When Callender’s counsel contended that if the jury have a right to decide questions of law, then the constitution being the supreme law of the land, the jury must of course have the power of deciding on the constitutionality of a law; the judge might well say it was a non sequitur.
What has been allowed to the jurors as their incidental right on the general issue? Not to decide whether there is an existing law, or whether a law is in force, but to declare the true construction of an existing law, and whether the case at issue comes within the true construction of such law.
But those who contend that the jury have a right to determine the constitutionality of a law, insist not for the power of the jury to decide its true construction and whether the prisoner’s case comes within it, but to decide whether what is produced as law is not void, a mere nullity, a dead letter; or in other words, whether such a law is in existence. The maddest enthusiasts for the rights of jurors, their most zealous advocates, have never contended for such a right before the cases of Fries and Callender. Whether a law exists, whether a law has been enacted, whether a law has been repealed, whether a law has become obsolete or is in force? The decision of these questions hath always been allowed the exclusive right of the Court. The power of the Court to decide exclusively upon these questions hath never been before controverted. Nay, the very right claimed on behalf of jurors, that they may determine what is the true construction of the law, and whether the case is within its provisions, of itself necessarily presupposes, and is predicated upon the existence of a law, the construction or meaning of which they are to determine. It has indeed been seriously questioned, and that by gentlemen of great abilities, whether even the Judiciary have a right to declare a law, passed by the Legislature, to be contrary to the constitution and, therefore, void! I shall not enter into an examination of that question, but I have no hesitation in saying that a jury have no such right, that it never was intended they should have such right, and that if they had the right, we might as well be without a constitution.
The first specific instance of my client’s unjust, partial, and intemperate conduct, which is stated in this fourth article is, that he compelled the traverser’s counsel to reduce to writing the questions which they meant to propound to Colonel Taylor. The correctness of this procedure will depend on the question whether the Court had by law such a power, for if such a power was possessed by them, it is to be presumed that they, on that occasion, exercised it according to their best discretion, nor can it be inferred that their conduct was criminal, because the procedure was novel in Virginia. There are cases in which the practice of a court may be considered the law of the court; but these are not in any manner analogous to the case in question; nor do I find the practice of the State courts is obligatory “in any case of this kind on the courts of the United States.” My honorable client did not consider what was usual in Virginia, but what was correct and proper; he knew that the law authorized him to make this demand. In Maryland, where he imbibed his legal knowledge, and where at the bar and on the bench he had carried it into practice, nothing was more common than for questions to be reduced to writing at the request of counsel, or at the request of the Court. If counsel doubt of the propriety of the evidence meant to be drawn from the witness, or the correctness of the question meant to be propounded to him, they have a right to request it to be reduced to writing. So also, if the Court, without whose approbation no testimony can be given to a jury, and whose duty it is to prevent improper testimony to be given, has reason to suspect an intention to introduce such evidence, they have a right, and they ought to require the questions to be reduced to writing, that there may be no misapprehension of the tendency of the question, and that they may more deliberately decide whether it is proper to be put to the witness. And in this case, the counsel were not required to reduce their questions to writing in the first instance, or before they had stated what they had meant to prove, as hath been suggested. When Colonel Taylor was called and sworn, the Court desired to be informed what they meant to prove by him. McNally is an authority that in so doing they acted legally. The counsel stated the facts, to prove which Colonel Taylor was called; upon which, the Court doubting the admissibility of the testimony directed the question to be reduced to writing for their consideration. It cannot for a moment be seriously contended, but that the Court had a right so to do. As my respectable colleague (Mr. Key) has observed, the practice of this honorable Court during this trial, hath perfectly sanctioned that part of my client’s conduct. If at any time a question has been put, the propriety of which hath been doubted, it has been directed to be reduced to writing. It is true, that this has been, principally, when an objection has been made by the counsel; but there can be no doubt, that if any honorable member of this Court had apprehended the question to be improper, the Court would have had a right, and would have directed the question to be propounded in writing for their consideration. The propriety, the principle, in each case is the same. On this part of the charge I need not dwell any longer.
The next instance of the judge’s conduct specified in this article is his refusal to continue Callender’s case to the next term, notwithstanding the affidavit filed, and the applications made. On this subject, I shall not make many observations as to the law; but I may venture to assert that the conduct of Judge Chase in this instance also appears to have been free from any corrupt or oppressive motive or design; no part of his conduct on this occasion has been produced to show that he entertained a disposition to prevent Callender from obtaining the testimony of his witnesses, or deprive him of the necessary time to procure their attendance. Let it be recollected that the first affidavit prepared and proposed to be filed in order to obtain a continuance of the cause was a general affidavit. By the laws of England a general affidavit is not sufficient to entitle the party to a continuance, and upon principles of law as adopted in England and the United States, at least in Maryland, a supplemental affidavit cannot in a case of this nature be received.
If, then, Judge Chase had wished that Callender should have been, at all events, prevented from a continuance of his cause, he would have suffered them to file their general affidavit.
Why should capital cases, rather than inferior crimes, be tried at the first court? The honorable Managers admit that it is the general rule not to continue, but to try at the first term, capital cases. Surely if indulgence, if delay is necessary in any case, it is in a capital case, where life is at risk; where an injury, if done, is irretrievable!
There are many reasons which show the propriety that prosecutions of every kind should be decided with as little delay as possible. One of the principles as to criminal jurisprudence, as Governor Claiborne has justly observed, is, that though punishments should be mild, yet they ought to be speedy; by having an immediate decision there is a great certainty that the criminal shall not elude justice by flight.
The next specification, in this article, of improper conduct in the judge, is, that he “used unusual, rude, and contemptuous expressions towards the prisoner’s counsel; and insinuated that they wished to excite the public fears and indignation, and to produce that insubordination to the law, to which the conduct of the judge did at the same time manifestly tend.” As to this part of the charge, there is but little of a legal nature contained in it, I shall, therefore, hastily pass over it. If true, it seems to be rather a violation of the principles of politeness, than of the principles of law; rather the want of decorum, than the commission of a high crime and misdemeanor. I will readily agree that my honorable client has more of the “fortiter in re,” than the “suaviter in modo,” and that his character may in some respects be considered to bear a stronger resemblance to that of Lord Thurlow than to that of Lord Chesterfield; yet Lord Thurlow has ever been esteemed a great legal character, and an enlightened judge.
But let me ask this honorable Court whether there is not great reason to believe that the sentiments my honorable client expressed with respect to the conduct of the counsel, and their object, was just and correct? What was the conduct of Callender’s counsel? Was it not such as immediately tended to inflame the minds of the bystanders, and to excite their indignation against the Court, and highly insulting to the judges? In the first place, they endeavored to obtain a continuance of the cause to the next court, merely with an intention to procure delay, and to prevent the cause being tried before Judge Chase, acknowledging that they had no hopes or expectation from any testimony to save their client if the law was determined to be constitutional; and yet they brought forward their client to swear just what they pleased, in order to procure this delay, with respect to the necessity of witnesses, whose testimony they acknowledged they were conscious could be of no service to them, and yet they wished the bystanders to consider the Court acting highly improper for not granting that continuance? Was this even to serve Callender? No, they avow they did not appear to serve him, but to serve the cause. Sir, it appears from their own evidence that Callender would have submitted to the Court, but for their interference; that they volunteered on the occasion not for him, but for their cause; and yet the volunteers wanted the Court to give them to another term to prepare themselves, and made Callender swear what they pleased to effect their purpose. They said they were not well acquainted with the law upon libels, and therefore wanted time to examine the subject; but surely when persons undertake to volunteer their services on any subject, they ought to be masters of it, and are entitled to no indulgence of delay. And as they declare they had formed the determination, on the first instance of an indictment under the sedition law, to come forward and volunteer their services for the sake not of the man, but of their cause, common decency to the Court, and a proper respect for themselves, ought to have dictated to them in the interim to have made themselves fully acquainted with all the law relative to that subject in which they had thus determined officiously to interpose.