But it is stated that Judge Griffin concurred with him in opinion, and this is insisted upon by the accused in different parts of his answer, as an excuse for the errors he committed, if, as he states, they were errors. This seems to be a kind of forlorn hope resorted to, when all other expedients fail. To this argument of the judge I would in this place answer, once for all, that it can be no excuse for him, nor any justification of his offences, that another has been equally guilty with himself; and it must strongly prove the weakness of his defence to rely upon this ground. Though Judge Griffin has not yet been called to an account for his conduct on this occasion, that is no reason why he should not hereafter be made to answer for it. The nation has not said he was innocent, or that he will not be proceeded against for this conduct; and there is no limitation of time that would screen him from the effects of charges of this kind, if they should be brought forward and supported against him hereafter. No ground of excuse therefore can arise from the circumstance of Judge Griffin not having been called upon to answer for his conduct in this respect.
I will now proceed to notice very briefly the conduct of the judge in the subsequent part of this trial. Compelling the defendant’s counsel to reduce to writing all questions to be asked the witness, was a direct innovation on the practice in our courts of justice, and tended to embarrass the management of and weaken the defence. It is proved by the testimony of all the witnesses, that no such practice ever prevailed in our courts of justice, for such a purpose as that avowed in this instance; the only cases in which it is required to reduce to writing questions to be asked a witness, and the only cases in which it can be proper or consistent with reason and justice to do so, are those in which an objection is made to a question proposed to be asked, on the ground of its being improper and contrary to the rules of evidence; and in order to ascertain the precise meaning and effect of the question, so as to decide on the objection made to it, it may be proper to require it to be reduced to writing, but it never was before done, so far as we can discover, for the purpose of ascertaining how far the witness could prove the matter in question, and whether he could prove the whole of one charge or not, and thereby decide whether the witness should or should not be examined. According to this rule the judge would first try the cause himself upon the evidence offered, by the questions thus reduced to writing, and if he did not consider such evidence fully sufficient to support the whole of the charge or case to which it was offered, he would reject it, and not permit the jury to hear a word of it, lest they might consider it stronger than he did, and give it sufficient weight to support the case to which it was offered. This mode of proceeding was left to be discovered and adopted by Judge Chase.
Barely to notice the conduct of the respondent, at Newcastle in Delaware, as charged in the seventh article, is sufficient to show that he was there actuated by the same spirit of persecution and oppression that has, as already stated, marked the whole of his conduct during the course of these transactions. That he should descend from the elevated and dignified station in which he was placed as a judge, to hunt for crimes as a common informer against his fellow-citizens; urge the jury to take notice of, and present certain persons sufficiently designated though not named; and press the attorney for the district to search for evidence among the files of newspapers to support a prosecution, was degrading to the sacred character of a judge, and was perverting the judicial authority to a mere engine of persecution to answer party purposes. Of the same complexion with this is the conduct of the respondent in delivering an inflammatory and disorganizing charge to the grand jury at Baltimore, as stated in the eighth article of the impeachment. This proceeding evinced a mind inflamed by party spirit and political intolerance; it was calculated to disturb the peace of the community, and alarm the people at the measures of Government: to force them by the terror of judicial denunciation to relinquish their own political sentiments and adopt those of the judge. This was the favorite object of this whole proceeding, and to obtain it no means were left untried. It was attempted to excite the fears of the public mind, to destroy the confidence of the people in the administration of their Government. The judicial authority was prostituted to party purposes, and the fountains of justice were corrupted by this poisonous spirit of persecution, that seemed determined to bear down all opposition in order to succeed in a favorite object. Citizens of all descriptions felt alarmed at this new and unusual conduct. All the counsel at the bar, wherever the respondent went, though consisting of the ablest and most enlightened in the nation, were agitated into a general ferment, and the whole community seemed shocked at such outrages upon common sense; for to go to trial was to go to certain conviction. Is this, Mr. President, the character that ought to distinguish the Judiciary of the United States? No, sir. The streams of justice that flow from the American bench ought to be as pure as the sunbeams that light up the morning. The accused should come before the Court, with a well-founded confidence that the law will be administered to him with justice, impartiality, and in mercy. When this is the case, he submits without a murmur to his fate, and hears the sentence of condemnation pronounced against him, with a mind that must approve the justice of the law and the impartiality of those who administer it.
The decision of this cause may form an important era in the annals of our country. Future generations are interested in the event. It may determine a question all-important to the American people; whether the laws of our country are to govern, or the arbitrary will of those who are intrusted with their administration. Mr. President, we, on this important occasion, behold the rights and liberties of the American people hover round this honorable tribunal, about to be established on a firm basis by the decision you will make, or sent afloat on the ocean of uncertainty, to be tossed to and fro by the capricious breath of usurped power and innovation.
Mr. Clark addressed the Chair as follows—Mr. President: I rise only to make a few remarks on two of the articles, the fifth and sixth, that the counsel for the respondent may be possessed of all the points we mean to make. I will endeavor, in a few words, to state the practice which we think ought to have been pursued in the case of Callender. The practice in the federal courts is regulated by that in each State. If this position be correct, we contend, that the proper process in the case of Callender was a summons. An act of Virginia, passed in the year 1792, provides that the grand jury “shall present all treasons, murders, felonies, or other misdemeanors whatsoever, which shall have been committed or done within the district for which they are impanelled.”
By another act of Virginia, passed in the same year, it is enacted that, “upon presentment made by the grand jury of an offence not capital, the Court shall order the clerk to issue a summons or other proper process against the person or persons so presented, to appear and answer such presentment at the next Court, and thereupon hear and determine the same according to law.”
In this last provision, the words, “or other proper process,” have a direct application to the previous provision, which enacts that the grand jury shall present all treasons, murders, felonies, “or other misdemeanors.” For treasons, murders, and felonies, we admit that a capias is the proper process; and when the law directs other proper process, it had reference to a class of crimes where a capias was required. It is in vain alleged, that the counsel for Callender made no objection to the process issued. They were not at that time to be considered as his counsel; it was only after he was brought into court that their duty commenced.
Further, whether the proper process was a capias or summons, the law of Virginia requires that it shall be returnable to the next Court; and I contend that this point is established by the English practice. To show which I refer to Hawkins’s Pleas of the Crown, where it is stated that a venire facias, which is in the nature of a summons, is the proper process, and that it is returnable to the next Court.
It was surely, then, the duty of the judge to be acquainted with the laws of England, however unacquainted he may have been with the laws of Virginia. He cannot, therefore, on this ground, attempt a justification from ignorance. In his answer he informs us that ignorance of the law is no excuse. If it is no excuse in an unlettered individual, shall it constitute the apology of him who was expressly appointed to expound the law and administer justice? And if, on this occasion, he was not acquainted with the law, did it, therefore, become him to proceed with such fatal precipitancy? No sooner was the presentment made than the marshal, before any indictment was brought in, was despatched after Callender. We can only account for this by supposing that it was the intention of the judge to act in conformity to his previous declaration, however jocularly it may have seemed to have been made; and that this was one of the means he had determined to pursue in order to convict Callender, regardless of the dignity of his station or the innocence of the man. Having offered these remarks, I am instructed to say that the case is fully opened on the part of the prosecution.