The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815. Beveridge Albert Jeremiah
been so before; but such a law applied only to deeds committed after, and not to those done before, its passage. Yet if an officer might, years after the event, be impeached, convicted, and punished for conduct perfectly legal at the time, "could the officers of Government ever know how to proceed?" Establish such a principle and "you leave your judges, and all your other officers, at the mercy of the prevailing party."
Had Chase "used unusual, rude and contemptuous expressions towards the prisoner's counsel" in the Callender case, as the articles of impeachment charged? Even so, this was "rather a violation of the principles of politeness, than the principles of law; rather the want of decorum, than the commission of a high crime and misdemeanor." Was a judge to be impeached and removed from office because his deportment was not elegant?
The truth was that Callender's counsel had not acted in his interest and had cared nothing about him; they had wished only "to hold up the prosecution as oppressive" in order to "excite public indignation against the court and the Government." Had not Hay just testified that he entertained "no hopes of convincing the court, and scarcely the faintest expectation of inducing the jury to believe that the sedition law was unconstitutional"; but that he had wished to make an "impression upon the public mind… What barefaced, what unequalled hypocrisy doth he admit that he practiced on that occasion! What egregious trifling with the court!" exclaimed Martin.
When Chase had observed that Wirt's syllogism was a "non sequitur," the Judge, it seems, had "bowed." Monstrous! But "as bows, sir, according to the manner they are made, may … convey very different meanings," why had not the witness who told of it, "given us a fac simile of it?" The Senate then could have judged of "the propriety" of the bow. "But it seems this bow, together with the 'non sequitur' entirely discomfitted poor Mr. Wirt, and down he sat 'and never word spake more!'" By all means let Chase be convicted and removed from the bench – it would never do to permit National judges to make bows in any such manner!
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."544
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!"545
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.546 Martin then quoted with telling effect from Franklin's denunciation of newspapers.547 "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."548
Throughout his address Martin mingled humor with logic, eloquence with learning.549 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."550
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."
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