the jury to hear it. This would strip the jury of the very prerogative that renders this kind of trial so much superior to all others, that of deciding on the weight and credit of evidence.